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Showing 181 to 200 of 1551 Records
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2024 (2) TMI 1371
Income deemed to accrue or arise in India - Taxability of income in India - salary income earned by the assessee for services rendered in Ireland - assessee being non-resident and covered under Article 15(1) of India - Ireland DTAA - HELD THAT:- Despite the submissions and evidence on record, AO erred in incorrectly holding that the Assessee was based in India and that the salary was taxable in India, where infact the salary was earned from BA PLC, Ireland and the services were rendered outside India.
DRP after perusing the documents submitted by the Assessee erroneously noted that there is a failure on the part of Assessee to provide agreement between Irish and Indian entity. Evidently, the ld. DRP failed to appreciate certificate / letter of reimbursement issued by BA PLC, Ireland substantiates the assessee's submission that during the impugned Assessment Year, the assessee was employed with BA PLC. Ireland and was paid salary in India merely for administrative convenience.
Salary income of the Assessee was not exigible in India under Article 15 of the DTAA - AO was not correct in not granting relief under Article 15 of the DTAA and disregarding that income is accrued where employment is exercised. As per the Article 15 of the DTAA between India and Netherlands, the income earned by the person is exempt from tax if following conditions are satisfied - If the person has not stayed for more than 183 days in India, and If the employment is exercised outside India.
In the present case, both the conditions prescribed in the Article 15 are satisfied. The first condition has not been disputed by the Assessing Officer, whereas the second condition has been justified by various evidences furnished by the assessee. The Assessing Officer himself in para 7 of the Assessment Order has accepted that the services were rendered outside India.
Therefore, it is hereby held that the assessee was a residing and exercising employment in Ireland under the complete control of BA PLC, Ireland for the impugned Assessment Year. Further, the salary was also borne by BA PLC, Ireland. Thus, the salary of the assessee derived from BA PLC, India on behalf of BA PLC, Ireland are duly considered exempt from tax in India.
Salary income earned by the assessee for services rendered in Ireland cannot be said to be deemed to accrue or arise in India under section 9 of the Act - if the services are rendered outside India, for which salary has been paid, then the income cannot be said to accrue or arise in India.
The contention of AO that the assessee rendered services from India in incorrect in light of the tax residency certificate for Ireland. The assessee for the year under consideration was a tax resident of Ireland - since the employment was not exercised in India, such income cannot be held to be taxable in India and hence, the addition made by the AO on this issue is hereby directed to be deleted. - Decided in favour of assessee.
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2024 (2) TMI 1370
Application u/s 197 for issuance of a Lower Deduction of Tax Certificate - bone of contention of petitioner is that the petitioner intended to submit an online document dated 1st April, 2023 and said document was not loaded because message was too large - Criticism is founded upon Rule 28-AA of the Income Tax Rules - HELD THAT:- Delhi High Court in the case of Cloudtail India Private Limited [2021 (8) TMI 1408 - DELHI HIGH COURT] opined that Rule 28AA is a statutory and mandatory provision. The revenue is under a statutory obligation to act in accordance with the mandate of Rule 28-AA. Even otherwise, this is trite that if a statute prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden. [See : Baru Ram v. Prasanni [1958 (9) TMI 85 - SUPREME COURT], Dhanajaya Reddy v. State of Karnataka [2001 (3) TMI 1020 - SUPREME COURT] and judgment of this Court [2011 (2) TMI 1628 - MADHYA PRADESH HIGH COURT] Satyanjay Tripathi v. Banarsi Devi].
A plain reading of Rule 28-AA makes it clear that the 'satisfaction' needs to be recorded/determined by A.O. after taking into consideration the four factors mentioned in sub-rule (2) of Rule 28-AA. Thus, it is not the subjective satisfaction of A.O., but an objective satisfaction which must be based on Clauses (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA.
If impugned order Annexure P-5 and more particularly Annexure P-7 is examined, it shows that all those four factors have not been taken into account. Pertinently, the factum of receiving Annexure P-3 and P-8 is not in dispute in the instant case.
Since impugned orders are passed in clear violation of Rule 28-AA, we are constrained to hold that decision making process adopted by the respondents runs contrary to the requirement of law, i.e. Rule 28-AA.
The scope of judicial review in a writ petition is limited. Ordinarily, the Court is not obliged to examine the correctness of the decision. Instead, the Court is obliged to examine the correctness of the decision making process. At the cost of repetition, in our opinion, the decision making process is faulty and impugned order Annexure P-5 and P-7 are passed without considering the relevant factors ingrained in Clause (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA.
Resultantly, both the impugned orders Annexure P-5 and P-7 are set aside. The matter is remitted back to respondent No. 2, who shall consider the claim of petitioner in accordance with law and pass a fresh detailed/speaking order thereupon within 30 days from the date of communication of this order.
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2024 (2) TMI 1369
Maintainability of petition - High Court held that Since the petitioner has a forum of appeal available before the CESTAT, the present writ petition is rejected, reserving the right of the petitioner to avail the remedy of appeal - HELD THAT:- There are no reason to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (2) TMI 1368
Maintainability of appeal - time limitation - Since the Tribunal under Section 112 of the CGST Act, before whom an Appeal would lie against the said Order, has not been constituted, the Petitioner has filed the present Petition - HELD THAT:- The contents of the letter dated 9th September 2022 clearly show that the Petitioner had not received the Order dated 31st March 2022 on 4th April 2022 or on any other date prior to 9th September 2022. By the said letter dated 9th September 2022, the Petitioner has clearly recorded that, despite the earlier Order dated 14th March 2022 of this Court directing the Respondents to decide the issue of cancellation of CGST registration of the Petitioner within four weeks from the date of appearance, and despite the Petitioner appearing on 22nd March 2022, even after a lapse of more than five months, the directions of this Court had not been obeyed and an Order had not been passed - the contents of this letter clearly show that the Petitioner had not received the said Order dated 31st March 2022 by e-mail on 4th April 2022, as contended by the Respondents.
It is an admitted position that the Petitioner had filed the Appeal on 20th December 2022. Since, the Petitioner had filed the Appeal within a period of three months from the date of communication of the said Order on 20th September 2022, by virtue of the provisions of Section 107(1) of the CGST Act, the Appeal filed by the Petitioner is within limitation.
The impugned Order dated 25th October 2023, which holds that the Appeal of the Petitioner is barred by limitation, will have to be set aside, and Respondent No. 2 will have to be directed to decide the Appeal of the Petitioner on merits - Petitioner’s Appeal is restored.
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2024 (2) TMI 1367
Seizure of cash by respondent no. 2 from the residential premises and office of the petitioner - HELD THAT:- Reference may be had to the judgment of this Court in M/S K.M. FOOD INFRASTRUCTURE PVT LTD THROUGH ITS DIRECTOR MUKESH KAPOOR AND MUKESH KAPOOR AND OTHERS VERSUS THE DIRECTOR GENERAL DGGI HEADQUARTERS, NEW DELHI & ANR. [2024 (2) TMI 762 - DELHI HIGH COURT] wherein in similar circumstances this Court while interpreting provision of Section 67 of the Central Goods and Services Tax Act 2017 has held that ‘cash’ is clearly excluded from the definition of the term ‘goods’ and would fall with the definition of ‘money’ as defined in Section 2 (75) of the Act. This Court has further held that since cash is not goods, it could not have been seized under the provision of the Act, as seizure is limited to the goods liable for confiscation.
The ratio of the said judgment squarely applied to the facts of the present case. Accordingly, there is no justification for resumption of cash and its continued retention by the respondents.
Accordingly, the petition is allowed and respondents are directed to forfeit/remit the said cash seized from the premises of the petitioner to the petitioner along with interest.
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2024 (2) TMI 1366
Validity of summons, intimation or SCN - GST liability under applicable GST laws either in respect of only seigniorage fee or both seigniorage fee and mining lease amounts paid by the respective petitioner to the Government - HELD THAT:- The Division Bench Judgment in a batch of cases where the lead case is TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [2024 (2) TMI 488 - MADRAS HIGH COURT] where it was held that Upon receipt of the objections / representations from the writ petitioners, the authority concerned shall proceed with the adjudication, on merits and in accordance with law, after affording reasonable opportunity of being heard to the petitioners. However, the orders of adjudication shall be kept in abeyance until the Nine Judge Constitution Bench decides the issue as to the nature of royalty.
In view of the said judgment, these petitions are liable to be disposed of on the same terms insofar as it relates to either the issue of seigniorage fee or mining lease. Consequently, in all these cases, the respective petitioner is permitted to submit his reply to the intimation, summons or show cause notice, as the case may be, within a maximum period of four weeks from the date of receipt of a copy of this order.
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2024 (2) TMI 1365
Levy of penalty u/s 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 - expired e-way bill - HELD THAT:- This Court is unable to agree with the findings of the authorities, and accordingly, the impugned orders dated December 11, 2017 and December 22, 2018 are quashed and set aside.
This Court directs the respondents to refund the amount of tax and penalty deposited by the petitioner within a period of four weeks from date - writ petition allowed.
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2024 (2) TMI 1364
Cancellation of GST registration of the petitioner with retrospective effect - no material on record to show as to why the registration is sought to be cancelled retrospectively - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
The order of cancellation is modified to the extent that the same shall operate with effect from 11.03.2022, i.e., the date of the application for cancellation of registration - Petition disposed off.
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2024 (2) TMI 1363
Cancellation of GST registration of the petitioner with retrospective effect - SCN does not give any reasons for cancellation of the registration - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The order of cancellation is modified to the extent that the same shall operate with effect from 26.11.2020, i.e., the date of the application for cancellation of registration - Petition disposed off.
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2024 (2) TMI 1362
Cancellation of GST registration of the petitioner with retrospective effect - notice does not specify any cogent reason - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period - the SCN and the impugned order are also bereft of any details and further there is no reasoning in the said show cause notice and in the impugned order as to why the cancellation has been done retrospectively.
The impugned show cause notice dated 07.09.2022, order of cancellation dated 01.05.2023 are accordingly set aside - Petition allowed.
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2024 (2) TMI 1361
Refund of the amount of tax deposited by him on the cancelled (old) registration - inadvertent / bona fide error on the part of the Petitioner’s Chartered Accountant in filing the returns and depositing tax under a cancelled registration number - HELD THAT:- It was required to be considered by the authorities below that an assessee cannot be expected to file his return and deposit any tax under an invalid cancelled registration number. Further, a legitimate and proper return was filed by the Petitioner under the second (new) registration which was a valid registration. Thus, insofar as the tax deposited under the first (cancelled) registration is concerned, the said registration itself being non-existent, the tax return filed thereunder and any tax deposited under such return, could not have been retained by the respondents as it was not a deposit as per law, it also cannot be a deposit received or any collection of tax under authority of law. Insofar as the second registration return is concerned, the same was appropriately filed and similar amount of Rs. 1,22,220/- was deposited.
In these circumstances, it was not correct for the original authority to furnish the reasons, as noted, so as to deny the refund claim of the Petitioner. Further, the appellate authority on a purely technical reason that the Petitioner’s appeal was barred by limitation under Sections 107 (1) and (4) rejected the Petitioner’s appeal.
It is observed that, in such circumstances, any deficiency in filing the appeal / application like failure to file physical documents, cannot make the appeal, which was registered on the online portal within the prescribed period of limitation, to be labelled and/or held to be barred by limitation. Once the appeal was filed (albeit under the Online method) within the prescribed limitation, any deficiency in the appeal certainly could be removed later on, as the law does not provide, that the proceeding be strictly filed sans deficiency, and only then, the proceedings would be held to be validly filed. If such proposition is to be recognized as the correct position, it would not only tantamount to a patent absurdity, but also would result in a gross injustice, prejudicially affecting the legitimate rights of persons to a legal remedy (access to justice).
Impugned order dated 8th June 2022, as confirmed by the order dated 27th February 2023 passed by the Assistant Commissioner, CGST and Central Excise, Division-I, Navi Mumbai, Commissionerate are quashed and set aside - Petitioner is entitled to refund of the amounts which was deposited by him under the erroneous return filed under the cancelled registration No. 27AQEPM6029PIZA being an amount of Rs. 1,22,220/- - petition allowed.
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2024 (2) TMI 1360
Violation of principles of natural justice - no opportunity of personal hearing was granted to the petitioner - case of petitioner is that in spite of seeking the Special Investigation Branch Report (SIB report), no SIB report was provided to the petitioner - HELD THAT:- The impugned orders are liable to be quashed and set aside.
This Court issues a writ of certiorari quashing the orders dated December 16, 2021 and November 8, 2023 with a direction upon the officer concerned to provide a copy of the SIB report to the petitioner within three weeks from date and subsequent to providing the SIB report, opportunity of hearing must be afforded to the petitioner before passing final order under Section 74 of the Act - the writ petition is allowed.
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2024 (2) TMI 1359
Condonation of delay in filing appeal - appeal dismissed on the ground of limitation, as the same was filed approximately 73 days beyond the date of limitation - HELD THAT:- Section 107 of the GST Act prescribes a specific limitation period within which appeals against certain decisions must be filed. This limitation period is integral to the functioning of the appellate mechanism under the GST Act and reflects the legislative intent to expedite the resolution of tax disputes. By imposing a time limit on the filling of appeals, Section 107 aims to prevent undue delayed in the adjudication process and promote the efficient administration of the GST regime. On the other hand, Section 5 of the Limitation Act provides for the extension of prescribed periods in certain exceptional circumstances, such as when sufficient cause is shown for the delay.
In analyzing the conflicting interpretations concerning the exclusion of Section 5 of the Limitation Act as far as Section 107 of the GST Act is concerned, it is essential to consider the rationale behind the exclusion of the Limitation Act in certain special statues, particularly in the context of taxation. Tax laws are often characterized by strict procedural requirements and time-bound deadlines, reflecting the need for expeditious resolution of tax disputes to ensure revenue certainty and fiscal stability.
The judgment rendered by the Calcutta High Court in the matter of S.K. Chakraborty & Sons [2023 (12) TMI 290 - CALCUTTA HIGH COURT] fails to adequately consider the authoritative pronouncements of the Supreme Court in the cases of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] and Hongo India [2009 (3) TMI 31 - SUPREME COURT] and hence the said judgment is of no precedented value, and accordingly, the view expressed therein is not accepted by this Court.
Taxing statutes like the GST Act embody a comprehensive framework with specific limitation provisions tailored to expedite the resolution of tax-related matters. Section 107 of the GST Act, operates as a complete code in itself, explicitly delineating limitation periods for filing appeals and implicitly excluding the application of general limitation provisions such as Section 5 of the Limitation Act.
The present writ petition is without any merit and is dismissed.
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2024 (2) TMI 1358
Maintainability of appeal - time limitation - whether the appeal has been filed within stipulated period (i.e. thirty days from the date on which the Ruling sought to be appealed against is communicated to the Appellant) prescribed under Section 100 (2) of CGST Act, 2017 or not? - HELD THAT:- The date of communication of the Order of AAR, Rajasthan to the Appellant was 21.09.2021 and the appeal was filed on the portal on 19.10.2021 - the Appellant have filed the appeal within statutory period of 30 days of date of communication of the Order of AAR.
Classification of service - provision of service including supply of material amounting to transfer of property in goods - whether the activities undertaken are/were classifiable either under SAC Heading No. 9986 eligible for rate of tax prescribed vide entry serial number 24(ii) or alternatively under SAC Heading No. 9983 eligible for rate of tax prescribed vide entry serial number 21(ia) of Notification No. 11/2017-CT(R), dated 28.06.2017? - HELD THAT:- The Appellant have not denied the fact that supply of service under the EPC Contract in question also involves transfer of property in goods. The only contention by the Appellant in this regard is that the scope of SAC Heading No. 9986 does not exclude Works Contract Service. As can be seen from the appeal as also from the EPC Contract, the Appellant have been assigned the work related to establishment of infrastructure for the proposed expansion in the production and processing capacity. As mentioned in Para-D1-8 titled General Design Guidance, the new surface facilities shall be designed for design life of 25 years and new well pads are to be connected with an independent fiber optic cable upto existing RGT terminal.
The Appellant are obliged by the contract for satisfactory handover of complete RDG Gas Processing Terminal including Non Process Buildings, receiving end substation at RDG Terminal including roads and drains within RDG Terminal, Intra-field Pipeline, irrigation water pipeline and approach roads between well pads to the Company M/s Vedanta Limited, complete with applicable hook-up & tie-in with the existing & proposed facilities. This provision of the contract makes it amply clear that the Appellant have been assigned the work of establishment of new facilities for natural gas extraction alongside the already existing facilities at the RDG.
Since, the Appellant have been tasked with establishment of infrastructure facilities for oil and gas extraction, the activities undertaken by the Appellant in pursuance of the EPC Contract cannot, by any stretch of imagination, be said to be support services to oil and gas extraction. The distinction between the activities undertaken by the Appellant in terms of the EPC contract and the activities included in the definition of SAC Heading No. 998621 is strikingly clear. Therefore, the activities undertaken by the Appellant in pursuance of the EPC Contract cannot be classified under SAC Heading No. 998621 as these are not in the nature of support services to oil and gas extraction.
So far as SAC Heading No. 998343 is concerned, the same has a very narrow scope/limited coverage of mineral exploration and evaluation information which is certainly not the activity proposed to be undertaken by the Appellant in pursuance of the instant EPC Contract - SAC Heading No. 998341 covers a wide range of activities which include provision of advice, guidance and operational assistance concerning the location of oil and gas fields including feasibility studies - the Appellant have not proposed to undertake any such activity rather the Appellant have proposed to undertake establishment/ creation/ construction of infrastructure facilities for oil and gas extraction which are quite different and distinct from the advice concerning location of gas fields.
SAC Heading No. 9954 of the Scheme of Classification covers the overall construction services with SAC Heading No. 995425 the general construction services of mines and industrial plants. The explanatory notes clarify that the said service code includes construction services for mining and related facilities associated with mining operations. Since, oil and gas exploration is also a form of mining; therefore, the construction services proposed to be supplied by the Appellant for creating gas extraction facility enhancing the existing production capacity are appropriately classifiable under the SAC Heading No. 9954.
Entry SI. No. 3(ii) of Notification No. 11/2017-CT (R), dated 28.06.2017 was omitted with effect from 01.04.2019 and, therefore, the supplies proposed to be undertaken by the Appellant could not have been eligible for the rate prescribed therein. However, we observe that up to Notification No. 3/2019-CT (R), dated 29.03.2019, major changes have been made in the said entry under SI. No. 3 of the basic Notification No. 11/2017-CT (R), dated 28.06.2017 to provide for different rates of tax for supplies under the categories of supply of construction services or supply of works contract services - the item (xii) of entry at SI. No. 3 of Notification No. 11/2017- CT (R), dated 28.06.2017, as amended up to Notification No. 3/2019-CT (R), dated 29.03.2019 prescribes Central Tax @ 9% on the supplies proposed to be undertaken in terms of the EPC Contract and therefore, the supplies proposed to be undertaken by the Appellant attract tax at the rate of 18%. The Ruling pronounced by the AAR, therefore, needs to be modified up to that extent.
The appeal is disposed of.
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2024 (2) TMI 1357
Scope of Advance Ruling application - classification of product Keer Kokil - tobacco premixed with lime to be classified as "unmanufactured tobacco without lime tube" falling under Chapter 2401 or not - HELD THAT:- In the instant case, this Authority finds that this appeal has been filed against the decision of the AAR. Rajasthan under Section 104 of the CGST Act, 2017. It is noted that no remedy lies before this authority against this decision. The revenue have also raised contentions against AAR, Rajasthan Ruling dated 01.06.2022. It is noted that no appeal was filed against the AAR Order dated 01.06.2022. The instant petition cannot be treated as an appeal by default; that will be time-barred too. It is noted that the instant appeal is not an appeal under Section 100 against the order passed under Section 98(4) or 98(5) of the CGST Act. 2017. Thus, it is outside the purview of the domain of this Authority. As a statutory authority with a specified statutory role, this authority cannot venture into any other area beyond what is prescribed in law’.
The instant appeal filed by CGST, Udaipur before AAAR against the letter dated 11.07.2023 issued by AAR - Rajasthan is not maintainable.
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2024 (2) TMI 1356
Scope of Advance Ruling - Service recipient is Government Entity or not - services provided by the Appellant in respect of work order No. TN-483 for Operation and Maintenance of identified 33/11 KV Grid Sub-Stations to Jaipur Vidyut Vitran Nigam Limited - exempt vide serial number 3 of Notification No. 12/2017 - Central Tax (Rate) dated 28.06.2017 or not - HELD THAT:- The law covers two kinds of supplies under the purview of the AR mechanism : (i) Supplies being undertaken - meaning thereby supplies which have begun, but not concluded. Once the supply has been concluded, it will cease to be covered by the term “being undertaken''; (ii) Proposed to be undertaken - in the instant ease the supplies have already been concluded. Thus, as the name implies, the pronouncement with respect to them shall no longer be in the nature of “Advance”. As such, these supplies cannot be covered by the Advance Ruling Mechanism.
The Authority for Advance Ruling, Rajasthan is right on not pronouncing the Ruling on Merits.
Further, the Appellant has contended that they are engaged in such work/supply regularly and wanted to know the taxability of the transaction for future references. In this context, it is found that the impugned Ruling has been sought only for the specific Work Order No TN-483 for Operation and Maintenance of identified 33/11 KV Grid Sub-Stations awarded by Jaipur Vidyut Vitran Nigam Limited to the appellant. Supplies under the work order have been undertaken during the period from 01.11.2019 to 30.04.2021. It is not in dispute that the supply has already been completed. Thus, the question of entertaining any application subsequent to the period for which supply has already been completed, does not arise.
The Ruling pronounced by the Authority for Advance Ruling. Rajasthan vide Order dated 01.06.2021 is right and needs no interference at this forum and the same is upheld.
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2024 (2) TMI 1355
Classification and rate of GST - Parts of fuel injection pumps supplied by the Applicant - Assy Head & Rotor - X Roller & Shoe Kit - TP Blade/ Spring Kit (Set of 4 Nos) - TP Liner - Kit Excess Piston - Hyd head Assy for Tata Ace - to be classified under Tariff Heading 84139190? - SI. 117 of Schedule II of IGST Goods Rate Notification on supply of said parts.
Whether the said 6 parts of fuel injection pumps fall under the CTH 84139190? - HELD THAT:- These items cannot be placed under CTH 84139110(Parts of pumps - of reciprocating pumps) or CTH 84 139130(Parts of pumps - of other rotary pumps) as they are specific entries and the same could be done only if the Fuel Injection pumps were classified under CTH 841350 (other reciprocating positive displacement pumps) or CTH 841360(other rotary positive displacement pumps). Whereas, it is not the case so and the Fuel Injection pumps for diesel engines are classified correctly under CTH 84133010 and thereby, the said 6 parts of Fuel Injection pumps are correctly classifiable under the residual entry for Tarts of pumps - others - CTH 84139190.
Rate of GST to be levied on the said 6 parts of fuel injection pumps - HELD THAT:- Fuel injection pumps for diesel engines are classified under the CTH 84133010. These are covered under Schedule IV of the rate notification No. 01/2017-Integrated Tax (Rate) dated 28.06.2017 attracting a tax of 28% - in the description of goods, the entry covers only the pumps [8413 11 and 8413 30] and not their parts. It is found that this necessitates to place the parts of pumps under correct entry of the rate notification No. 01/2017-Integrated Tax (Rate) dated 28.06.2017.
The 'Parts of pumps- others' which remain classified under Heading 8413 9190 will fall under the residuary rate entry i.e., SI. No. 453 of Schedule III (extracted above) which attracts 18% IGST, for the reason that they are not classifiable elsewhere.
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2024 (2) TMI 1354
Availment of ITC of differential IGST paid - Whether the provisions prescribed under the Goods and Services Tax (‘GST’) law imposes any restriction on availment of ITC of the differential IGST paid post on-site audit by Customs authorities? - To be treated as voluntary paid or not - HELD THAT:- It could be seen that in respect of both the Sections 73 and 74 meant for demand and recovery, sub-sections (5) and (6) provides the taxpayer with a window for avoidance of show cause notice, provided the taxpayer comes forward to discharge the tax liability cither on the basis of his own ascertainment, or on being ascertained by the proper officer. However, the crucial difference lies in the fact that while Section 73 stipulates payment of tax along with applicable interest, Section 74 on the other hand stipulates that the tax along with applicable interest and a penalty equivalent to fifteen percent of such tax, should be paid, for such avoidance of show cause notice.
Further, it could be seen that under the demanding provisions of CGST/TNGST Acts, 2017, except for the provisions of Section 74(5), penalty under fifteen percent could not be found elsewhere under the said legal provisions. In the instant case, the fact that a penalty at 15% has been paid on the tax amount determined by the audit officers, goes to prove that the differential tax has been determined under the provisions of 74(5) of the CGST/TNGST Act, 2017, which in turn involves determination of tax by reason of wifful-misstatement or suppression of facts.
That the subject goods have been mis-classified by the applicant initially, points to the fact that the applicant has resorted to willful -misstatement to evade tax, which came to light only when the transaction of the applicant’s unit was taken up for audit - it becomes clear that the instant case has to be construed as a case of determination of tax by reason of willful-misstatement to evade tax, in spite of the fact that no show cause notice was issued, or no order was passed in the instant case. Under these circumstances, the differential IGST paid by the applicant docs not become eligible for availment of ITC as laid down under Section 17(5) of the CGST/TNGST Act, 2017.
Once the basic issue involving the availment of ITC on the differential tax paid is found to be inadmissible in the instant case, it is opined that the remaining two queries, relating to the time limit prescribed and the documents evidencing payment to be considered as a valid duty paying document, are rendered redundant, as both the queries are in relation to the differential tax paid in the instant case - the law imposes restriction on the availment of ITC under Section 17(5) of the CGST/TNGST Act, 2017, in respect of any tax ‘not paid / short paid’ in accordance with the provisions of section 74, irrespective of the fact as to whether the proceedings are initiated on the basis of audit or on the basis of an anti-evasion operation, and irrespective of the fact whether a show cause notice is issued in the instant case or not.
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2024 (2) TMI 1353
Appropriate classification of the product ‘Clear Bloat Glass’, which is imported and traded by the Applicant - whether the said product is classified under CTH 70052990 or to be classified under the CTH 7005 1090?.
Whether the subject goods ‘Float Glass’ is wired or not wired glass? - HELD THAT:- It is found that no wire mesh is reinforced in the glass during the manufacturing process. Hence the subject goods is ‘Non-wired Glass’. Coming to the next part of the description of the chapter heading 7005 10 i.e. absorbent, reflecting or non-reflecting layer, from the above chapter notes, in specific, under 2(c), it is found that what is intended to be classified under the hearing 7005 10 is glass coated with an absorbent, reflecting or non-reflecting layer, ft is made clear, in this notes that the absorbent layer is a microscopically thin coating of metal or metal oxide which has to be applied during the manufacturing process itself to the glass before the process of annealing, so as to not regard the glass as worked upon, as stated in notes 2(a).
Whether the layer of tin present in the float glass will satisfy the requirement as an absorbent layer, reflecting or non-reflecting? - HELD THAT:- Beyond the regular process of manufacture of float glass, no additional coating of any layer, as mentioned in the explanatory notes above, which would serve as an absorbent, reflecting or non-reflecting layer is carried out. The argument of the Applicant that tin layer is the absorbent layer, cannot be accepted as tin is not used in float glass process with the specific objective of providing any absorbent, reflecting or non-reflecting layer. It is evident that the presence of tin is by default and on account of manufacturing process and not by design or intended to add a layer with any of the properties such as absorption or reflection or non-reflection. Thus the tin layer is incidental to the manufacturing process of float glass and is not done specifically for an intended purpose/use.
The float glass has not undergone any coating process for presence of an absorbent, reflecting or non-reflecting layer and hence cannot be classified under sub-heading 7005 10. Further, as it is also not coloured throughout the mass (body tinted), opacified, flashed or merely surface ground, the item would not be covered under the sub-heading 7005 21. Hence the appropriate classification for ‘clear float glass’ would be under the tariff sub heading 7005 29 as ‘Others’. At the eight digit level, if the item is ‘tinted’, it would be classifiable under the CTH 7005 2910 and if the item is ‘non-tinted’, it would be classifiable under CTH 7005 2990 of the Customs Tariff Act, 1975.
The Applicant is an importer as well as a trader - As a trader, for trading the same goods imported in that particular consignment, the Applicant has to follow the classification approved and assessed by the Customs Authorities for that consignment, for which duty was paid by them agreeing to/accepting the assessment. The question of following a different CTH for trading purposes, for the same goods imported and assessed, does not arise.
The appropriate classification for ‘clear float glass’ is under the tariff sub-heading 7005 29 as ‘Others’ and at the eight digit level, if the item is ‘tinted’, it is be classifiable under the CTH 7005 2910 and if the item is ‘non-tinted’, it is be classifiable under CTH 7005 2990 of the Customs Tariff Act, 1975.
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2024 (2) TMI 1352
Classification of the services provided by the applicant - bio-mining and waste remediation services - applicant who are into Solid Waste Management services, has been assigned with the task of "Remediation of open dump and reclamation of open dump and reclamation of space at Ajjagondanahalli, Tumakuru" - services provided by the applicant are exempted under SI. No. 3 of Notification No. 12/2017 dated 28.07.2017 as amended or not - service recipient i.e., M/s. Tumkur Smart City Corporation is a "Governmental Authority" as per the definition of Notification No. 12/2017-CT dated 28.06.2017 or not.
Classification of the services provided by the applicant - HELD THAT:- 'Site remediation' in the instant case gets covered under Group 99944, and more specifically under SAC 999441, as the applicant is assigned with the task of "Remediation of open dump and reclamation of open dump and reclamation of space at Ajjagondanahalli, Tumakuru". However, the objective of the project is not just land reclamation but also bio mining of waste, which involves processing of waste and disposal of the same as well. Therefore, this part of the operation gets covered under Group 99943, and more specifically under SAC 999433, which relates to 'Non-hazardous waste treatment and disposal services'. Accordingly, we are of the opinion that broadly, the entire operation undertaken by the applicant in this case gets covered under SAC heading 9994, attracting 18% GST.
Whether services provided by the applicant are exempted under SI. No. 3 of Notification No. 12/2017 dated 28.07.2017 as amended? - HELD THAT:- The service 'Site remediation and bio mining of waste', docs not fall under the category of cither Works Contract', or 'Composite supplies'. Further, as no supply of any goods is involved in the instant case, and as said operation gets carried out by deployment of manpower/labour, it is clear that the service rendered by the applicant qualifies as 'pure services' - By virtue of Government Notification No. HUD 474 MLR 95, dated 10.10.1995, Tumkur was specified as "City Municipal Council Area", and vide Notification No. UDD 154 MLR 2013, Bangalore, Dated 20.12.2013, Tumkur was specified as a "Larger Urban Area" and Tumkur Corporation was established. Accordingly, we find that the city of Tumkur, (now Tumakuru) was already a Municipality which later attained the status as a Municipal Corporation. Tumakuru has also been identified as one among the 100 cities in India to be covered under the 'Smart Cities Mission' launched by the Government of India. Therefore, the Tumakuru City Corporation qualifies as a "Local Authority".
Whether the activity is a function entrusted to the Municipality under Twelfth Schedule to Article 243W of the Constitution? - HELD THAT:- The services rendered by the applicant in the instant case happens to be 'Pure Services' provided to Tumakuru City Corporation which is a 'Local Authority', by way of any activity in relation to any function entrusted to a Municipality under article 243W of the Constitution. Accordingly, we conclude that the services provided by the applicant to the Tumakuru City Corporation is exempted under SI. No. 3 of Notification 12/2017 dated 28.07.2017, as amended.
Whether the service recipient i.e., M/s. Tumkur Smart City Corporation is a "Governmental Authority" as per the definition of Notification No. 12/2017-CT dated 28.06.2017? - HELD THAT:- In view of the fact that M/s. Tumkur Smart City Limited is neither the service provider, nor the service receiver in the instant case, and that the same is only a special purpose vehicle to facilitate the Parties (the applicant, and M/s. Tumakuru City Corporation) for seamless execution of the project - The question is not covered under Section 97(2) of the CGST/TNGST Act, 2017, in respect of which an applicant can seek advance ruling and hence this authority refrains from giving any ruling in this regard.
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