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Showing 401 to 420 of 1281 Records
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2022 (10) TMI 882
Maintainability of appeal - appropriate forum - section 35L of the Excise Act - Classification of services - CHA service or not - revenue earned under the head Break Bulk Fee - revenue generated as airline/airline incentive - Business Auxiliary Service or not - penalty u/s 78 of the Finance Act, 1994 - HELD THAT:- Reliance placed upon the respondent’s own case DHL LEMUIR LOGISTICS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE [2009 (3) TMI 158 - CESTAT, BANGALORE], wherein it had held that the Break Bulk Fee would not be includable in the computation of service tax towards CHA Services.
Revenue earned as freight rebate - HELD THAT:- The Tribunal further held that the service tax under the head Business Auxiliary Service could not be charged on the revenue earned as freight rebate inasmuch as the freight rebate was the revenue stream generated out of trading of the space in the airlines incentives, and that unless the airline was booked specifically for a client, the components of Business Auxiliary Service did not come into play. It also held that the appellant (respondent herein) was booking the space for its own trading activities, and therefore, in those circumstances, held that demand of service tax under Business Auxiliary Service could not be sustained.
Income under the head airlines commission and airline incentives - HELD THAT:- The Tribunal held that the same could not be considered as supply of Business Auxiliary Services, and therefore, set aside the demand in that regard.
In view of the specific provisions of section 35L of the Excise Act, 1944, determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment would be a subject matter of appeal before the Hon’ble Supreme Court - the appeal is disposed of as not maintainable before this Court.
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2022 (10) TMI 881
Recovery of past dues of service tax - Classification of services - Business Auxiliary Services or not - supply of bed rolls to passengers travelling in A/c III Tiers and in other higher classes and charges thereof collected by appellant from railways - Customer Care Service provided to the railways or not - HELD THAT:- The reliance placed on Section 99 of the Finance Act, 2013 by the appellant in this appeal, at this stage, is of no relevance as it applies only to taxable service provided by the Indian Railways. The service provided by the appellant to the Railways cannot be construed as the service provided by the Railways. What is provided by the appellant is the service of supply of bed rolls alone for the passengers travelling in AC compartments. Therefore, the appellant cannot claim any exemption in terms of the aforesaid provisions of the Finance Act, 2013.
Once the language in taxing statute is clear, there is no scope in interpreting the same as the tax provisions has to be read as it is and nothing is to be intended.
Considering the fact that the appellant is in arrears of tax right from 2003 and has not paid the amount till date, the official respondents are directed to recover the amount by ensuring that the appellant's business is not stalled, by giving time for repaying the amount together with interest and penalty - Petition closed.
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2022 (10) TMI 880
Claim of interest on Refund - Demand of service tax was set aside in the appellate proceedings - Calculation of interest for the period from the date the amounts were actually paid to the Government account, is correct or not - HELD THAT:- The Commissioner (Appeals) relying on the notification issued exempting payment of service tax allowed the appeal. It is on 21.11.2013 that the declaration is given that the appellant is not entitled to pay any service tax. Hence, any interest to be worked out on the refund has to be only from that day onwards. The appellant cannot contend that when a refund application is allowed, the interest has to be worked out from the date on which the service tax was actually paid into the Government. In fact Section 11BB and Section 11B of Central Excise Act 1944 deals with refund. It specifically states that the claim of interest on refund liability of the revenue to pay interest commences from the date of expiry of the 3 months from the date of receipt application for refund under Section 11B(1) of the Act and not on the expiry of the period from the date on which the order of refund is made. The Tribunal by the impugned order has held that the liability to pay interest on the amount of refund starts from the date on which the declaration was made that the appellant is not liable to pay service tax and declared that the appellant is entitled for interest from the date of order in original dated 21.11.2013 onwards.
The appellant is entitled for interest on the refund made only from the date on which the original order was passed declaring that the appellant is not liable to pay service tax - Appeal disposed off.
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2022 (10) TMI 879
Levy of service tax on Commission - Business Auxiliary Service - appellant have shown the income and booked in their profit and loss account as commission - exemption as per N/N. 13/2003-ST dated 20.06.2003 - HELD THAT:- The appellant have provided the service of Software Consultancy Service. As regard the mentioning in the profit and loss account as commission it clearly appears that there is a mistake occurred in mentioning the expenditure in the books of accounts. Therefore, the service provided by the appellant is of Software Consultancy Charges, accordingly, the demand under Commissioner in the head of Business Auxiliary Service is not sustainable - it is found that the service tax in the Commission Agent Service was clearly exempted unconditionally under Notification No.13/2003- ST dated 20.06.2003 up to the period of 08.07.2004. The entire demand for the period 2004-2005 is on the invoices issued on 15.04.2004 and 15.05.2004, therefore, these transactions are clearly under the exemption.
Demand of Rs.73440/- for the period 2006-2007 - HELD THAT:- Even in the books of account, the appellant have booked the expenditure under the head of Software Consultancy Service, therefore, the demand treating the receipt as the commission under Business Auxiliary Service would not sustain.
Demand of Rs.2363/- - Penalty - HELD THAT:- The appellant have not contested with the same as the same was related to Finance Consultancy Service and the same was discharged by the appellant. They are only contesting the penalty. Considering the meager amount and in the facts and circumstances of the present case, it is found that appellant have made a fit case for waiver of the penalty corresponding to Rs.2363/- demand, accordingly, the penalty is also not sustained.
Appeal disposed off.
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2022 (10) TMI 878
Refund of CENVAT Credit - Appellant and the service recipient are establishments of a distinct person or not - refund denied on the ground that the services rendered by the Appellant do not meet the criteria under Clause (f) of Rule 6A(1) of the STR inasmuch as it is an overseas branch office of Zaloni Inc. and are merely establishments of distinct persons in accordance with Explanation 3(b) of Section 65B(44) of the Finance Act, 1994 - HELD THAT:- The issue involved in the case at hand is no more res integra and has already been decided by the Hon’ble Gujarat High Court in the case of LINDE ENGINEERING INDIA PVT. LTD. VERSUS UNION OF INDIA [2020 (8) TMI 181 - GUJARAT HIGH COURT] where it was held that the respondents would not have any jurisdiction to invoke the provisions of the Act, 1994 read with Rules, 1994 to bring the services rendered by the petitioner No.1 to its parent Company within the purview of levy of service tax under the provisions of the Act, 1994.
The Hon’ble Supreme Court in the case of VODAFONE INTERNATIONAL HOLDINGS BV. VERSUS UNION OF INDIA & ANR. [2012 (1) TMI 52 - SUPREME COURT] has held that a subsidiary and its parent company located in different taxable territories are totally distinct taxpayer (s) or different entities.
The Appellant received the charges for their services in convertible foreign exchange. Therefore by respectfully following the ratio as laid by the Hon’ble Supreme Court and the judgement of Hon’ble Gujarat High Court and considering the fact that the Appellant and the service recipient are two distinct persons, the service provided by the Appellant to Zaloni Inc., USA clearly falls under the category of export of service - Appeal allowed - decided in favor of appellant.
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2022 (10) TMI 877
Levy of penalty u/s 77 and 78 of FA - Business Auxiliary Service - amount has been received by the appellant as commission from Amway and Britt - amount of tax already paid by the assessee - HELD THAT:- The proceedings should have been concluded before issuance of the show cause notice.
The penalties imposed are set aside - Service Tax as confirmed in the Adjudication Order need not be confirmed - appeal allowed.
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2022 (10) TMI 876
Clandestine Removal - Availment of fraudulent Cenvat Credit - non-receipt of inputs - evasion of Central Excise Duty - penalty u/r 26 of Central Excise Rules, 2002 - HELD THAT:- As regard the demand of fraudulent Cenvat Credit of Rs. 18 Crores and evasion of Excise Duty for Rs. 94,99,291/- the same stand confirmed as the impugned order is in operation.
The appellant being a Director of the Company involved in the entire Modus Operandi of fraudulent availment of credit and evasion of Excise Duty on the clandestine removal of finished goods. Without the knowledge of the director it could not have been possible to make such a huge evasion of duty. Therefore, the involvement of the director is clearly established.
It is clear that the appellant was directly involved in evasion of huge amount of excise duty and fraudulent availment of Cenvat Credit. Therefore, there are no infirmity in the finding given by the Adjudicating Authority - the penalty imposed upon the appellant is upheld - appeal dismissed.
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2022 (10) TMI 875
CENVAT Credit - input service distribution - whether issuance of Input Service Distributor (ISD) invoice by M/s Parle Biscuits Pvt. Limited to its contract manufacturing unit (M/s M.B. Industries Pvt. Ltd.,) is legal and correct when the contract manufacturing is carried in terms of N/N. 36/2001-CE (NT)? - HELD THAT:- The issue herein is squarely covered in favour of the appellant by the Larger Bench ruling of this Tribunal in the case of M/S. KRISHNA FOOD PRODUCTS, M/S. MARIAMMA R. IYER, M/S. PARLE BISCUITS PVT LTD. VERSUS THE ADDITIONAL COMMISSIONER OF CGST & C. EX [2021 (5) TMI 906 - CESTAT NEW DELHI] where it was held if amended provisions of rule 2(m) and rule 7 of the CENVAT Rules, after the 01.04.2016, merely seek to rectify the lacuna in the unamended rules and, therefore, would have effect from the inception of the rules.
Appeal allowed - decided in favor of appellant.
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2022 (10) TMI 874
Clandestine manufacture and removal - Flavoured Tobacco - Gutkha under brand name Patidar - evasion of Central Excise Duty - reliability of statements on which reliance placed upon - not permitting cross-examination of the witnesses sought by the appellant - infraction of principles of natural justice - confiscation - penalty - HELD THAT:- A statement made and signed by a person before the Investigation Officer during the course of any inquiry or proceedings under the Act shall be relevant for the purposes of proving the truth of the facts which it contains in case other than those covered in clause (a), only when the person who made the statement is examined as witness in the case before the court (in the present case, Adjudicating Authority) and the court (Adjudicating Authority) forms an opinion that having regard to the circumstances of the case, the statement should be admitted in the evidence, in the interest of justice. The legislative scheme, therefore, is to ensure that the statement of any person which has been recorded during search and seizure operations would become relevant only when such person is examined by the adjudicating authority followed by the opinion of the adjudicating authority then the statement should be admitted.
Even mere recording of statement is not enough but it has to be with full conscious application of mind by the adjudicating authority that the statement is required to be admitted in the interest of justice. Indeed, without examination of the person as required under Section 9D and opinion formed as mandated under the law, the statement recorded by the Investigation Officer would not constitute the relevant and admissible evidence/material at all and has to be ignored - there are no hesitation to view that in the present matter Ld. Pr. Commissioner committed illegality in placing reliance upon the statements of persons which was recorded during investigation when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion that it requires to be admitted in the interest of justice.
It is well settled law that clandestine removals cannot be arrived at based upon the confessional statement of persons only. The statements itself are not sufficient for holding so. There is catena of judgments laying down that the inculpatory statements alone cannot be made the basis for arriving at a finding of clandestine removal - Mere doubts, howsoever strong cannot take the place of evidence required to be produced by the Revenue. The onus to establish such clandestine activities, resulting in confirmation of demand is placed heavily on the Revenue and is required to be discharged by production of sufficient evidences.
In the instant case, the entire case of the Revenue is based on the Kaccha Chits seized from the residential premises of Shri Kirti Finava and Shri Anil Metaliya. There is considerable force in the contention of the Appellant that the Kacha Chits relied upon by the Revenue cannot be a basis to uphold the serious charge of clandestine clearance. It is settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing concrete and cogent evidence. In the absence of corroborative evidence, the issue of fact i.e. in the present case “the charge of clandestine clearance” cannot be levelled against the assessee - It has been consistently held that no demand of clandestine manufacture and clearance can be confirmed purely on assumptions and presumptions and the same is required to be proved by the Revenue by direct, affirmative and incontrovertible evidence.
There is no justification for confiscation of the seized goods from the premises of M/s Radheshyam Transport Co, Surat. The Revenue has not produced any evidence to reveal that the said goods found from the transport’s premises were cleared from the appellant’s factory without payment of duty. All the goods available in the market are deemed to be duty paid, unless proved otherwise. In the absence of any evidence to the contrary, the confiscation of the goods is set aside - the demands of duty, corresponding interest and penalty, the confiscation of seized goods and seized cash are not sustainable, consequently, the imposition of penalties on all the co-appellants are also not sustainable.
Appeal allowed - decided in favor of appellant.
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2022 (10) TMI 873
Drug Trafficking - Species of the contraband recovered - poppy husk - poppy straw - necessity for the prosecution to bring in materials to show as to what was the species of the contraband recovered - NDPS Act - whether it is sufficient for the prosecution to establish that the raw material contains morphine and meconic acid to bring it under sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act or is it necessary for the prosecution to further establish that, though the seized material contains morphine and meconic acid, the genus of the seized material is papaver somniferum L or any other species of papaver from which opium or any phenanthrene alkaloid can be extracted and which is notified in the Official Gazette by the Central Government to be opium poppy for the purposes of the 1985 Act?
HELD THAT:- Since many deficiencies were found in the earlier enactments and the provisions therein were not found sufficient to deal with the problems of drug trafficking, it was found necessary to enact a new law since after passing of the earlier three Acts, there were tremendous developments on an international platform and a vast body of international law in the field of narcotics control had evolved through various international treaties and protocols. The Government of India had been a party to these treaties and conventions which entailed several obligations which were not covered or were only partly covered under the old Acts.
It was well recognized under the earlier enactments, International Conventions and scientific studies that ‘papaver somniferum L’ plant was the main source for the production of ‘opium’. The 1878 Act so also the 1930 Act had recognized this position. In the International Conventions also, this was recognized. Though for the first time in the 1953 Protocol, in addition to “papaver somniferum L’, any other species of ‘papaver’, which may be used for the production of ‘opium’ was included in the definition of ‘opium’, the subsequent conventions of 1961 and 1988 again defined ‘opium poppy’ as a plant of ‘papaver somniferum L’ - If the construction as adopted in the impugned judgment is to be accepted, then, even if it is found that the Chemical Examiner’s report establishes that the contraband article contains ‘morphine’ and ‘meconic acid’, a person cannot be convicted unless it is further established that the contraband material has a genesis in ‘papaver somniferum L’.
If the view as taken by the High Court is to be accepted, a person who has been found contravening the provisions of the 1985 Act and dealing with a contraband material which has been found in the Chemical Examiner’s report to contain ‘morphine’ and ‘meconic acid’, would escape the stringent provisions of the 1985 Act. The said could never have been the intention of the legislature. If the view as taken by the High Court is to be accepted, the same would frustrate the object of the Act and defeat its very purpose.
The High Court was not justified in holding that, even after the Chemical Examiner’s report establishes that the contraband contains ‘meconic acid’ and ‘morphine’, unless it was established that the same was derived from the species of ‘papaver somniferum L’, conviction under Section 15 of the 1985 Act could not be sustained - once it is established that the seized material contains ‘meconic acid’ and ‘morphine’, it will be sufficient to establish that it is derived from the plant ‘papaver somniferum L’ as defined in sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act.
Once a Chemical Examiner establishes that the seized ‘poppy straw’ indicates a positive test for the contents of ‘morphine’ and ‘meconic acid’, it is sufficient to establish that it is covered by sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act and no further test would be necessary for establishing that the seized material is a part of ‘papaver somniferum L’. In other words, once it is established that the seized ‘poppy straw’ tests positive for the contents of ‘morphine’ and ‘meconic acid’, no other test would be necessary for bringing home the guilt of the accused under the provisions of Section 15 of the 1985 Act.
Appeal allowed.
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2022 (10) TMI 872
Arbitration - Jurisdiction and powers under the Commercial Courts Act, 2015 - Validity of Notification dated 13.11.2020, issued by the State of Odisha through its Principal Secretary, Law Department - whether in exercise of powers under Section 3 of the Commercial Courts Act, 2015, the State Government can confer jurisdiction to hear applications under Sections 9, 14 and 34 of the Arbitration and Conciliation Act, 1996, upon Commercial Courts which are subordinate to the rank of the Principal Civil Judge in the District, contrary to the provisions of Section 2(1)(e) of the Arbitration Act?
HELD THAT:- In the year 2003, the Law Commission of India suo moto took up the issue of constitution of Commercial Divisions in the High Courts with a view to facilitate fast disposal of high value commercial disputes. In its 188th Report, the Law Commission, after carrying out indepth study of Commercial Courts in United Kingdom, USA, Singapore etc. recommended setting up of Commercial Division in each of the High Courts to expedite commercial cases of high pecuniary value - the Objects and Reasons of Commercial Courts Act, 2015 is to provide for speedy disposal of the commercial disputes which includes the arbitration proceedings. To achieve the said Objects, the legislature in its wisdom has specifically conferred the jurisdiction in respect of arbitration matters as per Section 10 of the Act, 2015. At this stage, it is required to be noted that the Act, 2015 is the Act later in time and therefore when the Act, 2015 has been enacted, more particularly Sections 3 & 10, there was already a provision contained in Section 2(1)(e) of the Act, 1996. As per settled position of law, it is to be presumed that while enacting the subsequent law, the legislature is conscious of the provisions of the Act prior in time and therefore the later Act shall prevail.
Considering the provisions of the Act, 2015 and the Objects and Reasons for which the Act, 2015 has been enacted and the Commercial Courts, Commercial Division and Commercial Appellate Division in the High Courts are established for speedy disposal of the commercial disputes including the arbitration disputes, Sections 3 & 10 of the Act, 2015 shall prevail and all applications or appeals arising out of arbitration under the provisions of Act, 1996, other than international commercial arbitration, shall be filed in and heard and disposed of by the Commercial Courts, exercising the territorial jurisdiction over such arbitration where such commercial courts have been constituted.
The notification issued by the State of Odisha issued in consultation with the High Court of Orissa to confer jurisdiction upon the court of learned Civil Judge (Senior Division) designated as Commercial Court to decide the applications or appeals arising out of arbitration under the provisions of Act, 1996 cannot be said to be illegal and bad in law - appeal dismissed.
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2022 (10) TMI 871
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- Whereas the payments made on the earlier dates except the payment reflected at Serial no.1 are adjusted against the invoice no. RV1927813879, the part-payments dated 03.11.2021 and 08.11.2021 made by the respondents as reflected at serial. no. 8 and 9 are adjusted towards the interest outstanding of the invoice bearing No. RV2027804572. Hence, there are no consistency or pattern in the treatment accorded to the part-payments, while adjusting the same towards the outstanding dues. Had the amounts mentioned at Serial No. 8 and 9 been adjusted towards the invoice RV1927813879, the principal amount would be less than the minimum stipulated threshold of Rs 1 (one) Crore.
The invoice claimed in Part IV of the present application is only RV1927813879 and the other invoices as referred in table (produced) are neither produced nor are the subject matter of the present petition - further investigation and scrutiny of facts is required that as to why the subsequent payments made on 08.11 2021 are adjusted against the invoice no. RV2027804572, whereas the previous payments made on 24.03.2021 and 25.03.2021 are adjusted towards the Invoice under reference i.e., RV1927813879.
The Applicant has failed to establish beyond doubt the quantum of the unpaid operational debt above the minimum threshold of Rs. 1 (one) Crore subsisting - Application dismissed.
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2022 (10) TMI 870
Seeking release of the applicant on bail - wrongful availment of input tax credit through fictitious documents and transactions - Section 132 (1) (l) (II) of GST Act - HELD THAT:- The principal offence alleged against the applicant is of evasion of amounting to Rupees less than 500 lacs, which carries a maximum punishment of imprisonment for three years and which offence is bailable and also keeping in view the fact that the applicant has no criminal history, the applicant is entitled to be released on bail.
Let the applicant Vishnu Pratap be released on bail in under Sections 420, 424, 467, 468, 120-B IPC and Sections 122 and 132 of the U.P. and Central Goods and Service Tax Act, 2017, Police Station Kwarsi, District Aligarh on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the conditions imposed - application allowed.
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2022 (10) TMI 869
Maintainability of petition - availability of alternative remedy - petitioner had an opportunity to comply with the provisions of the regulations/statute and petitioner failed to avail of remedy under Section 30 of the CGST Act - revocation of cancellation of the registration - HELD THAT:- The petition is disposed off by passing the following order:
(a) In case the application is filed by petitioner within 15 days from today under Section 30 of the CGST Act before the Authority, the Authority shall construe the same within limitation and take decision upon the application on merits, expeditiously.
(b) Petitioner may therefore, file an application either by E-mail or hand delivery within 15 days from today under Section 30 of the CGST Act before the Authority/proper officer who shall construe the same as within time and dispose the application on merits expeditiously and in any case within four weeks of receiving the application.
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2022 (10) TMI 868
Principles of natural justice - no opportunity of hearing has been provided to the petitioner before passing the order impugned - jurisdiction of respondent no. 2 namely- Commercial Tax Officer, Kaushambi to pass the order impugned - Section 74 of the SGST Act - Availability of alternative remedy - HELD THAT:- The date fixed in the said notice though was the holiday but opportunity of hearing was granted to the petitioner on the next working day. In view of this admission, contention of learned counsel for the petitioner is that the order dated 23.6.2020 was passed without furnishing opportunity of hearing, cannot be entertained.
Availability of alternative remedy - HELD THAT:- As regards, the merits of the objections taken by the petitioner, remedy before the petitioner is to file an appeal under Section 107 of the U.P. State Goods and Service Tax Act, 2017.
Jurisdiction of respondent no. 2 namely, Commerical Tax Officer, Kaushambi - HELD THAT:- A Circular dated 19.11.2018 addressed to Officers of the Trades Tax Department, U.P. issued by Commercial Tax Officer, U.P. Lucknow has been appended - A perusal thereof indicates that the Commercial Tax Officer has been authorized to deal with the cases of trading units whose taxable trade turnover is in between 15 lacs to 25 lacs - It is demonstrated by the learned counsel for the respondents from page '32' to the paperbook that in GSTR-3B of December, the petitioner had disclosed his taxable turnover of Rs. 2,20,240/-. Moreover, it is not in dispute that the taxable trade turnover of the petitioner is not more then Rs. 25 lacs. The plea of lack of jurisdiction, therefore, is found devoid of merits.
The writ petition is dismissed accordingly.
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2022 (10) TMI 867
Cancellation of GST registration of the petitioner - petitioner had not filed all the GST returns - HELD THAT:- It would meet the ends of justice if the matter is remanded back to respondent No.1 for taking a fresh decision in accordance with law.
Matter remanded back to the file of respondent No.1 to consider the case of the petitioner against cancellation of GST registration afresh and thereafter pass appropriate order in accordance with law - petition allowed by way of remand.
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2022 (10) TMI 866
Classification of supply - supply of goods or supply of services - activity of commercial vehicles body-building on a job-work basis, on the chassis supplied by the customer - applicable rate of GST - HELD THAT:- The applicant is fabricating the body on the chassis belonging to the customer. The ownership of the chassis remains with the customer and at no stage of the process of fabrication of the body, the title in the chassis is transferred to the applicant. Therefore, the applicant is fabricating the body on the chassis belonging to another person and hence the activity is squarely covered under Para 3 of Schedule II of the CGST Act, 2017 as a treatment or process which is applied to another person's goods and accordingly is a supply of services.
Classification of the activity and the rate of GST applicable - HELD THAT:- As per the Scheme of Classification of Services notified as Annexure to Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 the Heading [Service Accounting Code] - 9988 pertains to manufacturing services on physical inputs (goods) owned by others. The Explanatory Notes to the Scheme of Classification of Services states that the services included in the Heading 9988 -Manufacturing services on physical inputs owned by others - are services performed on physical inputs owned by units other than the units providing the service. As such, they are characterized as outsourced portions of a manufacturing process or a complete outsourced manufacturing process - the value of the services in this Heading is based on the service fee paid, not the value of the goods manufactured. SAC - 99888 under Heading 9988 pertains to Transport equipment manufacturing services and Sub - Heading 998881 pertains to Motor vehicle and trailer manufacturing services. Therefore, the activity of the applicant is appropriately classifiable under Service Accounting Code 998881.
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2022 (10) TMI 865
Exemption from GST - education services to student's through its own online platform - transaction between applicant and individual student on a one to one basis - providing education up to Higher Secondary School - exemption under SI.No.66(a) of Notification No.12/2017 - Central Tax (Rate).
HELD THAT:- The first kind of educational institution defined in clause (y) of Para 2 of Notification. No. 12/2017 CT (Rate) dated 28.06.2017 is an institution providing services by way of pre-school education and education up to higher secondary school or equivalent. "Education" is not defined in the CGST Act but as per Apex Court decision in SOLE TRUSTEE, LOKA SHIKSHANA TRUST VERSUS COMMISSIONER OF INCOME-TAX, MYSORE [1975 (8) TMI 1 - SUPREME COURT], education is process of training and developing knowledge, skill and character of students by normal schooling.
The entry exempts educational institutions from pre-school to higher secondary school or an educational institution which is equivalent to a 'school'. Admittedly, the applicant is not a formal school, but an institution providing special training / coaching to students who are enrolled in formal schools for education up to higher secondary or equivalent. Even though the activity; training and coaching undertaken by the applicant can be claimed to be education services in layman's understanding, those activities do not qualify to be classified under any of the Groups; 99921 - Pre-primary education services; 99922 - Primary education services or 99923 - Secondary education services as core educational services provided by schools up to higher secondary or equivalent - institutions providing services by way of education as a part of curriculum for obtaining a qualification recognized by any law for the time being in force and those engaged in providing education as a part of an approved vocational education course are covered by the definition of "educational institution" in sub-clauses (ii) and (iii) respectively of clause (y) of Para 2 of the said notification. The training provided by the applicant neither leads to grant of any qualification recognised by any law for the time being in force nor is part of an approved vocational education course. Therefore the applicant is not covered under the scope of definition of "educational institution" in Para 2 (y) of Notification No. 12/2017 CT (Rate) dated 28.06.2017.
Accordingly, the applicant is not eligible for the exemption as per the entry at SI. No. 66 of the said notification.
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2022 (10) TMI 864
Territorial limit - What is the geographical limit of the city of Hyderabad, Telangana as per Notification No.3 of 2019 – GST Rate? - HELD THAT:- It is to inform that under Section 97 of the CGST Act, 2017 the questions on which the advance ruling is sought shall be in respect of (7) specified items only - The applicant’s question does not fall under any of the 7 category.
Application rejected.
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2022 (10) TMI 863
Rate of GST - Affordable Residential Apartment in a Residential Real Estate Project - whether the rate of 0.75% under Item No. (i) of Entry No. 3 of Notification No. 03/2019 Central Tax (Rate) can be availed when the project consists of both “Affordable Residential Apartments” as well as apartments other than Affordable Residential Apartments?
HELD THAT:- A new tax structure for the real estate sector was introduced with effect from 01.04.2019 onwards by amendment of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 by Notification No. 03/2019 - Central Tax (Rate) dated 29.03.2019. Admittedly, the services of construction of apartments are being rendered by the applicant after 01.04.2019 and hence the rate as notified under the new tax structure is applicable in respect of the construction services rendered by the applicant.
The project to be undertaken by the applicant falls within the definition of a real estate project and the applicant falls within the definition of “promoter”. Further, on a conjoint reading of the provisions of law, the facts as stated in the application and the terms and conditions in the draft agreement produced as Annexure 1 it is seen that the services of construction of apartments provided by the applicant in the residential real estate project squarely fall within the description of services specified in Item (i) and (ia) of SI. No. 3 of the Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 as amended by Notification No. 03/2019 Central Tax (Rate) dated 29.03.2019 and accordingly the tax rates as prescribed in the said entries shall apply to the said services supplied by the applicant. Accordingly, the applicant is liable to pay GST at the rate of 1.5% in respect of the services of construction of affordable residential apartments as per entry at Item (i) and the rate of 7.5% in respect of the services of construction of residential apartments other than affordable residential apartments in the project as per entry at Item No. (ia) of SI No. 3 of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 subject to the conditions prescribed under the respective entries.
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