TMI Blog2020 (3) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... day in filing this appeal. Since the appeal cannot be allowed to be presented on account of time limitation, the question of discussing the merits of the issue in appeal does not arise - Appeal is dismissed on the ground of limitation. - KAR/AAAR-15/2019-20 - - - Dated:- 3-3-2020 - SHRI D.P. NAGENDRA KUMAR AND SHRI M.S. SRIKAR, MEMBER Represented by: Shri M. Sidramappa, Deputy Conservator of Forest, Urban Division Shri. Eswarappa G.B., Consultant PROCEEDINGS (Under Section 101 of the CGST Act, 2017 and the KGST Act, 2017) 1. At the outset we would like to make it clear that the provisions of CGST, Act 2017 and SGST, Act 2017 are in pari materia and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the KGST Act. 2. The present appeal has been filed under section 100 of the Central Goods and Service Tax Act 2017 and Karnataka Goods and Service Tax Act 2017 (herein after referred to as CGST Act, 2017 and SGST Act, 2017) by Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment, where the buyer is registered or is based outside the State of Karnataka, but uses the goods within the State of Karnataka, what should be charged under the CGST Act 2017, (A) SGST and CGST, or (B) IGST?. 5. The Advance Ruling Authority passed Advance Ruling order No. KAR ADRG 20/2019 dated 26.08.2019 = 2019 (9) TMI 824 - AUTHORITY FOR ADVANCE RULING, KARNATAKA , wherein they ruled as follows: - 1. The operation of logging as described in Issue 1 of the application would attract tax under the Goods and Services Tax Acts and it is independent of the trees, whether planted by the Forest Department or which grew out of natural regeneration. 2. The transaction described in the application in Issue No. 2, is an intra-State supply and attracts CGST and SGST and is independent of where the goods are taken by the recipient after the supply is completed. 6. The Appellant is aggrieved by the ruling given in respect of logging activities and has filed this appeal on the following grounds. 6.1 Logging operations amounts to forestry and the same attracts nil rate of tax against entry Sl.no. 24 of Notification No. 11/2017-Central Tax (Rate) dated 28.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .- man made fibres means staple fibres and filaments of organic polymers produced by manufacturing processes either,- (a) by polymerisation of organic monomers to produce polymers such as polyamides, polyesters, polyolefins or polyurethanes, or by chemical modification of polymers produced by this process [for example, poly (vinyl alcohol) prepared by the hydrolysis of poly (vinyl acetate)]; or (b) by dissolution or chemical treatment of natural organic polymers (for example, cellulose) to produce polymers such as cuprammonium rayon (cupro) or viscose rayon, or by chemical modification of natural organic polymers (for example, cellulose, casein and other proteins; or alginic acid), to produce polymers such as cellulose acetate or alginates. 2.5 - (ii) Manufacturing services on physical inputs (goods) owned by others, other than (i) above. 9 - 6.3. The impugned Ruling of the Advance Ruling Authority holds that logging operations is covered under entry 26(iv) and therefore, liable to tax at 9% each as CGST and SGST. The Appellant makes it clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services to agriculture, forestry, fishing, animal husbandry means carrying out intermediary production process as job work in relation to cultivation of plants and rearing of life forms of animals, except rearing horses, for food, fibre, fuel, raw material or other similar products or agricultural products . Thus, the activity of logging of trees into timber, poles, firewood, pulp wood etc., is support services relating to forestry as is obvious from the heading caption of entry no. 24 to Notification No. 11/2017-CentraI Tax (Rate) dated 28.06.2017. Thus, there is no ambiguity as to logging operations being covered by entry No. 24 to the said Notification No. 11/2017-Centra1 Tax (Rate) dated 28.06.2017 attracting nil rate of tax. PERSONAL HEARING: - 7. The appellant was called for a personal hearing on 31.01.2020. They had sought for an adjournment and the same was held on 24 th February 2020. The appellants were represented by Shri. M Sidramappa, Deputy Conservator of Forests, Urban Division Shri-Eswarappa G.B, Consultant, who reiterated that submissions made in the grounds of appeal They also submitted that the main activity is to manage the forest area which invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with a distinct name, character and use. Therefore, the findings of the lower Authority to this extent are not correct. 7.1. During the personal hearing, it was pointed out by the Members that the appeal was filed beyond the period of 60 days from the date of receipt of the advance ruling. In this connection, the appellant confirmed that they received the ruling on 05.10.2019 as the same was diarised in the appellant s office on 05.10.2019. It is consistently held by various judicial decisions that the day on which cause of action arises is to be excluded for computation of time limitation. In the instant case cause of action arose on 05.10.2019 and the same is to be excluded for computation of time. It means, time begins, in the instant case from 06.10.2019 and30 days normal time for preferring appeal ends on 04.11.2019. Further, grace period available for discretionary exercise of power by the Appellate Authority begins on 05.11.2019 and 30 days grace period in the instant case of the Appellant ends on 04.12.2019. The Appellant filed the appeal on 04.12.2019. Therefore, it is prayed that the Appellate authority may exercise its discretionary power, in the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient cause from presenting the appeal within the initial period of 30 days. In the Form ARA-02, the appellant has stated that the date of communication of the advance ruling order is 05.10.2019. Clearly the appeal has not been filed within the prescribed time period of thirty days from the date of communication of the order. The question arises whether the appeal filed on Dec 2019 is within the condonable period of another 30 days. 10. For this we need to establish when the Advance Ruling order No 20/2019 dated 26.08.2019 = 2019 (9) TMI 824 - AUTHORITY FOR ADVANCE RULING, KARNATAKA was communicated to the appellant. Section 169 of the CGST Act prescribes the modes of service of orders and registered post with acknowledgement due is one such mode of service. It is seen from the records available in the office of the Advance Ruling order No 20/2019 dated 26.08.2019 = 2019 (9) TMI 824 - AUTHORITY FOR ADVANCE RULING, KARNATAKA was communicated to the Deputy Conservator of Forests, Bangalore Urban by registered post with acknowledgement due and the same was received at Office of the Deputy Conservator of Forests, Bangalore Urban Division on 04-10-2019 . A scanned cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to allow the appeal to be presented within a further period not exceeding thirty days provided sufficient cause is shown. In this case, the grace period which was available to the appellant for filing the appeal commenced on 04.11.2019 and ended on 03.12.2019. The appeal in this case, has been filed on 04.12.2019 which is one day after the expiry of the grace period and beyond the condonable powers of the Appellate Authority. 13. The question whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the condonable period does not require much debate and has been answered in the negative by the Supreme Court in the case of Singh Enterprises vs CCE reported in (2008) 3 SCC 70 = 2007 (12) TMI 11 - SUPREME COURT . The Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail, and to that extent the provisions of the Limitation Act shall stand excluded Further, in the case of Commissioner of Customs and Central Excise vs Hongo India (P) Ltd. (2009) 5 SCC 791 = 2009 (3) TMI 31 - SUPREME COURT , the Hon ble Supreme Court considered the question whether Section 5 of the Limitation Act can be invoked for condonation of delay in filing an appeal or reference to the High Court and observed thus: As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
