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TMI Blog2020 (12) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... iled an application for Advance Ruling under Section 97 of CGST Act, 2017 & KGST Act, 2017 read with Rule 104 of CGST Rules 2017 & KGST Rules 2017, in form GST ARA-01, discharging the fee of Rs. 5,000/- each under the CGST Act and the KGST Act. 2. The applicant is a Film distributor, registered under GST, for provision of Leasing and Licensing for the right to broadcast service and shows original films which include sound recordings. 3. The Jurisdictional authority of the applicant issued a GST DRC 01A dated 10.09.2020, in file C.No. IV/06/191/2019 BW AE-V, demanding differential tax of Rs. 4,82,30,200/- owing to suppression of taxable value and wrong classification resorted to by the applicant for the period May 2018 to March 2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Section 98(2) of the CGST Act 2017. 5. Sri. V R Balasubramani, Advocate & Authorized Representative of the applicant (AR), in response to personal hearing intimation letter dated 7-10-2020, vide letter dated 9-10-2020 submitted that the officer who has issued GST-DRC-01A dated 10-09-2020 is also Member(Central) of this authority; in terms of the maxim "Nemo judex in causa sua" the bench of this authority need to be reconstituted and requested to postpone the personal hearing. PERSONAL HEARING: / PROCEEDINGS HELD ON 15.10.2020 & 15.12.2020 6. Sri. V R Balasubramani, Advocate & Authorized Representative of the applicant (AR) appeared for personal hearing proceedings held on 15.10.2020 and appraised the facts furnished in the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhesitating / unwavering is to be considered as 'Decided'. In this case the DRC-01A is not followed by the Show Cause Notice enclosed by all relevant documents and hence it can't be claimed that the issue is pending and therefore when the proceedings itself has not been started, the question of decision is not relevant. Further DRC-01A is only an intimation rather than a Show Cause Notice and therefore intimation letter do not have the effect of commencing a proceeding. 9. The Asst. Commissioner(AE), Bangalore West Commissionerate, vide letter dated 27.10.2020, submitted that the applicant herein stated that they classify their services under SAC 9973, where as the correct classification is 9966 and the applicable rate is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t application and the said admissibility is governed by the first proviso to Section 98 (2) of the CGST Act 2017, which reads as under: "The Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of applicant under any provisions of this Act". Thus the conditions to be considered before admission of application, on the basis of above proviso are as under: i. Whether the question raised is pending or decided in any proceedings ii. Whether the question raised is pending or decided in the case of applicant iii. Whether the question raised is pending or decided under any provisions of this Act. 11.4 We examine the records and obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (1) of Section 73 or sub-section (1) of Section 74, as the case may be, communicate the details of any tax, interest and penalty as ascertained by the said officer, in Part A of FORM GST DRC-01A. Further the said form is prescribed one and contains a reference of the case proceedings, which clearly indicates that proceedings have been initiated and are not concluded. Thus it proves that the case proceedings are pending. 11.6 The issue raised in the instant application and the issue pending under the proceedings are one and same i.e. classification of the services provided by the applicant. Thus first proviso to Section 98(2) of the CGST Act 2017 is squarely applicable to the instant case, as all the conditions therein are fulfill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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