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GST - Case Laws
Showing 13741 to 13760 of 13912 Records
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2018 (4) TMI 1143
Release of detained goods - Section 129 of the Central Goods and Services Tax Act - Held that: - identical matter has been disposed of by a Division Bench of this Court in The Commercial Tax Officer And The Intelligence Inspector Versus Madhu. M.B. [2017 (9) TMI 1044 - KERALA HIGH COURT], directing expeditious completion of the adjudication of the matter and permitting release of the goods detained pending adjudication, in terms of Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017 - the competent authority is directed to complete the adjudication provided for u/s 129 of the statutes - petition disposed off.
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2018 (4) TMI 1142
Detention of goods - grievance of the petitioner concerns the delay on the part of the first respondent in completing the adjudication as provided for under Section 129 of the statutes - Held that: - the petitioner has remitted the tax and penalty demanded in terms of the notice issued under Section 129 of the statutes - first respondent directed to complete the adjudication within one month from the date of receipt of a copy of this judgment - petition disposed off.
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2018 (4) TMI 1141
Seizure of goods - E-way bill not produced - Penalty - Held that: - it is clear that the E-Way Bill itself was downloaded on 07.01.2017 i.e. four days after the seizure has been made - the petitioner has equally efficacious remedy of filing an appeal against the penalty order under Section 107 of the U.P. GST Act, 2017 - petition dismissed.
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2018 (4) TMI 1140
Seizure order - Section 129(1) of U.P. GST Act - seizure on the ground that the size of the wood planks were unequal - Held that: - there is no other allegation. No penalty order has been passed against the petitioner as yet - subject to deposit of security equal to the value of the goods shown in the invoice, other than cash or bank guarantee, the petitioner's vehicle and goods along with documents, which have been seized may be released forthwith - petition disposed off.
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2018 (4) TMI 1139
Seizure of goods - Section 129(1) U.P. GST Act - E-Way bill not downloaded - Held that: - it has come on record that before seizure there was some problem in downloading the E-way bill. The penalty order has not yet been passed - Subject to deposit of bank guarantee, equal to the value of the tax on goods, the petitioner's vehicle and goods which have been seized may be released forthwith - petition disposed off.
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2018 (4) TMI 1077
Levy of GST - Valuation - construction services / superstructure - undivided and impartible share of land - Entry 5 of Schedule III of the CGST Act, 2017 - Whether GST will be applicable on the sale of undivided and impartible share of land represented by Agreement to sell the land? - Held that: - From a conjoint reading of Section 7 and Entry 5 of Schedule III of CGST Act, any activity/ transaction which is in the nature of ‘sale of land’ is not covered within the purview of GST. Consequently, no GST is payable on the transactions resulting in the sale of land.
Composite supply - Whether GST shall be applicable on sale of superstructure (which is under construction)? - N/N. 11/2017- Central Tax (Rate) dated 28.06.2017 - Held that: - the measure of tax should be the value of goods and services supplied by excluding the value of land. However, since land cannot be separately sold, a deemed value of land need to be ascertained on which GST would not be payable.
Under GST Notification No. 11/2017 - Central Tax (Rate) dated 28.06.2017 - S. No. 3 r/w Paragraph 2, the deemed value of land or undivided share of land has been fixed at one-third of the total amount charged. Hence, in GST, the machinery provisions to ascertain the value of land is available in the notification which has been issued under Sub-Section (5) of Section 15 of the CGST Act, 2017 regarding value of taxable supply - The said Notification has been issued under Section 15(5) of the CGST Act, 2017 by the Government on the recommendation of the GST Council and hence, no separate Rule was required to be issued.
Paragraph 2 of the Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017 is fully authorised by Section 15(5) of the CGST Act, 2017 to provide machinery provisions to ascertain the value of land for exclusion and to measures the value of supply of goods and services for levy of GST. The said machinery provisions cannot be equated with exemption Notification issued under Section 93(1) of the Finance Act, 1994 which were held to be insufficient by the Hon’ble High Court [2016 (6) TMI 192 - DELHI HIGH COURT].
Ruling:- the value of land, or the undivided share of land, as the case may be, would be deemed to be one-third of the total amount, which is excluded from the value for the purposes of payment of GST
Even if agreement between the applicant and the buyer is entered after part of the construction is already completed, whole of the consideration would be added for payment of GST.
The applicable rate of GST on the said two-third of total amount is 9% (CGST) and 9% SGST under S. No. 3(i) of Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017 and parallel SGST notification.
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2018 (4) TMI 1076
Seizure of detained goods - Absence of E-Way bill - contention of petitioner is that without considering the e-way bill-02 which has been furnished immediately within 20 minutes from the time of the detention of the vehicle/goods, the respondent no.3 has illegally passed the seizure order after a gap of four days - Held that: - Rule 138 of the Rules framed under the Central GST provides that till such time e-way bill system is developed and approved by the Council, the Government by notification may specify the documents which are to be carried with the consignment of goods - even if the seizure is treated to be under Section 129(1) of the Central GST, as there was no provision of e-way bill on the relevant date under the Central GST, therefore, the seizure appears to be illegal.
Since the petitioner is registered dealer, there is no error at the hands of the petitioner, and therefore, the order of seizure passed under Section 129(1) of the Act as well as the notice issued under Section 129(3) of the Act are hereby set aside.
Petition disposed off.
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2018 (4) TMI 1075
Extension of time period for filing of GST Tran-1 - despite making several efforts on the last date for filing of the application, the electronic system of the respondent no.2 did not respond - Held that: - the respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the application of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner - petition disposed off.
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2018 (4) TMI 1074
Seizure of goods with vehicle - absence of Transit Declaration Form - interstate movement of goods through UP - penalty - Held that: - It is clear that the goods have been detained, seized and penalty has been imposed merely because of TDF was absent and the proper officer was himself not satisfied as to the intention to evade tax being present in the facts of the case - There is nothing to dispute the claim made by the assessee that it was effecting the stock transfer of goods from Chennai to Dehradun and therefore, the goods were only passing through the State of U.P. - There is no allegation or intention on the part of the assessee to unload the goods within the State of U.P. - seizure and penalty not sustainable - petition allowed.
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2018 (4) TMI 1073
Seizure of goods with vehicle - consignment of goods was not accompanied by downloaded E-Way Bill - Held that: - the interception was at 7.30 P.M. while E-Way Bill downloaded and produced before the authority on the same date at 10.05 P.M - since now the E-Way Bill has been downloaded and produced before the authority, the goods and vehicle should be released upon the petitioner furnishing security other than cash and bank guarantee to the satisfaction of the authority concerned - petition disposed off.
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2018 (4) TMI 1072
Correction of registration - petitioner applied for registration under GST on 27.6.2017, but mistakenly provided the PAN number of one of the partner of the firm, instead of PAN number of the Firm - petitioner then again applied for registration on 14.8.2017 - registration could not be activated as two registration applications were filed - Held that: - until and unless the petitioner surrenders the subsequent registration dated 14.8.2017, the earlier cannot be corrected or activated - petition disposed off directing the petitioner to surrender the registration dated 14.8.2017 - petition disposed off.
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2018 (4) TMI 1009
Right to carry lottery business - Use of Kerala GST Act, 2017 and police power to interfere into the lottery business - practical difficulty in following of 56(20A)(d) of the Kerala State GST Rules - Production of unsold lotteries before the authority within 48 hours - Challenge to the GST Rules, 2017 on a premise that these rules are colourable exercise of delegated legislation to interfere with rightful conduct of lottery business in the State - Held that:- Rule 56(20A)(d) refers to satisfaction entered by the authority as to the violations of the Lotteries (Regulation) Act. This Court is of the view that the above Rule has to be struck down as the State has no power to constitute one more authority under the Kerala State GST Rules to enter satisfaction as to the violations of the lottery. The Indian Constitution do not recognise police power as such.
The police cannot act merely based on the information given by the Tax officials. The police power in relation to the violation of the provisions of Lotteries Regulation can be exercised only in accordance with the Lotteries Regulation.
The petitioners pointed out the practical difficulty in complying Rule 56(20A)(II) within 48 hours. Explanation as above, certainly, is meritorious. The Court cannot brush aside such an explanation. How far an action can be initiated for non compliance is a vexing question to be decided by this Court.
The petitioners should not be prevented from the sale of lottery for non compliance of Rules 56(19) and 56(20A) of the Kerala State GST Rules, in respect of which they have explained their practical difficulty in complying the same. In respect of the other Rules, the petitioners having expressed their willingness to comply the same in the writ petition itself, I need not advert to the consequence and non compliance of such Rules.
Rule 56(20A)(iii)(d) of the Kerala State GST Rules is struck down holding that the State has no legislative competence to formulate such Rule.
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2018 (4) TMI 1007
Seizure of goods - incomplete E-Way bill - Section 129(1) of Uttar Pradesh Goods and Service Tax Act, 2017 - Held that: - In the present case admittedly, all the above details were not filled up or disclosed in the E-Way Bill - the E-Way Bill was incomplete and improper. Any E-Way Bill which is not duly filled up cannot be construed to be a valid document and it would be treated as if the goods are not accompanied by appropriate / valid E-Way bill.
Apparently there is a convention of the provision of the Act which mandates that the E-Way bill should be accompany the goods in transit - There is no illegality in seizing goods for violation of provision of the Act.
Petition dismissed.
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2018 (4) TMI 1006
Transition of CENVAT credit to ITC under GST - condition contained in clause (iv) of subsection (3) of section 140 of the Central GST Act - With introduction of GST, the petitioners could avail their CENVAT credit of the stock of goods lying with the petitioners, on which, the purchases were made not earlier than one year - NOTICE issued.
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2018 (4) TMI 938
Zero rated supply or not - supply from the shop located in the Security Hold Area of the IGI International Airport - supply to an International outbound passengers holding international boarding pass – applicable rate of 28% or otherwise - Held that:- the goods can be said to be exported only when they cross the territorial waters of India and the goods cannot be called to be exported, merely on crossing the Customs Frontiers of India.
“export of goods” has been defined under Section 2(5) of the IGST Act, 2017 as taking goods out of India to a place outside India. The India is defined under Section 2(56) of the CGST Act as “India”.
Hence, when goods are exported by Air, the export will be completed only when goods crosses airspace limits of its territory or territorial waters of India.
Decision of Supreme Court in the case of Collector of Customs, Calcutta V/s Sun Industries [1988 (4) TMI 49 - SUPREME COURT OF INDIA] followed. – Though, this case was against the revenue allowing duty drawback to the exporter, but since the term “taking out to a place outside India” has been discussed by the apex court in this case, the same has been followed.
Further, the decision of the Supreme Court in the case of Hotel Ashoka (INDIAN TOURISM DEVELOPMENT CORPN. LTD.) [2012 (2) TMI 62 - Supreme Court of India] distinguished on the ground that - the Hon’ble Supreme Court had interpreted the scope of Section 2(11) of the Customs Act, 1962 under which “Customs
area” were defined. No doubt, the duty free shops may be established beyond the Customs Frontiers of India. However, the issue in the present case is whether the said duty free shops
are outside India i.e. whether they are “beyond airspace on territorial waters of India”.
The applicant is not taking goods out of India and hence their supply cannot be called “export” under Section 2(5) of the IGST Act, 2017 or “zero rated supply” under Section 2(23) and Section 16(1) of the IGST Act, 2017. Accordingly, the applicant is required to pay GST at the applicable rates.
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2018 (4) TMI 886
Seizure order - wrong mention of the provision - case of petitioner is that the seized goods were in transit from outside the State the transaction would be covered by the IGST Act, 2017 read with CGST Acy and that the provisions of the UPGST Act or its Rules or the notifications issued therein would not apply - Held that: - even if the seizure is treated to be under Section 129(1) of the Central G.S.T., as there was no provision of E-Way bill on the relevant date under the Central G.S.T. prima facie the seizure appears to be illegal - the goods seized be released along with the vehicle subject to the petitioner furnishing indemnity bond and security - petition disposed off.
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2018 (4) TMI 812
Classification of goods - SIKA Block Joining Mortar - section 97 (2) (a) & (e) of the CGST / WBGST Act, 2017 - whether classifiable under tariff item 3214 90 90 in terms of Chapter Heading No. 3214 to the HSN? - Held that: - HSN 3214 90 90 is a residuary classification. It should include all other products that have the general characteristics mentioned above, and, therefore, classifiable under heading 3214, but are not specifically mentioned. Clearly, ‘Sika Block Joining Mortar’ satisfies the general characteristics of such products as per the Explanatory Notes above, and, therefore, classifiable under this tariff item.
Clearly, a chemical preparation can be classified under such residuary heading only if it is not elsewhere specified. As the Applicant’s product, namely ‘Sika Block Joining Mortar’ is already specified under tariff item 3214 90 90, heading 3824 does not come into the picture.
Ruling:- SIKA Block Joining Mortar” is to be classified under tariff item 3214 90 90 of the Customs Tariff Act, 1975, and, therefore, taxable under serial no. 24 of Schedule IV vide Notification No. 01/2017-Central Tax (Rate) dated 28/06/2017 under CGST Act, 2017 and 1125-FT dated 28/06/2017 under WBGST Act, 2017.
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2018 (4) TMI 811
Classification of goods - skin care preparations - Appellant claims the goods to be Ayurvedic Medicaments. They are meant for therapeutic or prophylactic uses, put up in packaging for retail sale and entirely correspond to the description of goods under HSN 3004 - N/N. 1/2017-CT(Rate) dated 28/06/2017.
Held that: - there is no dispute that the products are manufactured under valid drug license and following the formula prescribed in the authoritative textbooks of Ayurveda. A few ingredients may have been added for preservation of the quality of the product, which, as settled by the apex court on several occasions, should not be considered material while ascertaining the underlying Ayurvedic nature of the product.
It appears only the products, Rupam (Pimple pack) and Pailab (Anti-crack cream) of the list of their products are offered for treatment or prevention of specific skin disorders. The products, namely, Swarnajyoti, Sunayana and Tarumitra-60 have not yet come into existence, and, therefore, excluded from the ambit of examination for the purpose of this ruling. The other products are either already specified under heading 3304 (like talcum powder, sunscreen, moisturising lotion etc.) and, therefore, cannot be considered for inclusion under heading 3004. The remaining products mentioned in the list submitted by them are not offered primarily as medicaments and, therefore, not to be included under heading 3004.
Ruling:- Preparations for the care of the skin namely, Rupam (Pimple Pack) and Pailab (Anti-Crack Cream), in the list submitted by the Applicant of the Application are classifiable as Medicament under heading 3004 of the Customs Tariff Act, 1975 - Preparations listed as Swarnajyoti, Sunayana and Tarumitra-60 have not yet come into existence, and, therefore, no rulings are pronounced on their classification - The remaining products mentioned in the list submitted by them are not offered primarily as medicaments and, therefore, not to be included under heading 3004.
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2018 (4) TMI 810
Classification of supply - UPS along with the battery - Mixed supply / Composite supply - naturally bundled - whether such supplies can be treated as Composite Supply within the meaning of Section 2(30) of the CGST/WBGST Act, 2017? - Section 97 (1) of the GST Act - Held that: - The contract for the supply of a combination of UPS and battery, if not built as a composite machine, is not indivisible. The recipient can split it up into separate supply contracts if he chooses. The goods supplied in terms of such contracts are, therefore, no longer naturally bundled and cannot be treated as a composite supply.
If a combination of goods that does not amount to a composite supply is being offered at a single price, such supplies are to be treated as mixed supplies. Mixed supply is defined under section 2(74) of the GST Act as one where “two or more individual supplies of goods/services or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply”.
Ruling:- The supply of UPS and Battery is to be considered as Mixed Supply within the meaning of Section 2(74) of the GST Act, as they are supplied under a single contract at a combined single price.
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2018 (4) TMI 809
Levy of GST - requirement of registration - charitable institutions - non-profit organisation set up by the Central Government under Clause 17 of the Iron & Steel (Control) Order vide SO 1567 dated 07/04/1971 - main source of income is interest - Applicant declares that it has not been registered under any of the repealed Acts and wants a ruling on whether it is required to be registered under the CGST / WBGST Act, 2017 - Held that: - Exemption under serial no. 1 of the Exemption Notifications for Services is available for charitable activities within the meaning of definition clause (r) of the above notifications - Activities of applicant not eligible for those exemption.
Section 24 of the GST Act requires a person to be registered under certain circumstances even if his aggregate turnover does not exceed the threshold specified under Section 22(1) of the GST Act. It will be apparent from a plain reading of Section 24 that the question is relevant in the context of the Applicant only with respect to Section 24(iii) of the GST Act when the person is required to pay tax under the Reverse Charge.
The Applicant is engaged exclusively in supplying goods and services that are wholly exempt from tax, and, therefore, not liable to be registered in accordance with the provisions under section 23(1) of the GST Act, subject to the condition that the Applicant is not otherwise liable to pay tax under the Reverse Charge mechanism under Section 9(3) of the GST Act or 5(3) of the IGST Act.
As the applicant is unregistered and not liable to be registered, the provisions of Reverse Charge under section 9(4) of the GST Act or 5(4) of the IGST Act will not apply.
Ruling:- The Applicant is not required to be registered under the GST Act if he is not otherwise liable to pay tax under reverse charge under section 9(3) of the GST Act.
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