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GST - Case Laws
Showing 13761 to 13780 of 13912 Records
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2018 (4) TMI 808
Overseas Education Advisory services - promotion of courses of foreign universities among prospective students - place of supply/provision of service - whether the service provided to the Universities abroad is to be considered “export” within the meaning of Section 2(6) of the Integrated Goods and Services Act, 2017, and, therefore, a zero-rated supply under the CGST / WBGST Act 2017?
Held that: - in the case of Export of Services all the conditions as laid down under Section 2(6) of IGST Act 2017 is to be followed in totality without any violation, and that there is no scope of partial compliance of the conditions laid down therein.
The Applicant is facilitating recruitment / enrolment of students to foreign Universities. Promotional service is incidental and ancillary to the above principal supply and the Applicant is paid consideration in the form of Commission, based on performance in recruiting students, as a percentage of the tuition fee collected from the students enrolled through the Applicant. The Applicant, therefore, represents the University in the territory of India and acts as its recruitment agent.
Place of supply of services - Held that: - Whatever services the applicant provisions are provided only as a representative of the University and not as an independent service provider - Being an intermediary service provider, the place of the Applicant’s supply shall be determined under section 13(8)(b) of the IGST Act and not under section 13(2) of the IGST Act. - The place of supply is the territory of India.
As the condition under section 2(6)(iii) of the IGST Act is not satisfied, the Applicant’s service to the foreign universities does not qualify as “Export of Services”, and is, therefore, taxable under the GST Act.
Ruling:- The services of the applicant are not “Export of Service” and are taxable under the GST Act. This ruling is valid subject to the provisions under Section 103(2) until and unless declared void under Section 104(1) of the GST Act.
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2018 (4) TMI 807
Seizure of goods alongwith vehicle - inter-state supply - genuine and original T.D.F. Form not present - section 129(3) of the U.P. GST Act 2017 - Held that: - on the relevant date i.e. 17.12.2017 there was no requirement of carrying T.D.F. Form-1 in the case of an inter-State supply of goods. In fact on the relevant date there was no prescription of the documents to be carried in this regard under Rule 138 of the C.G.S.T. Act 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notification dated 21.7.2017 issued under Rule 138 of the U.P.G.S.T. Act 2017, which was not applicable, is clearly illegal.
Cross-empowerment under section 4 of I.G.S.T. Act 2017 and section 6 of C.G.S.T. Act 2017 merely means that State Authorities empowered under the U.P.G.S.T. Act 2017 can also enforce the provisions of C.G.S.T. Act 2017 or I.G.S.T. Act 2017, but it does not mean that they can apply the provisions of U.P.G.S.T. Act 2017 or Rules made thereunder to cases of inter-State trade in violation of section 20(xv) of I.G.S.T. Act 2017.
Petition allowed - decided in favor of petitioner.
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2018 (4) TMI 608
Detention of goods - absence of Transit Declaration Form (TDF) - penalty - Held that: - in view of the fact that the goods have been seized on a single reason of absence of TDF without any other allegation in respect of illegal import of the goods into the State of U.P., the writ petition disposed off with a direction that subject to the petitioner furnishing security of the amount demanded, in the shape of indemnity bond as provided under Rule 140, the seized goods and the Truck may be released forthwith in favor of the petitioner.
Penalty - Held that: - the matter is still pending before the Proper Officer - penalty proceedings are not entered into.
Petition disposed off.
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2018 (4) TMI 585
Transitional credit - Transferring CENVAT credit u/s 174(1) and 174(3) of CGST Act, 2007 - validity of conditions imposed - transitional credit - right to aval the credit has already accrued under Rule 4(7) of the CENVAT Credit Rules, 2004 - argument is that the right to avail CENVAT credit is a matter of right accrued under the repealed Act, namely, the Central Excise Act, 1944. Once the right is accrued, the new enactment or repeal of the old Act cannot debar or disentitle the petitioner of the accrued right - Section 174 of the CGST Act, 2017.
Held that: - The repeal of the Acts mentioned in subsection (1) of Section 174 would not affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders made under such repealed or amended Acts. That is saved and except the proviso below subsection (2) of Section 174 - It is too well settled that right to take advantage of a statutory provision cannot be said to be an accrued right and similarly a right which would, if allowed to be asserted, will affect adversely the larger public interest that cannot be permitted to be enforced.
Whether rights are flowing from the Cenvat Credit Rules, 2004 - Held that:- the learned Additional Solicitor General is right in his contention that a CENVAT credit is a mere concession and it cannot be claimed as a matter of right. If the CENVAT Credit Rules under the existing legislation themselves stipulate and provide for conditions for availment of that credit, then, that credit on inputs under the existing law itself is not a absolute but a restricted or conditional right. It is subject to fulfilment or satisfaction of certain requirements and conditions that the right can be availed of.
The scheme of the new law that the object and purpose sought to be achieved after its introduction of the new law is of not permitting the existing law arrangement to continue endlessly. Some day or some time has been stipulated as appointed day for the new regime to come into force. For it to come into force and function effectively, the transitional arrangements have been made. They have clear nexus, therefore, with the object sought to be achieved. They cannot be struck down as having no such relation or nexus.
We cannot also by any comparative analysis of the Central and State Law hold that this condition, as imposed, is unreasonable.
Petition dismissed.
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2018 (4) TMI 583
Levy of GST IGST - high sea sale - supply from one country to another country without bringing the goods into India - goods sold to the company in USA, where goods sold are shipped directly from China to USA without entering India - On the sale of goods to the company in USA, where goods sold are shipped directly from China to USA without entering India - goods procured from China not against specific export order - sale of goods from Netherlands warehouse to their end customers in and around Netherlands, without entering India.
Held that:- the integrated tax on goods imported into India shall be levied and collected at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962 i.e.-on the date determined as per provisions of Section 15 of the Customs Act, 1962.
Circular 33/2017-Customs dated 01.08.2017 has clarified that IGST on high sea sale (s) transactions of imported goods, whether one or multiple, shall be levied and collected only at the time of importation i.e. when the import declarations are filed before the Customs authorities for the customs clearance purposes for the first time. Further, value addition accruing in each such high sea sale shall form part of the value on which IGST is collected at the time of clearance - The clarification given by the CBEC in the above Circular regarding the leviability of IGST and the point of collection thereof in respect of high sea sales of imported goods is, mutatis mutandis, applicable in the case of the applicant.
Ruling:- The goods are liable to IGST when they are imported into India and the IGST is payable at the time of importation of goods into India - The applicant is neither liable to GST on the sale of goods procured from China and directly supplied to USA nor on the sale of goods stored in the warehouse in Netherlands, after being procured from China, to customers, in and around Netherlands, as the goods are not imported into India at any point.
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2018 (4) TMI 582
Scope of the term supply - whether recovery of food expenses from employees for the canteen service provided by the applicant / company comes under the definition of outward supplies and are taxable under Goods & Service Tax Act? - Held that: - From the plane reading of the definition of "business", it can be safely concluded that the supply of food by the applicant to its employees would definitely come under clause (b) of Section 2(17) as a transaction incidental or ancillary to the main business - Even though there is no profit as claimed by the applicant on the supply of food to its employees, there is "supply" as provided in Section 7(1 )(a) of the GST Act, 2017. The applicant would definitely come under the definition of "Supplier" as provided in sub-section (105) of Section 2 of the GST Act, 2017.
The recovery of food expenses from the employees for the canteen services provided by company would come under the definition of 'outward supply' as defined in Section 2(83) of the Act, 2017, and therefore, taxable as a supply of service under GST.
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2018 (4) TMI 581
Rate of tax - standing rubber trees - applicant contends that the tax liability of timber and firewood/fuel wood is explained under HSN code 4401 and there is no direction to collect GST for standing trees of rubber trees which fall under HSN code 06. But, the State Farming Corporation is demanding 18% on live rubber trees - Held that: - under the contract of supply, growing crops, i.e., rubber trees are agreed to be severed before supply and hence, comes under the definition of 'goods'. Thus, standing rubber trees no longer remain as such. Therefore, it can only be treated as 'wood in rough form'.
In GST, firewood is exempted as per HSN Code 4401. There is no differentiation between soft wood and hardwood in GST.
The rate of tax on rubber wood in the aforesaid transaction is 18% under the HSN 4403.
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2018 (4) TMI 580
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 579
Detention of goods - it was alleged that the goods were being transported without the requisite documents - Section 129 of the CGST Act as also the Kerala SGST Act - the requisite documents were subsequently furnished - Held that: - the writ petition disposed off directing the second respondent to complete the adjudication provided for under Section 129 of the said statutes within seven days.
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2018 (4) TMI 531
Detention of goods - Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017 - Held that: - the writ petition disposed off directing the competent authority among the respondents to complete the adjudication provided for under section 129 of the statutes - petition disposed off.
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2018 (4) TMI 530
Seizure order - Section 129(1) of the U.P. G.S.T. Act, 2017 - goods seized on the ground that the goods was being transported without E-way bill-02, the GSTIN number written on the tax invoice belongs to another dealer situates at Allahabad - case of petitioner is that no opportunity of being heard has been afforded to the petitioner before passing the seizure order - principles of Natural Justice.
Held that: - Since the tax invoice indicating the tax charged and the same admittedly found during the course of inspection/detention and E-way bill-02 has been downloaded much before the seizure order, we see no justification in the impugned seizure order and therefore, we have no option but to allow the present writ petition - the seizing authority though has mentioned the GSTIN number of some dealer situates at Allahabad but no details of the said dealer has been given in the impugned seizure order nor the details of the mobile number holder.
Also, the vehicle has been detained and the goods/vehicle was seized by the respondent no.4 on 27.3.2018 whereas the time has been granted for submission of reply and appearance of the person concerned before the respondent no.4 on the later date.
Petition allowed - seizure order quashed - decided in favor of petitioner.
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2018 (4) TMI 461
Levy of GST on the one-time lease premium - letting plots of land on lease basis - long term lease - The members of the association were allotted plots. Under the scheme, the tenderer/bidder is required to make an offer by quoting a rate per square meter on account of payment of lease premium. The plots are to be allotted on long term lease of 60 years. - It is argued that, a long term lease of 60 years tantamounts to sale of the immovable property, since the lessor is deprived of, by the allotment the right to use, enjoy and possess the property. Our attention is invited to section 105 of the Transfer of Property Act, 1882.
Held that:- if one refers to Schedule II, section 7, then, Item No. 2 styled as land and building and any lease, tenancy, licence to occupy land is a supply of service. Any lease or letting out of a building, including commercial, industrial or residential complex for business, either wholly or partly is a supply of service. It is settled law that such provisions in a taxing statute would have to be read together and harmoniously in order to understand the nature of the levy, the object and purpose of its imposition. No activity of the nature mentioned in the inclusive provision can thus be left out of the net of the tax. Once this law, in terms of the substantive provisions and the Schedule, treats the activity as supply of goods or supply of services, particularly in relation to land and building and includes a lease, then, the consideration therefor as a premium/one-time premium is a measure on which the tax is levied, assessed and recovered. We cannot then probe into the legislation any further.
The demand for payment of GST is in accordance with law. The said demand cannot be said to be vitiated by any error of law apparent on the face of the record. In these circumstances, we do not find any merit in the writ petition. - Decided in favor of revenue.
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2018 (4) TMI 409
Transitional credit - restriction on invoice upto twelve months only - Constitutional validity of Clause (iv) of sub-section (3) of Section 140 of the Central Goods and Services Tax Act, 2017 - Notice issued to the Attorney General, returnable on 22nd January, 2018.
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2018 (4) TMI 369
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 368
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 366
Detention of goods with conveyance - Section 129 of the CGST and SGST Acts - discrepancy of the documents - the crew of the vehicle interchanged the documents of the goods to be delivered to the first petitioner and to the distributor at Ottappalam - Held that: - The grievance voiced by the first petitioner is one to be raised before the adjudicating authority under Section 129 of the CGST and SGST Acts - petition is disposed of directing the second respondent to complete the proceedings initiated in terms of Ext.P1 notice against the first petitioner - petition disposed off.
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2018 (4) TMI 348
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 347
Seizure of goods - UPGST Act - It is the contention of the petitioner that he has not violated any provision of the UPGST Act - Held that: - subject to deposit of security other than cash or bank guarantee or in the alternative indemnity bond, equal to the value of tax and penalty, to the satisfaction of seizing authority, the goods of the petitioner along with the vehicle bearing registration number PB23T- 4366 may be released forthwith - petition disposed off.
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2018 (4) TMI 346
Security deposit - Release of detained goods - the goods not being accompanied by a valid document as contemplated under the CGST and SGST Act and Rules - Held that: - it is apparent that there is no intention to evade payment of tax - on finding that the transportation of the goods was not accompanied by the valid documents as contemplated under the CGST/SGST Act and Rules, the writ petition is disposed off by directing the 1st respondent to release the goods and the vehicle to the petitioner, on the petitioner furnishing a bank guarantee for the amount demanded - petition disposed off.
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2018 (4) TMI 345
Release of goods with vehicle - stock transfer - the transportation of the goods was not accompanied by a valid copy of the stock transfer invoice/delivery chalan that ought to have accompanied the goods as per the provisions of Rule 55 of the CGST Rules - Held that: - there is no dispute with regard to the genuineness of the invoice, a copy of which accompanied the transportation of the goods - there need not be a detention of the goods for the purposes of determining the liability of the petitioner to penalty - petition disposed off.
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