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TMI Blog2024 (10) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... g the appellant of the right of getting the order issued in their appeal - the word shall in Section 101 of the CGST Act has to be interpreted in an advisory way. Any other interpretation shall have the effect of denying the right of appeal to taxpayers stake holders which is not the scheme/intention of law. It will be interpreted to convey that the AAAR shall endeavour to pass the order in 90 days. Therefore, the argument of expiry of time limit for passing an order is hereby rejected as a preliminary objection as well as an objection to the grounds of appeal. Whether the appeal is barred by limitation? - HELD THAT:- The impugned Order was communicated on 15.09.2022 to the Appellant No. 2 and an appeal was filed by them on 14.10.2022 that was within statutory period of 30 days, accordingly, the appeal was filed within time prescribed, hence not time barred - the appeals filed by the Appellants are well within the period of limitation are not barred by it as provided under proviso to Section 100 (2) or Section 100 (2) of the CGST Act, 2017 - the preliminary objection to this effect raised by the Respondent is liable for rejection and is hereby rejected. Whether due procedure not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, liable to be rejected and the same is hereby rejected. The preliminary objections raised by the Respondent against the appeals filed by the department against the Advance Ruling dated 16.06.2022 are not sustainable and the appeals are maintainable and deserve to be decided on merits. X X X X Extracts X X X X X X X X Extracts X X X X ..... contract, the Respondent (GTA) will be required to send the truck to the customer's factory. After loading of goods, diesel required, calculated on the basis of load and distance for the transportation of such consignment to the destination will be filled in the fuel tank of the truck. 5. Upon completing the transport service, the Respondent (GTA) will raise the invoice charging the freight charge specified in the consignment note excluding the value of diesel provided at no cost by the customer. The invoice will contain detail of the consignment notes, serving as acceptance of the transportation contract at the agreed rate. The Respondent (GTA) will not record the diesel provided by the customer in their accounts. 6. The Authority of Advance Ruling, Rajasthan ('AAR') vide Advance Ruling No. RAJ/AAR/2022-23/08 dated 16th June, 2022 pronounced that "the value of diesel filled free of cost (FOC) by the service recipient is not includable in the value of the GTA service proposed to be provided by the Applicant (GTA) in the facts and circumstances of the present application subject to conditions as mentioned in draft Transport Service Agreement/ contract incorporated in the body of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment or State Government; (b) The monetary value of any act or forbearance, in respect of, in response to, or for the inducement of, the supply of goods or services whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or State Government 8.4 The Appellants asserted that the provision of GTA envisage providing a vehicle in running condition with requisite fuel being a mandatory component, without which the service of GTA cannot be performed. Thus, the supply of GTA service would essentially involve the supplier to bear the cost of fuel i.e. diesel which cannot be isolated through a contractual arrangement. They submitted that even if the diesel is provided by the service recipient is Free of Cost, the value of the same will have to be considered as additional consideration flowing from the recipient to the supplier. Diesel provided on Free of Cost basis under terms of the contract is purely consideration as per Section 2 (31) of the CGST Act, 2017. 8.5 The Appellants submitted that as per Section 15 (2) (b) of CGST Act, 2017, the value of supply shall include "any amount that the supplier is liable to pay in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the aforesaid case are incorrect. 8.10 The Appellants claimed that the findings of AAR in the aforesaid case in respect of applicability of CBIC Circular No. 47/21/2018-GST dated 08.06.2018 are incorrect and not acceptable due to following reasons: (i) that the Circular No. 47/21/2018-GST dated 08.06.2018 issued by the CBIC clarifies a specific situation where moulds and dies owned by Original-Equipment Manufacturers (OEM) are sent free of cost (FOC) to a component manufacturer. (ii) further, the dies etc. are not major input to execute outward supplies. The recipient of supply may at any time change supplier and send his dies/moulds to another supplier. In the instant case, the issue is different and thus the circular is not applicable to this case. (iii) the citation relied upon in the case of M/s Nash Industries (I) Pvt Ltd. 2019 (3) TMI 435-Appellate Authority for Advance Ruling, Karnataka and in the case of M/s Lear Automotive India Pvt. Ltd. 2018 (12) TMI 766, AAR Maharashtra, are not applicable in the instant case on the basis of above terms as these are based on the said CBIC Circular No. 47/21/2018-GST dated 08.06.2018. 8.11 The Appellants contended that the AAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Tribunal held that in the present case, the contracts are artificially bifurcated so as to exclude the charges incurred in use of the goods for providing Event Management Services, which is not permissible. The demand of duty was confirmed. The ratio of this judgment is square! y applicable in the present appeal. 8.12 The Appellants contended that the findings of the Authority of Advance Ruling, Chhattisgarh in their Order No. STC/AAR/07/2020 Raipur dated 04/01/2021 were that cost of diesel to be filled FOC by the service recipient in the engaged chartered (dedicated) vehicles (provided by the applicant) as per the proposed draft agreement would form part of value of supply of service and GST would also be leviable on the this value, under GTA service. This judgment is also squarely applicable in this case. 8.13 Further, the Appellants contended that an appeal was filed against this Order of AAR, Chhattisgarh dated 26.03.2019. The two members of the Appellate Authority had difference in their views and therefore, no final Order could be issued by the Appellate Authority for Advance Ruling of Chhattisgarh. 8.14 The Appellants contended that the impugned Order passed by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Appellant No. 1, the Principal Commissioner of CGST Jodhpur. They also referred to two of their communiques vide letters dated 29.09.2022 and 27. 10.2022 and that no action was taken in respect of these letters. It is noted that Respondent's letters dated 29.09.2022 and 27.10.2022 were not found received in this office. 9.1 The Respondent vide their letter dated 08.03.2024, received via email dated 16.03.2024, expressed concern about the considerable delay in the appeal process, which commenced almost one and a half years after its initial filing and after the Respondent's request for seeking time to file preliminary objections vide letter dated 29.09.2022 (after which no communication was received by them). They also sought clarification on the legal provisions enabling the revival or current pursuit of the appeal, considering its lapse due to time limitations. 9.2 Additionally, the Respondent alleged that during the personal hearing on 07.03.2024, the Joint Commissioner, who appeared for hearing, solely focused on the merits of the case and neglected to address the issue of maintainability of the appeal. The responded argued that the Deputy Commissioner, State Tax, Surat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions were let known through the standing Counsel of the Department." 9.4.3 Further vide letters dated 29.09.22 and 27.10.22 the respondent allegedly intimated that the appeals filed by CGST and SGST are both time barred and filed without following procedure. It is observed that both letters were never received in this office. 9.4.4 The contents of their letter dated 08.03.24 received in this office via email dated 16.03.24 are the detailed explanations and grounds of preliminary objections of the Respondent. The Respondent however was apprehensive that documents prayed for were not supplied to them by the department, owing to which they could not conclude their submissions. 9 .4.5 The Respondent concluded the letter requesting for the documents/correspondences again in order to enable them to comply with the Hon'ble High Court Order. 9.5 The personal hearing held on 07.05.2024 was attended by the Joint Commissioner and the Assistant Commissioner, State Tax, Suratgarh as Appellant No. 2 and Sh. Sanjay Jhanwar, Sr Advocate, Sh. Rahul Lakhwani, Advocate and Sh. Ashish Sharma (authorized representatives of the Respondent). In the personal hearing, the Assistant Commissioner, State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to be provided by this office. 11. The Respondent furnished following preliminary objections with respect to the appeals: I. THAT THE TIME LIMIT FOR PASSING ORDER u/s 101 OF CGST ACT, 2017 STAND EXPIRED. A. The Respondent argued that the time limit of passing order as per Section 100 (2) of CGST Act. 2017 is ninety days from the date of filing of the appeal. Relevant extract of the same is reproduced below for ready reference - 101. Orders of Appellate Authority.- (1) The Appellate Authority may, after giving the parties to the appeal or reference an opportunity of being heard, pass such order as it thinks fit, confirming or modifying the ruling appealed against or referred to. (2) The order referred to in sub-section (1) shall be passed within a period of ninety days from the date of filing of the appeal under Section 100 or a reference under sub-section (5) of Section 98. The Respondent argued that the appeals were filed by Appellants No. 1 and 2 on 12.08.2022 and 14.10.2022 respectively, and over 1.5 years have passed since then. They asserted that the deadline for issuing an order under Section 101 (2) of the CGST Act has expired, rendering the appeal orders ineli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 169 of CGST Act, 2017 which provides as under- 169. Service of notice in certain circumstances. (3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved. The Respondent argued that the Appellants till date have not proved the contrary, that the impugned order has been received after the expiry of the period normally taken by such post in transit. The Respondent therefore has a strong opinion that in pursuance to Section 169 (3) of the CGST Act, the order had been communicated to the Appellants. They contended that the dates mentioned in the appeal memo as the dates of receipt by the Appellants are incorrect and the appeal filed by the Appellants being barred by limitation is liable to be rejected. III. THAT THE APPEALS WERE FILED WITHOUT FOLLOWING THE PROCEDURE AS PRESCRIBED UNDER THE LAW. A. The Respondent submitted that as per Section 100 (3) appeal shall be in such form, accompanied by such fee and verified in such manner as may be prescribed. B. They referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications, is referred to ascertain the meaning of this term Procedure on receipt of application. 98. (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records: Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer. (2) The Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application: Provided that 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 an applicant under any of the provisions of this Act: Provided further that no application shall be rejected under this sub-section unless an opportunity of hearing has been given to the applicant: Provided also that where the application is rejected, the reasons for such rejection shall be specified in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recipient, as per contractual terms. This submission was duly recorded in the ruling issued by the Authority of Advance Ruling. The relevant extract is reproduced as below: D. COMMENTS OF THE JURISDICTIONAL OFFICER The germane part of the Comments received from the Deputy Commissioner, State Tax, Circle Suratgarh vide letter dated 04.06.2022 is as under: 5. In Annexure 'B' he has submitted that: In terms of the contract proposed being executed, diesel is to be consumed in providing the service of (transportation of the goods, is in the scope of customer and for is provided on free of cost basis. The said diesel required for the trip will be filled in the truck deployed by the Applicant for the transportation. the parties have clear understanding that the said diesel shall be used/consumed exclusively for the transportation of goods belonging to the customer and that the property in the diesel will not pass to the Applicant. The freight for the transportation is fixed based on the scope of transportation contract, which excludes diesel. In the light of the above arrangement. while undertaking the activity of transportation of the vendor's goods under this agreement, the truc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, from the above provisions, in our opinion, GST is not leviable on Free of Cost (FOC) material provided by service recipient to applicant when such goods are in the scope of service recipient asper contractual terms. The Respondent averred that from the perusal of above reproduced comments of the Appellant No. 2 submitted before the AAR it is evident that the jurisdiction/concerned officer i.e. Appellant No. 2 agreed that in the present case, the value of material provided free of cost by the recipient would not be included in the value of supply as per the provisions of Section 15 of CGST Act, 2017. The Respondent submitted that the order passed by AAR, Rajasthan is an 'Consensus ad Ordinem' and Appellant is bound by the 'Principle of Estoppel'. The Appellant in the garb of appeal remedy is attempting to revisit the stand taken before the authority of Advance Ruling which is bad in law and liable to be rejected. 12. In light of the facts and submissions made hereinabove, the Respondent requested that the AAAR may decide the preliminary objections raised vide different communications made by the Respondent. Further they prayed that the following recourse may be taken: i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey further informed that they had received the impugned order itself in their office on 29.06.2022 and filed an appeal against the order on 12.08.2022. The date of filing of appeal was beyond the period of 30 days as prescribed in Section 100 (2) of CGST Act 2017. However, they requested to condone the delay in filing of appeal. The Appellant No. 2, the Joint Commissioner, State Tax, Suratgarh vide their letter dated 05.06.2024 informed that as per the records available in their office, the impugned Order was received by them on 15.09.2024. They submitted that accordingly they had filed the appeal on 14.10.2024 which was within the stipulated time for filing the appeal against an Advance Ruling. With regard to contention of the Respondent that the impugned Order was uploaded on 17.06.2022 on GST Portal, they submitted that this order was not reflecting/showing in their ID hence could not be treated as communicated. DISCUSSION AND FINDINGS 15. We have carefully considered the material evidence and facts available on record including the oral submissions and additional written submissions made by the Appellant No. 2 during the hearings dated 07.03.2024 and 07.05.2024. We have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the parties to take such remedy as may be available under the law, if they are aggrieved by the order that may be passed." 18. We can discern the following from the order dated 22.09.2022 passed by the Hon'ble High Court: (i) Notice of the appeal had already been issued to the Respondent who had not filed any objection with regard to maintainability of the appeal when the above mentioned Order dated 22.09.2022 was passed; (ii) The Respondent was given liberty to file the preliminary objections and the Appellate Authority was directed to first decide the preliminary objections as and when they were filed before further proceedings in the matter. 19. In view of the directions given by Hon'ble Rajasthan High Court, Jodhpur, we proceed to examine & decide the preliminary objections first. Written submissions to preliminary objections 20. We note that the respondent has titled the preliminary objections as "written submissions in respect of preliminary objections raised on behalf of Mis Sunil Giri". From what has been stated in the detailed submissions it transpires that they are claiming that "the Respondent has already filed preliminary objections to the appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the law is mandatory or advisory. In this context, it is pertinent to refer to the Section 101 of the CGST Act 2017 which reads as: Orders of Appellate Authority. 101. (1) The Appellate Authority may, after giving the parties to the appeal or reference an opportunity of being heard, pass such order as it thinks fit, confirming or modifying the ruling appealed against or referred to. (2) The order referred to in sub-section (1) shall be passed within a period of ninety days from the date of filing of the appeal under section 100 or a reference under sub-section (5) of section 98. (3) Where the members of the Appellate Authority differ on any point or points referred to in appeal or reference, it shall be deemed that no advance ruling can be issued in respect of the question under the appeal or reference. (4) A copy of the advance ruling pronounced by the Appellate Authority duly signed by the Members and certified in such manner as may be prescribed shall be sent to the applicant, the concerned officer, the jurisdictional officer and to the Authority after such pronouncement. 22.2 Upon reading the subsection 2 above, we note that the law provides a right to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in the light of the settled principles, and while ensuring that intent of the Rule is not frustrated." 22.2.2 We also note that the hon'ble Supreme Court in the case of Mohan Singh v. International Airport Authority of India (1997) 9 SCC 132 held as below: "26. Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word "shall", though prima facie gives impression of being mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature ad design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the Court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provided for any contingency for non-compliance; if the word "shall" is construed as having mandatory character, the mischief that would e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person 'may appeal to a tribunal and the tribunal has a correlative duty to hear and determine the appeal. Sometimes also language which is apparently merely permissive is construed as imposing a duty, as where 'may' is interpreted to mean 'shall. Even though no compulsory words are used, the scheme of the Act may imply a duty. 22.2.4 We also note that the Hon'ble SC in the following cases has held that the use of 'shall' does not always exude a sense of mandatory nature: • In State of UP v. Manbodhan Lal Srivastava, while examining the terms of Article 320, the Apex Court observed, ".... the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect..." • In Khub Chand v. State of Rajasthan, the Hon'ble Supreme Court held: "Doubtless, under certain circumstances, the expression "shall" is construed as "may". The term "shall" in its ordinary significance is mandatory ... unless such an interpretation leads to some absurd or inconvenient consequences.....'' 22.2.5 We also find it appropriate in the instant case to refer to the judgment of Hon'ble SC in case of Smt. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly on a consideration of the purpose and object of the enactment in making the provision. To ascertain the intention, the court has to examine carefully the object of the statute, consequence that may follow from insisting on a strict observance of the particular provision and, above all, the general scheme of the other provisions of which it forms a part. The purpose for which the provision has been made, the object to be attained, the intention of the legislature in making the provision, the serious inconvenience or injustice which may result in treating the provision one way or the other, the relation of the provision to other consideration which may arise on the facts of any particular case, have all to be taken into account in arriving at the conclusion whether the provision is mandatory or directory. Two main considerations for regarding a rule as directory are: (i) absence of any provision for the contingency of any particular rule not being complied with or followed, and (ii) serious general inconvenience and prejudice to the general public would result if the act in question is declared invalid for non-compliance with the particular rule. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional officer and the applicant." 23.3 Thus, we note that a period of thirty days is available to the aggrieved for filing of appeal from the date on which the ruling is communicated to them. In the instant case it has been specifically mentioned by the Appellants that the impugned order was received by them on 11.08.2022 and 15.09.2022 respectively. We observe that considering date of receipt of the order, the period of thirty days had not expired when the respective appeals have been filed by them on 12.08.2022 and 14.10.2022. Still the Appellants requested that extension of one month for filing of appeal may be granted to them in terms of proviso to Section 100 (2) of the CGST Act, 2017 which provides: "Provided that the Appellate Authority may, if it is satisfied that the Appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further period not exceeding thirty days." 23.4 We observe that the Respondent disputed the dates of receipt of the impugned ruling in the respective offices of the Appellants 1 and 2. The Respondent claimed that as per the information available on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was within the stipulated time for filing the appeal against an Advance Ruling. With regard to contention of the Respondent that the impugned Order was uploaded on 17.06.2022 on GST Portal, they submitted that this order was not reflecting/showing in their ID hence could not be treated as communicated. We observed that the impugned Order was communicated on 15.09.2022 to the Appellant No. 2 and an appeal was filed by them on 14.10.2022 that was within statutory period of 30 days, accordingly, we hold that the appeal was filed within time prescribed, hence not time barred. 23.6 We, therefore, hold that the appeals filed by the Appellants are well within the period of limitation are not barred by it as provided under proviso to Section 100 (2) or Section 100 (2) of the CGST Act, 2017. Consequently, the preliminary objection to this effect raised by the Respondent is liable for rejection and is hereby rejected. Third objection-Procedure not followed 24. The Respondent argued that the appeals have been filed by the Appellants in hard copy which is contrary to the express requirements of Section 100 (3) of the CGST Act, 2017 read with Rule 106 (2) of the CGST Rules, 2017 as the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits during the course of decision of the application seeking Advance Ruling and since he is also the jurisdictional officer in the matter, the Central GST authority is neither 'concerned officer' nor 'jurisdictional officer'. 25.1 We note that the provisions concerning filing of appeal against the Advance Ruling as provided in Section 100 of the CGST Act, 2017 read as follows: "(1) The concerned officer, the jurisdictional officer or an applicant aggrieved by any Advance Ruling pronounced under sub-section (4) of Section 98, may appeal to the Appellate Authority. 25.2 From perusal of the said provisions of Section 100 ibid we find that the terms 'concerned officer' and 'jurisdictional officer' have been used for referring to two different persons who are distinct from each other and nowhere does the sub-section give an impression that concerned officer and jurisdictional officer can be one and the same authority of State GST or Central GST. 25.3 Further we find it pertinent to refer to the provisions governing forwarding of a copy of the Advance Ruling as contained in Section 98 of the CGST Act, 2017 wherein the said terms have been employed as follows: "(7) A copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in Section 100 of the CGST Act, 2017 which are reproduced below: "(1) The concerned officer, the jurisdictional officer or an applicant aggrieved by any Advance Ruling pronounced under sub-section (4) of Section 98, may appeal to the Appellate Authority. (2) Every appeal under this Section shall be filed within a period of thirty days from the date on which the ruling sought to be appealed against is communicated to the concerned officer, the jurisdictional officer and the applicant: Provided that the Appellate Authority may, if it is satisfied that the Appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further period not exceeding thirty days. (3) Every appeal under this Section shall be in such form, accompanied by such fee and verified in such manner as may be prescribed." 26.2 From perusal of the provisions of Section 100 of the CGST Act, 2017, we find it evident that they do not provide for any restrictions so far as the grounds of appeal are concerned. We note that so long as the 'jurisdictional officer' or "the concerned officer" is aggrieved by the Advance Ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the AAR to the effect that GST is not leviable on free of cost (FOC) materials supplied by service recipient to applicant when such goods are in the scope of service recipient as per contractual terms. In this regard, the Joint Commissioner, State Tax, Suratgarh vide their aforementioned letter dated 08.05.2024 informed that the stand taken by the Deputy Commissioner, State Tax, Circle Suratgarh, had implication for the whole state of Rajasthan. As such approval of higher officers was required before submitting the comments to AAR. Later on, the matter came to the notice of higher officers and it was felt that the stand taken by the Deputy Commissioner, State Tax, Circle Suratgarh, was not correct, legal and proper. Consequently, it was decided to file appeal in the matter and appeal was filed accordingly. 26.6 It is a settled position of law that there is no estoppel against the State and no estoppel against Statute implying that the rule of estoppel does not operate in the instant case. At the same time, we find that as a principle "Only a competent person's promise can operate as estoppel" A representation can operate to create promissory estoppel only if it was withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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