weekly gst communique · petitioner exported the boilers on payment of applicable excise duty. the...
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Weekly GST Communique
GST
Important Judgements/ Ruling of the week
• COVID-19: SC stays Kerala & Allahabad HC order of not levying taxes, etc. till April 6
• Gujarat HC: allows Rebate of Excise Duty to Petitioner in Cash instead of Cenvat Credit in post GST
regime
• AAR: Holds Development of Plots by Developer in JDA is Taxable under Works Contract Services
Notifications and Circulars, etc.
• CBIC extends the due date for Electronic Sealing- Deposit in and removal of goods from Customs
Bonded Warehouses
• CBIC seeks to exempt Foreign Airlines Company from furnishing Reconciliation Statement i.e. GSTR-
9C
• CBIC issued clarification in respect of Appeal in regard to Non - Constitution of Appellate Tribunal
Important Press Release
• PIB Issued Statistics on Export of MSME Products up to Dec 2019
Income Tax
Important Notifications of the week
• MOF has issued the Direct Tax Vivad Se Vishwas Rules, 2020
• President gives assent to the Direct Tax Vivad Se Vishwas Act, 2020 on Mar 17, 2020
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GST
Important Judgements/Ruling of the week
COVID-19: SC stays Kerala & Allahabad HC order of not levying taxes, etc. till April 6
Facts
The Hon'ble HC, Allahabad in Writ Petition (Civil) No.7014/2020 has recently issued directions to all the concerned & competent authorities under the State Government, restraining them from taking any coercive measures against any person or body of persons in the society so as to force him/them to approach the Court for the redressal of grievance as follows -
1. All the recovery proceedings at the end of the district administration, financial institutions and other administrative bodies/authorities/agencies and otherwise at the end of the instrumentalities of the State shall be deferred for a period of two weeks i.e. till April 6, 2020.
2. All the auction proceedings, if any pending or initiated in the meanwhile, shall remain deferred for a period of two weeks i.e. till April 6, 2020.
3. The District Magistrates and the Administrative Authorities are also restrained from issuing any directions for presence of any person or persons in connection with any pending or any other proceeding for a period of two weeks i.e. till April 6, 2020.
4. No demolition exercise shall be carried out at the instance of District Administration or any authorities under the State Government/local bodies for a period of two weeks i.e. till April 6, 2020.
5. No eviction or dispossession exercise against anyone be undertaken for a period of two weeks i.e. till April 6, 2020.
Similarly, Hon’ble HC, Kerala in Writ Petition (Civil) No.8231/2020 dated March 19, 2020 passed similar direction stating “…I deem it appropriate to issue general directions to all departments concerned like banks, financial institutions, Income Tax authorities, erstwhile KVAT, GST, recovery of tax on motor vehicles and building tax to defer the recovery proceedings or coercive measures till April 6, 2020.”
The Union Ministry of finance (“Petitioner”) filed a Special Leave Petition (“SLP”) questioning the jurisdiction of the High Court(s) to pass above-mentioned directions.
Issue Whether the HC(s) has jurisdiction to pass such directions.
Held The Hon’ble SC in the matter of Union of India v. PD Sunny & others [SLP (Civil) Diary No. 10669/2020 dated March 20, 2020] held as under:
• Ex-parte ad-interim stayed above-mentioned order passed by Hon’ble HC, Kerala and Allahabad, in view of the stand taken by the Government of India through learned Solicitor General, before SC, that the Government is fully conscious of the prevailing situation and would itself evolve a proper mechanism to assuage concerns and hardships of everyone.
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Gujarat HC allows Rebate of Excise Duty to Petitioner in Cash instead of Cenvat Credit in post GST regime
Facts
Thermax Ltd. (“Petitioner”) is engaged in the manufacture of Boilers, Heaters, Heat Pumps and Pollution control equipment for industrial use and all these equipment’s are capital goods falling under Chapter 84 of the Central Excise Tariff Act, 1985 (“CETA”). The Petitioner has major manufacturing set up at Pune, Maharashtra and Baroda in Gujarat.
The Petitioner availed credit on the inputs, capital goods and input services used in the manufacturing of finished goods which are chargeable to excise duty. It is the case of the Petitioner that one of the customers M/s. Ansaldo Caldale SpA (“Siemens Projects”) had placed order on the Petitioner for supply of Boiler at Jeddah, Saudi Arabia. Therefore, with a view to carry out complete assemble, the Petitioner signed a lease agreement with Special Economic Zone on November 3rd, 2007 and the Petitioner therefore was temporarily given Survey No.169 at village: Dhrub for assembling the boilers. The Petitioner exported the boilers on payment of applicable excise duty.
The Petitioner filed a rebate claim under Rule 18 of the Central Excise Rules, 2002 (“Central Excise Rules”) on June 16th, 2008. Thereafter, after a period of three months i.e. on September 12th, 2008, show cause notice was issued proposing to deny rebate claimed by the Petitioner. On March 5th, 2009, the Petitioner filed reply to the show cause notice and thereafter, the Petitioner filed written submissions.
The Respondent rejected the rebate claim filed by the Petitioner on July 20th, 2011. Therefore, the Petitioner has challenged the same before the Commissioner of Central Excise (Appeals), Rajkot, who in turn rejected the appeal on November 22, 2011 by upholding the order in original dated July 20th, 2011. Being aggrieved with the said order, the Petitioner filed Revision Application before the Revisionary Authority on December 27, 2017, which had rejected the Revision Application of the Petitioner.
Issue
Whether the Petitioner is entitled to receive refund of amount of duty paid in cash instead of credit to
CENVAT account?
Held The Hon’ble Gujarat High Court (“Gujarat HC”) passed the following ruling in the matter of Special Civil Application No. 11846 of 2018 dated February 11, 2019:
Learned Advocate for the Petitioner has drawn the attention of the Court to the order passed by this very Court on August 3rd, 2018 which reads as follows –
“The petitioner has challenged a revision order dated December 27th, 2017, in which, the revisional authority has held that the petitioner had procured duty paid inputs and goods manufactured which were physically exported on payment of excise duty which was not required to be paid. The duty paid by the petitioner would be therefore without authority of law and cannot be said to be duty paid on the exported goods. On such basis, the revisional authority rejected the petitioner's case for rebate on the exported goods, however, on the ground that the Government cannot retain an amount which is not due to it. The Revisional Authority directed that the amount so collected, shall be recredited in the petitioner's CENVAT Credit Account.
Counsel for the petitioner submitted that the petitioner has no grievance about the logic adopted by the Revisional Authority, however, in view of the ushering effect of the GST regime with effect from July 1st, 2017, the question of CENVAT Credit which becomes available after July 1st, 2017 has to be deal with differently. Our attention was drawn to subsection (3) of Section 142 of the Central Goods and
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Services Tax Act, 2017 (“CGST Act”). On the basis of such provision, counsel contended that the CENVAT Credit should have been paid in cash since the revision order was passed after July 1st, 2017.”
Learned advocate for the Petitioner has also relied upon the decision dated March 26th, 2018 passed by Commissioner (Appeals) in the case of Lanxess India (P.) Ltd. in Order-in-Appeal No.IND-EXCUS-000-APP-776 to 792-17-18, wherein the refund is directed to be paid in cash. He, therefore, submitted that the present petition may be allowed and the Authority may be directed to pay the refund in cash instead of crediting the same in CENVAT Account, which has become redundant after advent of GST Regime.
Learned advocate for the Respondent submitted that appropriate order may be passed in view of the provisions of Sub-Section (3) of Section 142 of the CGST Act.
The Respondent has in Paras 15 & 16 of the Order No.24/2017-CX(WZ)/ASRA/Mumbai dated December 27th, 2017 (“impugned order”) observed as under:
“Government, however, also observes that the applicants had procured the duty paid inputs and the goods manufactured were physically exported on payment of excise duty which was not required to be paid by them. The duty paid without authority of law cannot be treated as duty paid on the exported goods. As such rebate claim is not admissible in terms of Rule 18 of Central Excise Rules, 2002, read with Notification No.19/2004-C.E. (N.T.), dated 6.9.2004. However, as held in many Government of India Revision Orders, Government is of opinion that the duty paid in this instant case is to be treated as voluntary deposit made by the applicants at their own volition which is required to be returned to them in the manner it was initially paid, because the Government cannot retain the same without any authority of law. The Government places its reliance on the following GOI Revisions Orders:
2012 (281) ELT 156 (GOI) JohariDigital Health Care Ltd., In re
2012 (284) ELT 737 (GOI) GTN Engineering (India) Ltd., In re
2012 (278) E.L.T. 559 (G.O.I.) - Indira Gandhi Mahila Sahakari Soot Girni Ltd., In re
2012 (278) E.L.T. 421 (G.O.I.) - Praj Industries Ltd., In re
2012 (278) E.L.T. 401 (G.O.I.) - Honeywell Automation (India) Ltd., In re
2012 (283) ELT 466 (GOI) - Flamingo Pharmaceuticals Ltd., In re
2014 (313) ELT 913 (GOI) - Ginni International Ltd., In re
2014 (313) ELT 876 (GOI) - Watson Pharmaceuticals (P.) Ltd., In re
2014 (312) ELT 929 (GOI) - MonomerChemical Industries (P.) Ltd., In re
Since, Government cannot retain any amount which is not due to it, as has been held in aforesaid orders, the amount so collected is allowed to be re-credited in Cenvat Account. Government allows the applicant to take re-credit of said amount in their Cenvat Credit Account. The impugned order-in- appeal is modified to this extent."
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It is thus eminently clear from the observations made in the impugned order that the duty, which was paid by the Petitioner, which was otherwise not payable on the exported goods and therefore, rebate of such duty was not admissible in terms of Rule 18 of the Central Excise Rules. However, the duty, which was paid by the Petitioner is held to be treated as voluntary deposit. As per Section 142(3) of the CGST Act every claim for the refund filed by any person before, on or after the appointed day i.e. July 1st, 2017 for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, should be disposed of in accordance with the provisions of existing law and any amount eventually accruing to such person should be paid in cash. We are of the considered opinion that in view of this clear provision, the Respondent ought to have directed the sanctioning Authority to refund the amount of the duty refundable to the Petitioner in cash instead of credit in CENVAT Account.
The Gujarat HC conclusively held that the Respondent ought to have directed the sanctioning Authority to refund the duty of the amount in cash instead of credit in the CENVAT account and for the foregoing reasons, the Petition was allowed to succeed. The impugned order passed by the Respondent in impugned order dated December 27, 2017 was partly modified to the extent that instead of crediting the duty in the CENVAT account of the Petitioner, the sanctioning Authority is directed to refund the amount in cash to the Petitioner.
AAR Holds Development of Plots by Developer in JDA is Taxable under Works Contract Services
Facts M/s Vidit Builders (“the Applicant”) is a partnership firm engaged in the business of real estate as a developer and is developing a colony by executing joint development agreement on March 14, 2019 with the landowner M/s Star Construction. The Applicant will develop and provide common facilities such as construction of concrete roads and compound walls, development of garden, construction of drain and water supply system as well as erection of electric poles & transformers etc. With due permission of the Local Municipal Corporation, the Applicant will sell vacant plots to individual buyers and will not do any construction activity on these plots. No common facilities will be transferred/sold to buyers. After development of all the above-mentioned common facilities; the local municipal corporation will review and provide completion certificate to the developer and the developer will hand over the colony to the municipal corporation for further maintenance.
Issue Whether the activity performed by the Applicant is covered under para 5 of Schedule III of the CGST
Act or classified as Works Contract Services and if covered within the ambit of Works Contract Services,
then, how would valuation be done? Also, if the Residual Rules i.e. Rule 30/31 provided under the CGST
Rules can be considered or not?
Held The Hon’ble Madhya Pradesh Advance Ruling Authority (“MPAAR”) passed the following ruling vide
Order No. 02/2020 dated January 6, 2020:
• The land in question is under the mortgage of SBI, Jabalpur and the permission was taken from
SBI for the development of the land and such permission was provided solely under the
condition that the Applicant would enter into an agreement with the landowner only for the
development of the land thus defining the scope of the work that is to be carried out by the
Applicant. The agreement provides that the Applicant can enter into sale agreements however
this activity is incidental to the main activity of the development of land. The sale is entrusted
to the Applicant only because he has invested huge sums in the development of the land and
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for protecting his financial exposure in the matter. Here it becomes evident that the core
competence of the Applicant is the development of land and not the sale of land. The landowner
remains the landowner till the property is transferred to the purchaser.
• There are many other provisions in the agreement that the Applicant has no right over the land
and consequently, he cannot claim to be engaged in the activity of sale of land as envisaged in
the provisions of entry at serial number 5 of said Schedule III. The provisions of this entry will
apply only to those persons who are owners of the land and not to persons who are incidental
to the sale of the land.
• The revenue sharing portion of the agreement indicates that the Applicant gets an amount on
the sale of each individual plot which shows that there are no fixed earmarked plots to which
the Applicant can claim an entitlement. Further the amount received on sale of the plots is
credited to an escrow account and then only the same is divided. Further, the Applicant is not
the owner of the plots and cannot claim sale of plots as his supply.
• Therefore, the services provided by the Applicant is regarding the development of the site which
includes civil construction and amenities regarding the site in order to make it ready for the
purpose of residence. The services provided by the Applicant are based on an agreement signed
between the landowner & the Applicant which comes under Works Contract.
• The Applicant receives consideration equal to 40% of the value at which each of the plots are
sold. This amount constitutes consideration for services as provided by the Applicant. It is seen
here that the Applicant does not get physical possession of 40% of the plots as understood by
the Applicant. This shows that the consideration that the Applicant receives is in form of money
and not in the form of land. Therefore, in terms of Section 15 of the CGST Act, the Applicant
receives the value of taxable supply made by them.
• Rule 31 of the CGST Rules is applicable in the present case, which provides that where the value
of supply of goods or services or both cannot be determined under Rules 27 to 30, the same
shall be determined using reasonable means consistent with the principles and the general
provisions of Section 15.
• Section 15 of the CGST Act provides that the value of supply of goods or services or both shall
be the transaction value, which is the price actually paid or payable for the said supply where
the supplier and the recipient are not related and the price is the sole consideration. The
Applicant in the present case gets paid for their services only upon the sale of the plots which
enables the landowners not to spend any financial resources to pay the Applicant for their
services. Consideration for a service is the total value that the service provider gets in the deal
and not what the service provider expends for provisioning of the service. The Applicant gets
40% of the amount collected from the plot purchasers and has no right in the title of the land
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and therefore cannot be considered as the seller of the plots so developed. Therefore, the entire
amount received by them is liable to taxed.
The Hon’ble MP AAR conclusively ruled that the activities performed by the Applicant amounts to
supply of services under Works Contract Services wherein Rule 31 of the CGST Rules would be
applicable and the value of supply would be equal to the amount received/receivable by the Applicant
which is equal to 40% of the amount on which the plots are sold.
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Notifications and Circulars, etc.
CBIC extends the due date for Electronic Sealing- Deposit in and removal of goods from Customs Bonded Warehouses
CBIC vide Circular. No. 10/2020 (“Circular”) dated February 7, 2020 has extended the electronic sealing for deposit in and removal of goods from custom bonded warehouse. Later the representations were received from e-seal vendors to defer the implementation of the Circular. In view of the same CBIC vide Circular No. 16/2020- Customs dated March 16, 2020 has deferred the implementation of the Circular till April 30, 2020. The Circular shall be effective from May 1, 2020.
Read more at: http://www.cbic.gov.in/resources/htdocs-cbec/customs/cs-circulars/cs-circulars-2020/Circular-No-16-2020.pdf
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CBIC seeks to exempt Foreign Airlines Company from furnishing Reconciliation Statement i.e. GSTR-9C
On the recommendation of the GST Council CBIC vide Notification No. 09/2020- Central Tax dated March 16, 2020 has notified the class of registered persons who shall not required to furnish Reconciliation Statement in Form GSTR-9C in terms of the CGST Rules, under Section 44(2) of the CGST Act read with Rule 80(3) of the CGST Rules on fulfilling a prescribed condition. The following are the registered person are as under:-
1. The foreign company which is an airlines company covered under the notification issued under Section 381(1) of the Companies Act, 2013 (18 of 2013) and,
2. The foreign company who have furnished the following statement along with the financial statement to the Registrar of Companies (“ROC”) as per sub-rule (2) of Rule 4 of the Companies (Registration of Foreign Companies) Rules, 2014:-
3. A statement of related party transaction. 4. A statement of repatriation of profits. 5. A statement of transfer of funds (including dividends if any) which shall, in relation of any fund transfer
between place of business of foreign company in India and any other related party of the foreign company outside India including its holding, subsidiary and associate company.
Provided that a statement of receipts and payments for the financial year in respect of its Indian Business operations, duly authenticated by a practicing Chartered Accountant in India or a firm or a Limited Liability Partnership of practicing Chartered Accountants in India is submitted for each GSTIN by the September 30 of the year succeeding the financial year.
The Notification can be accessed at: http://www.cbic.gov.in/resources/htdocs-cbec/gst/notfctn-09-central-tax-english-2020.pdf
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CBIC issued clarification in respect of Appeal in regard to Non - Constitution of Appellate Tribunal
Background:
On representation received wherein the issue has been decided against the registered person by the adjudicating authority or refund application has been rejected by the appropriate authority and appeal against the said order is pending before the appellate authority. It has been gathered that the appellate process is being kept pending by several appellate authorities on the grounds that the appellate tribunal has been not constituted and that till such time no remedy is available against their Order-in-Appeal, such appeals cannot be disposed of. Doubts have been raised across the field formations in respect of the appropriate procedure to be followed in absence of appellate tribunal for the appeal to be made under Section 112 of the CGST Act.
On the recommendations of the GST Council, the Government issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 vide Order No. 09/2019 – Central Tax dated December 3, 2019 vide which, it was provided through the said Order that the appeal to Appellate Tribunal can be made within three months (six months in case of appeals by the Government) from the date of communication of order or date on which the President or the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later.
CBIC vide Circular No. 132/2/2020- GST dated March 18, 2020 has clarified that the prescribed time limit to make application to Appellate Tribunal will be counted from the date on which President or the State President enters office.
Read More at: http://www.cbic.gov.in/resources//htdocs-cbec/gst/circular-cgst-132.pdf
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Important Press Release
PIB Issued Statistics on Export of MSME Products up to Dec 2019
As per the information from Directorate General of Commercial Intelligence & Statistics (DGCI&S), the share of export of specified MSME related Products in the All India Exports each of the last 3 years and current year is as follows:
S.No.
Year
Percentage share of MSME products to total export
1. 2019-20 (Upto Dec. 2019) 49.81
2. 2018-19 48.10
3. 2017-18 48.56
4. 2016-17 49.69
In order to support Micro, Small and Medium Enterprises (MSMEs), Government has initiated various schemes for infrastructure development such as Micro & Small Enterprises –Cluster Development Programme (MSE-CDP), Scheme for Promotion of MSMEs in NER & Sikkim, Scheme of Fund for Regeneration of Traditional Industries (SFURTI), Entrepreneurship & Skill Development Programme (ESDP) and upskilling through testing/technology centres, support for tooling/technology services etc.
Government has also taken various initiatives to enhance MSME competitiveness by way of Credit Linked Capital Subsidy, Lean Manufacturing, Design Improvement, Zero Defect Zero Effect Certification, Support for Incubators, Awareness of Intellectual Property Rights & Digital Empowerment of MSMEs, Procurement and Marketing Scheme
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(PMS), A Scheme for Promoting Innovation, Rural Industry and Entrepreneurship (ASPIRE), Credit Guarantee Scheme (CGTMSE), Interest Subvention Scheme for MSMEs etc.
This information was given by Shri Nitin Gadkari, Union Minister for Micro, Small and Medium Enterprises in written reply to a question in Lok Sabha today.
Complete Press Release can be accessed: https://pib.gov.in/PressReleseDetail.aspx?PRID=1607105
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Income Tax
Important Notifications of the week
MOF has issued the Direct Tax Vivad Se Vishwas Rules, 2020
The Ministry of Finance ("MOF") vide Notification No. CG-DL-E-18032020-218778 dated March 18, 2020 has notified The Direct Tax Vivad se Vishwas Scheme Rules, 2020 which shall allow the taxpayers to settle their pending Income Tax Disputes.
The Complete Rules can be read as: http://egazette.nic.in/WriteReadData/2020/218778.pdf
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President gives assent to the Direct Tax Vivad Se Vishwas Act, 2020 on Mar 17, 2020
The Direct Tax Vivad se Vishwas Act, 2020 (“the Act”) received the assent of the President on March 17, 2020 and is published in Gazette today i.e., March 18, 2020.
Under the proposed Income Tax amnesty scheme, a taxpayer would be required to pay only the amount of the disputed taxes and will get complete waiver of interest and penalty provided he pays by March 31, 2020. Those who avail this scheme after March 31, 2020 will have to pay some additional amount. The scheme will remain operative till June 30, 2020.
The Act can be accessed at: http://egazette.nic.in/WriteReadData/2020/218716.pdf
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News Flash
1. CNBC-TV 18: Sources tell that Govt is likely to extend deadline for GSTR-3B filing from March 20,
2020 to March 31, 2020
https://www.a2ztaxcorp.com/cnbc-tv-18-sources-tell-that-govt-is-likely-to-extend-deadline-for-gstr-
3b-filing-from-march-20-2020-to-march-31-2020/
2. CGST Commissioner unearth cases of Fraudulent Passing of ITC worth Rs 1892 Crore
https://www.a2ztaxcorp.com/cgst-commissioner-unearth-cases-of-fraudulent-passing-of-itc-worth-rs-
1892-crore/
3. MCA has issued advisory for Companies & LLPs required to file Web Form CAR affirming readiness
towards COVID-19
https://www.a2ztaxcorp.com/mca-has-issued-advisory-for-companies-llps-required-to-file-web-form-
car-affirming-readiness-towards-covid-19/
4. State makes Aadhaar submission mandatory for GST
https://www.a2ztaxcorp.com/state-makes-aadhaar-submission-mandatory-for-gst/
5. New upgraded IT system for GST by July, e-invoicing to be implemented from Oct 1
https://www.a2ztaxcorp.com/new-upgraded-it-system-for-gst-by-july-e-invoicing-to-be-implemented-
from-oct-1/
6. GST panel to Infosys to fix filing issues by July 31, 2020
https://www.a2ztaxcorp.com/gst-panel-to-infosys-to-fix-filing-issues-by-july-31-2020/
7. CGST Commissionerate, Delhi East, have unravelled an operation involving Fraudulent Availment of
ITC of Rs. 24 Cr
https://www.a2ztaxcorp.com/cgst-commissionerate-delhi-east-have-unravelled-an-operation-
involving-fraudulent-availment-of-itc-of-rs-24-cr/
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Thanks & Best Regards,
Bimal Jain FCA, FCS, LLB, B. Com (Hons) Author of a book on Goods and Services Tax, titled, "GST
Law and Analysis (with conceptual procedures) [5thEdition]
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