I. HIGH COURT
14. 2018
[17] G.S.T.L. 191 (All.) VSL Alloys (India) Pvt. Ltd. vs. State of U.P. and
Ors. Date of Order 13th April, 2018
Mere
non-disclosure of vehicle No. in Part-B of E-way Bill cannot be a ground for
seizure of the goods as well as vehicle.
FACTS
During
the movement of the goods from petitioner’s factory upto the transporter’s
premise for further transportation, the vehicle was intercepted. On perusing
the documents produced, it was found that Part-B of the E-way bill was
incomplete. On finding such irregularity, Order was passed u/s. 129 (1)
detaining the vehicle as well as goods and levying tax liability and penalty.
The Petitioner relying on third proviso of Rule 138(3) of CGST Rules, 2017
contested that the filing of Part B of E-way bill was optional where goods are
transported from place of business of consignor to the place of business of the
transporter for further transportation. The Respondent (Department) though
admitted that all the requisite documents were accompanied the goods when the
vehicle has been intercepted. Aggrieved Petitioner filed writ petition before
the Hon’ble High Court.
HELD
Hon’ble
High Court held that there was no ill intention of the petitioner nor the
petitioner was supposed to fill up Part-B of E-way Bill in light of Rule 138
(3) of CGST Rules, 2017. The order was held illegal and once the Petitioner has
placed the evidence with regard to its claim, it was obligatory on the part of
the Department to consider and pass an appropriate reasoned order. The show
cause notice and impugned seizure order were quashed directing to release goods
as well as vehicle.
15. 2018 (99) Taxmann.Com 218 (Kerala) Saji S vs.
Commissioner, State gst Department (Kerala High Court) Decided on 12th November, 2018
GST
paid under wrong head by mistake can be adjusted with another head
FACTS
The
petitioner purchased goods from Chennai and transported to Kerala. During
transit, for reasons not germane here, the goods were detained by the Assistant
State Tax Officer (‘ASTO’) thereby demanding applicable tax and penalty by way
of notice. The petitioner paid the same on the directions of ASTO.
The
department then denied to release the goods because the payment so made was
remitted under the head ‘SGST’ instead the head ‘IGST’. The petitioner
contended that statue empowers the authorities to transfer the deposit from one
head to another, i.e. from SGST to IGST. The Respondent submitted that the
petitioner could as well pay the amount under ‘IGST’ and them claim a refund of
‘SGST’ because if authorities goes for an adjustment, it will take more than a
couple of months. Hence, the writ.
HELD
The Hon’ble Kerala High Court while
deciding the matter held that the facts are not in dispute. Further, section 77
of GST Act, 2017 provides for the refund of the tax paid mistakenly taken under
one head instead of another. However, Rule 4 of GST Rules, 2017 provides for
adjustments where the amount of refund is completely adjusted against
outstanding demand under the Act and an order giving details of the adjustment
to be issued in Part A of Form GST RFD – 07. Under these circumstances, there
seemed no difficulty for the authorities to transfer the amount from head
‘SGST’ to ‘IGST’. It may, as the Respondent has submitted, take some time, but
it was inequitable for the authorities to let the Petitioner suffer. Hence, the Hon’ble Court directed Respondent
to release the goods along with vehicle and, then ensure that the tax and
penalty are accordingly transferred from the head ‘SGST’ to ‘IGST’. The writ
petition was accordingly disposed.
16. [2018-TIOL-176-HC-MUM-GST] A-1 Cuisines Pvt.
Ltd vs. Union of India dated 28th
November, 2018
Shops
located at a domestic Airport or Domestic Security hold area, which are
beforeeven the immigration clearance where the transaction cannot be said to have
taken place in any area beyond the customs frontiers of India or outside India
cannot be considered as a non-taxable supply
FACTS
The Present petition seeks direction to the respondents to
exempt the applicable taxes on sale of cosmetic products, perfumes etc. to the
International passengers and claim refund of any input tax paid on input
supplies and input services from the retail shop which the petitioner intends
to set up at the Domestic Security in the International Airport. It was
submitted that sale of similar products to international passengers are
permitted without levy of Customs duty and applicable taxes under the
CGST/IGST/SGST from the duty free shops located in the arrival and departure
halls of International Airports in India.
HELD
The Court noted that exemption is applicable only in respect
of supplies to or from the duty free shops situated after the passenger crosses
the immigration counter beyond the Customs frontiers, at arrival or departure
hall of International Airport terminals, where the transaction would be said to
have taken place outside India as the same would be a “non-taxable”
supply u/s. 2(78) of the Act and such duty free shops located at the
International Airports would be in “non-taxable” territory as defined
in section 2(79) of the Act. However, to shops located at a domestic Airport or
Domestic Security hold area, which are before even the immigration clearance by
a passenger, where the transaction cannot be said to have taken place in any
area beyond the customs frontiers of India or outside India, no exemption can
apply. It was also noted that a passenger travelling on a domestic flight from
Nagpur may or may not travel abroad and the Customs Authorities would not be
able to have effective check and control to verify whether the goods purchased
from Domestic Airport at Nagpur are actually taken abroad by the passenger.
Accordingly, the petition is dismissed.
II. AUTHORITY OF ADVANCE RULING (AAR)
17. [2018-TIOL-290-AAR-GST] NForce Infrastructure
India Pvt. Ltd dated 28th
November, 2018
Construction
service of building/civil structure to supplier of development rights (the land
owner) against consideration in the form of transfer of development rights is
liable for GST.
FACTS
Applicant
entered into an agreement for construction and to hand over residential
apartment area, and 8 car parkings on the land belonging to the six persons.
Project was completed post 01.07.2017. Advance ruling was sought on the
question as to whether they were liable to pay GST on the value of building
constructed and handed over to the land owner in terms of the Joint Development
Agreement since there is no monetary consideration involved. Further, whether
the applicant is liable to pay service tax up to 30.06.2017 and GST thereafter.
HELD
The authority noted that the Applicant supplied
construction service of building/civil structure to supplier of development
rights (the land owner) against consideration in the form of transfer of
development rights. Supplier of construction service to the supplier of
development rights is liable to pay GST for the service provided in terms of
notification 4/2018-Central Tax (Rate). Further, value is to be determined in
terms of para 2 of notification 11/2017-Central Tax (Rate). Insofar as
liability to pay service tax up to 30.06.2017 is concerned, it is clearly
evident from section 142(11)(b) that the service tax is liable to be paid,
which is liable under the Finance Act, 1994, on the services provided up to
30.06.2017 and on the services provided after 01.07.2017, GST is liable to be
paid.
18. [2018-TIOL-286-AAR-GST] Ina Bearing India
Pvt. Ltd dated 9th July, 2018
Sale of goods which are located outside India is not
liable to tax in India u/s. 7(5)(a) of the IGST Act, 2017
FACTS
Sale
of goods which are located outside India to a place outside India i.e. out and
out sale, is a transaction not liable for GST.
HELD
The
Authority held that in case of goods supplied on out and out basis, there is no
levy till the time of their customs clearance in compliance with section 12 of
the Customs Act and section 3 of the
Customs Tariff Act. Imported goods sold from and to a non-taxable territory,
though they are clearly in the nature of inter-state supply would come in the category of ‘exempt
supply’ as no duty is leviable on them except in accordance with proviso to
section 5(1) of the IGST Act. It was further noted that the legal position is
reiterated and confirmed by CBIC Circular 3/1/2018-IGST dated 25.05.2018. Thus
Sale of goods which are located outside India is not liable to tax in India u/s. 7(5)(a) of the IGST Act,
2017.
