I High Court:
3. 2018 (12) GSTL 5 (ALL.) Vikram Solar PVT.LTD
vs. Union of India dated 4th January, 2018
Goods and conveyance seized due to failure of downloading E-way
Bill, released subject to deposit of bank guarantee.
Facts:
Petitioner carried goods from West
Bengal to Ghaziabad. The goods were seized by the department on the grounds
that E-way Bill had not been downloaded. Petitioner preferred a writ petition
to challenge the seizure order passed u/s. 129(1) of UPGST Act as well as the
consequential notice passed u/s. 129(3) of the said Act.
Held
The Hon’ble High Court held that
upon proof that there was some problem in downloading the E-way Bill and
subject to deposit of bank guarantee, equal to the value of the tax payable on
goods, the seized goods and conveyance is liable to release.
4. 2018 (12) GSTL 9 (ALL.) Pragati Enterprises
vs. State of Uttar Pradesh dated 12th January, 2018
Provisional release of goods and vehicle upon payment of security
deposit, where goods were seized due to wrong declaration of date on E-way
Bill, though inadvertently.
Facts
The goods and vehicle of the
Petitioner were seized on the grounds of wrong declaration of the date on the
E-way Bill. Petitioner approached the High Court for annulment of the seizure
order stating that such wrong declaration was done inadvertently. The penalty
order had not been passed though.
Held
The Hon’ble High Court ordered
provisional release of the goods and vehicle subject to deposit of security
other than cash or bank guarantee, equal to the amount of the tax payable on
goods.
5. [2018-TIOL-138-HC-Orissa-GST]
Shree Subham Garments vs. UOI dated 13th August, 2018
In the event any dealer faces any problem in uploading data,
alternate mechanism for filing manual returns or assistance in uploading
necessary information at their respective offices should be provided.
Facts
In the present writ application,
the petitioner has sought to challenge the order dated 07.06.2018 under
Annexure-3 canceling the provisional registration granted under the G.S.T. Act.
It is asserted that in spite of all attempts made to upload the necessary
information on the website of the GST Portal and on failure of achieving such
object, the dealers have also been forced to manually comply by submitting
copies thereof before various authorities but it appears that such authority
showed their helpless in this regard and stated that they cannot accept such
manual compliance. Consequently, registrations in several matters have been
cancelled.
Held
The Court held that although under
the GST regime all applications required to be done online in the event any
dealer faces any problem in uploading such data the Commissioner ought to place
alternative authority with the Sales Tax Officer or appropriate officer before
whom manual returns can be filed and/or the dealers be assisted in uploading
the necessary information at their respective offices. The Officer cannot throw
their hands in desperation and blame the computer or the failure of uploading
and consequently lead to cancellation of registration. This is neither in the
interest of the State nor of the dealer. The petitioner is directed to extend
all necessary co-operation as may be required by the department with regard to
migration process.
6. 2018 (14) GSTL 338 (All.) M.K. Enterprises
vs. State of U.P. dated 1st
January, 2017.
Order of seizure of goods not sustainable as assesse did not have
opportunity to explain discrepancy in tax invoice.
Facts
At the time of transportation of
goods of petitioner from Delhi to Dumka, Jharkhand, the vehicle was intercepted
and detained. The reason for detention given by authorities was that there was
no Transit Declaration Form (TDF). Against which the petitioner filed reply and
along with it annexed copy of its invoice and other documents. The authority
compared the IGST and compensation cess paid as disclosed in the tax invoice of
the petitioner and found discrepancy in the particulars. Upon finding of such
discrepancy authority passed the seizing order without issuing any other or
proper notice, alleging evasion on part of the petitioner and confirmed
penalty.
Aggrieved petitioner approached
theHigh Court invoking writ jurisdiction contesting that the seizure was made ex-parte
through the movement of goods from Delhi to Jharkhand was otherwise established
on record and the goods could not have been detained or seized merely because
the TDF was not found.
Held
The Hon’ble High Court setting
aside the detention order held that the petitioners were not given any
opportunity to explain its conduct with respect to discrepancy in the tax
invoice alleged in the seized order. The High Court by remitting the matter,
directed the petitioner to treat the seizure order as show cause notice in
respect of the charge levelled against it and furnish reply before the
respondent. After which the respondent shall pass order in accordance with the
law.
II.
Authority for Advance Ruling
7. [2018-TIOL-100-AAR-GST] Loyalty Solutions and
Research Pvt. Ltd dated 11th April, 2018.
Forfeiture of value of points not redeemed by the customer within
the due date is a supply of service liable for GST.
Facts
The applicant registered in the
State of Haryana, under a reward point based loyalty programme, is providing
certain services to its clients based on issuance of reward points also known
as pay back points by the applicant to the end customers. For managing the
loyalty programme, applicant is getting a management fee. The question before
the authority is whether this amount of issuance fee retained/forfeited would
amount to consideration for actionable claims and be subject to GST.
Held
The value of points forfeited on
which money had been paid by the issuer on account of failure of the end
customer to redeem the points within the validity period would be considered as
a consideration in lieu of service. The transaction would be outside the scope
of being considered as an actionable claim and therefore is a supply of service
liable for GST.
8. [2018-TIOL-98-AAR-GST]
MERIT
HOSPITALITY SERVICES PVT. LTD dated
5th May, 2018
A mere supply of food or service and distribution of food does not
qualify as a canteen activity.
Facts
The Applicant is registered in the
State of Maharashtra and provides outdoor catering services to employees of
various companies. In the first scenario the food items are provided as per
contract wherein the menu is pre-decided for which monthly billing is done. In
the second scenario food is supplied and served to the recipients where a
separate bill is raised for service of food. The question before the authority
is whether both the activities qualify as canteen service and the applicable
rates. In the third situation, food is supplied to an association of employees,
which operates a canteen, and fourthly food is supplied directly to a company
located in a SEZ.
Held
The authority held that a simple
supply of food to a company on a contractual basis is not canteen activity and
so will not attract 5% GST. Further, the service and distribution of food does
not qualify as canteen activity, hence 5% GST will again not be attracted. The
third case will also not tantamount to canteen activity. In the last case, it
can neither claim to be operating a canteen in the area nor can it claim to run
a restaurant in the said area on which 5% GST is applicable.
9. [2018-TIOL-97-AAR-GST] Habufa Meubelen BV
dated 16th June, 2018
If the liaison office does not render any consultancy or other
services and does not have any commitment powers, reimbursements and salaries
paid to such office will not attract GST.
Facts
Applicant, registered in the State
of Rajasthan is an Indian branch of a firm located in Netherlands. The question
before the authority is whether reimbursement and salary paid to liaison office
in India would attract GST as supply of service, given that no consideration is
charged or paid. If yes, the authority is also required to determine the place
of supply.
Held
If the liaison office in India did
not render any consultancy or other services directly or indirectly and the
liaison office does not have any commitment powers except those required for
normal functioning, then the reimbursement and salary to liaison office in
India will not attract GST.
10. [2018-TIOL-192-AAR-GST] PPD Living Spaces
Pvt. Ltd dated 26th September, 2018.
The Input Tax credit availed in respect of the GST paid on goods
and/or services used/consumed for the development of the land in respect of the
plots sold after issuance of Completion Certificate is liable to be reversed on
pro rata basis.
Facts
As per paragraph 5 of the Schedule
III of the CGST Act, sale of land and, subject to clause (b) of Paragraph 5 of
Schedule II, sale of building shall be treated neither as a supply of goods nor
as a supply of service. In the instant case, the completion certificate in
respect of the project has been issued on 31.05.2018 and the proposed
transaction is in respect of sale of developed plots/land with civil structures
after issuance of Completion Certificate. The question before the authority is
whether it is correct to structure the agreement by fixing the land cost by
absorbing the development charges and whether ITC availed has to be paid back
on pro rata basis, on plots sold after completion.
Held
The
authority held that it is lawful to structure agreement by fixing the land cost
after absorbing the development charges. Further the Input Tax credit availed
in respect of the GST paid on goods and/or services used/consumed for the
development of the land, in respect of the plots sold after issuance of Completion
Certificate is liable to be reversed on pro rata basis.
