Staying Updated Indirect tax newsletter January 2018, Volume 20 Issue 02 In the issue GST In the issue GST Central excise Service tax VAT/Sales tax/Entry tax Contacts Notifications and circulars Notifications issued by Central Government • The rate of tax for manufacturers opting for composition scheme has been reduced to 1% of the turnover from 2% earlier. Further, the turnover, on which the composition amount is payable by traders, has been amended from the entire turnover in a State earlier to the turnover of taxable supply of goods now. • Due date for filing return in Form GSTR 3B for the month of December, 2017 has been extended to 22 January, 2018. • The Central GST (CGST) Rules are amended. Majority of the amendments pertain to rules relating to valuation, method to compute reversal of common credits, e-way bills, refunds etc. • Due date for filing return in Form GSTR 6, for input service distributor, for the months of July, 2017 to February, 2018 has been extended to 31 March, 2018. • The portal “www.ewaybillgst.gov.in” is notified as the Common Goods and Services Tax Electronic Portal for furnishing electronic way bill instead of previously notified portal “www.gst.gov.in” with effect from 16 January, 2018. • The GST rates on various goods and services have been amended, to give effect to the decisions of the GST Council. • GST has been exempted on specific goods and services, to give effect to the decisions of the GST Council. • Amendments have been made to the list of services, where GST is payable under reverse charge basis, to give effect to the decisions of the GST Council. • GST has been partly exempted on sale of second hand motor vehicles, subject to fulfilment of conditions mentioned in the notification. GST In the issue GST Central excise Service tax Notifications and circulars • Integrated GST (IGST) has been exempted under the IGST Act on the royalties and license fees included in the valuation of imported goods, to the extent of payment of IGST, under • section 3(7) of the Customs Tariff Act. • VAT/Sales tax/Entry tax Contacts • Compensation cess has been exempted on sale of all old and used motor vehicles, provided no CGST credit, CENVAT credit, value added tax (VAT) credit or any other credit paid • on such motor vehicles is availed. Circulars issued by Central Government • Clarifications issued with respect to accommodation services, • homestays provided through E-commerce operators, legal services etc. • Catering service in mess provided by an educational institute to its students, faculty and staff, where the institute is • covered under notification 12/2017-Central Tax (Rate) is exempt from tax. • It is clarified that only goods classified under chapter 86, supplied to the railways, will be subject to GST @ 5% with no • refund of unutilised input tax credit. Central excise The Uttarakhand High Court disallowed utilisation of basic excise duty credit towards payment of NCCD and Education Cesses to motor cycle manufacturers availing area-based exemption under Notification No. 50/2003-CE. CENVAT credit of service tax paid on construction of canteen, storing shed and rest shed within the factory premises shall be available as the same were required to be provided by the manufacturer for the welfare of employees. CENVAT credit of service tax paid on construction of compound wall, rest rooms and dormitory rooms for staff shall be available to the assessee. CENVAT credit cannot be denied merely because the name of supplier/ manufacturer was mentioned wrongly by registered dealer against which invoices were issued as the assessee has received the goods and paid the duty thereon. The assessee engaged in manufacture of aerated water, fruit juice and fruit pulp-based drinks shall be eligible to avail CENVAT credit on outdoor catering services availed in assessee’s factory for providing food to employees. No demand of interest and imposition of penalty can be made unless there is a determination of duty under section 11A of the Central Excise Act. Service Tax Case laws • The value of bought out items cannot be added to the Case laws assessable value of Acetylene Gas Calendar as such items are • No service tax shall be payable on turnover charges supplied at the site where the plant (Acetylene Plant) is mandated by the stock exchanges when collected from clients erected. on actual basis and remitted to stock exchanges without any • The Supreme Court allowed transfer of unutilised credit deduction or retention by the appellant. under Rule 10 of the CENVAT Credit rules upon shifting of assessee’s factory from one site to another. 2 January 2018 - Volume 20 Issue 02 Service Tax Case laws In the issue GST Central excise Service tax VAT/Sales tax/Entry tax Contacts • The assessee engaged in the business of Electronic Recharge Coupons (ERCs) and collection of payment of • The extended period has been rightly invoked where the assessee did not disclose the information regarding post paid bills for various telecommunication operators receipt of input service prior to 01 March 2006 when is not providing marketing services to telecom the final product in question was exempted and availed operators and that when the telecom operators paid it in the return for the month when the product has service tax on full MRP of ERCs, there is no liability of become dutiable. service tax on the assessee who is involved in sale of such ERCs/ SIM Cards. • Reduction of penalty to the extent of 25% of wrongly utilised CENVAT Credit is not sustainable in law as the • Consideration received under a non-compete assessee has deliberately utilised CENVAT credit for agreement as not liable to payment of service tax prior payment of GTA services as service recipient inspite of to July, 2012. knowledge on its part that the same is not permissible • Benefit of export where FIRC mentions receipt of under law. remittances in INR as settlement of cross country VAT/ Sales Tax/ Entry Tax payments through nostro mechanism qualifies as receipt of consideration in convertible foreign exchange Case Laws in terms of the foreign exchange manual of the CBI. • VAT is not leviable on mobile phone chargers sold in composite retail packages along with mobile phones • CENVAT credit of service tax payable in respect of under U.P. VAT. coaching and training services shall be available even where the same was rendered for contract employees of • The claim of deduction/ set off of ITC against output the assessee. tax liability cannot be restricted/ denied merely • Services relating to corporate restructuring do not qualify as an input service as the same are not specifically covered under any of the heads of input services as defined in rule 2(l) of the CENVAT Credit Rules (CCR), 2004. • Once a service is not covered due to exclusion for the purposes of CENVAT credit, the same is not rendered as admissible for the purpose of CENVAT credit irrespective of the fact that the cost of services has been taken as expenditure in the books of account. 3 • Expenses towards maintenance of building form part of rent agreement and there is nexus between the input service and the services exported. because such claim is made in respect of sale invoices not pertaining to the same tax period. • The Supreme Court upheld the second proviso to section 3(2) of Bihar Entry Tax Act granting set-off of entry tax paid by the importer on goods entering the local area against VAT payment as not being ultra vires of the Indian Constitution. January 2018 - Volume 20 Issue 02 GST In the issue GST Central excise Service tax VAT/Sales tax/Entry tax Contacts 4 • Notifications and circulars Notifications issued by Central Government • The rate of tax for manufacturers opting for composition scheme has been reduced to 1% of the turnover from 2% • earlier. Further, the turnover, on which the composition amount is payable by traders, has been amended from the entire turnover in a State earlier to the turnover of taxable supply of goods now. (Notification No. 1/2018-Central Tax dated 01 January, • 2018) • Due date for filing return in Form GSTR 3B for the month of December, 2017 has been extended to 22 January, 2018. (Notification No. 2/2018-Central Tax dated 20 January, 2018) • The CGST Rules are amended. Majority of the amendments • pertain to rules relating to valuation, method to compute reversal of common credits, e-way bills, refunds etc. (Notification No. 3/2018-Central Tax dated 23 January, 2018) • Late fees for delayed submission of Form GSTR 1 has been reduced to INR 25 per day (INR 10 per day where there are • no outward supplies). (Notification No. 4/2018-Central Tax dated 23 January, 2018) • Late fees for delayed submission of Form GSTR 5 has been • reduced to INR 25 per day (INR 10 per day where there is nil central tax liability). (Notification No. 5/2018-Central Tax dated 23 January, 2018) • Late fees for delayed submission of Form GSTR 5A has been reduced to INR 25 per day (INR 10 per day where there is nil integrated tax liability). (Notification No. 6/2018-Central Tax dated 23 January, 2018) Late fees for delayed submission of Form GSTR 6 has been reduced to INR 25 per day. (Notification No. 7/2018-Central Tax dated 23 January, 2018) Due date for filing return in Form GSTR 6, for input service distributor, for the months of July, 2017 to February, 2018 has been extended to 31 March, 2018. (Notification No. 8/2018-Central Tax dated 23 January, 2018) The portal “www.ewaybillgst.gov.in” is notified as the Common Goods and Services Tax Electronic Portal for furnishing electronic way bill instead of previously notified portal “www.gst.gov.in” with effect from 16 January, 2018. (Notification No. 9/2018-Central Tax dated 23 January, 2018) The officers appointed under State GST Act, 2017 or the Union Territory GST Act, 2017 are empowered to grant refund of IGST paid on exports of services. (Notification No. 10/2018-Central Tax dated 23 January, 2018) The GST rates on various services have been amended, to give effect to the decisions of the GST Council. (Notification No. 1/2018-Central Tax (Rate) dated 25 January, 2018) GST has been exempted on specific services, to give effect to the decisions of the GST Council. (Notification No. 2/2018-Central Tax (Rate) dated 25 January, 2018) January 2018 - Volume 20 Issue 02 GST In the issue GST Central excise Service tax VAT/Sales tax/Entry tax Contacts 5 Notifications and circulars • Amendments have been made to the list of services, where • GST is payable under reverse charge basis, to give effect to the decisions of the GST Council. (Notification No. 3/2018-Central Tax (Rate) dated 25 January, 2018) • Tax liability in case of grant of development rights in lieu of • construction service (wholly or partly) and construction services provided in lieu of transfer of development rights will be payable only at the time of transfer of possession or right in the constructed complex, building or civil structure to the person granting development rights by entering in a conveyance deed or issue of allotment letter etc. (Notification No. 4/2018-Central Tax (Rate) dated 25 January, 2018) • The services of grant of license or lease to explore or mine petroleum crude or natural gas or both, is exempted from tax to the extent consideration is paid to the Central Government in form of Central Government’s share of profit petroleum as defined in the contract entered into by the Central Government on this behalf. (Notification No. 5/2018-Central Tax (Rate) dated 25 January, 2018) • The GST rates on various goods have been amended, to give effect to the decisions of the GST Council. (Notification No. 6/2018-Central Tax (Rate) dated 25 January, 2018) • The exemption from GST on various goods have been amended, to give effect to the decisions of the GST Council. (Notification No. 7/2018-Central Tax (Rate) dated 25 January, 2018) • GST has been partly exempted on sale of second hand motor vehicles, subject to fulfilment of conditions mentioned in the notification. (Notification No. 8/2018-Central Tax (Rate) dated 25 January, 2018) IGST has been exempted under the IGST Act on the royalties and license fees included in the valuation of imported goods, to the extent of payment of IGST, under section 3(7) of the Customs Tariff Act. (Notification No. 6/2018-Integrated Tax (Rate) dated 25 January, 2018) Compensation cess has been exempted on sale of all old and used motor vehicles, provided no CGST credit, CENVAT credit, VAT credit or any other credit paid on such motor vehicles is availed. (Notification No. 1/2018-Compensation Cess (Rate) dated 25 January, 2018) January 2018 - Volume 20 Issue 02 GST In the issue GST Notifications and circulars Circulars issued by Central Government • Central excise Service tax The Government has issued clarifications with respect to accommodation services, homestays provided through Ecommerce operators, legal services etc. Some of the important clarifications are as under: • It is clarified that only goods classified under chapter 86, supplied to the railways, will be subject to GST @ 5% with no refund of unutilised input tax credit and other goods [falling in any other chapter], will be subject to the general applicable GST rates on such goods, even if supplied to the railways. [Circular no. 30/04/2018-GST dated 25 January, 2018] – GST is payable on actual value charged irrespective of the declared/ published tariff value and tariff value is relevant only to determine the rate of tax. VAT/Sales tax/Entry tax Contacts – GST will be payable @ 28% on the entry to casinos as well as on the total bet value in the casino. – The price/ declared tariff for determination of tax rate for admission to cinema and accommodation in hotels etc. will not include taxes. – GST will be payable under reverse charge by the recipient in case of legal services, including representational services provided by an advocate, including a senior advocate, to a business entity. [Circular no. 27/01/2018-GST dated 04 January, 2018] 6 • Catering service in a mess provided by an educational institute to its students, faculty and staff, where the institute is covered under notification 12/2017-Central Tax (Rate) is exempt from tax. Such services are provided by anyone other than the educational institute will be subject to GST at 5% without input tax credit, effective from 15 November 2017. [Circular no. 28/02/2018-GST dated 08 January, 2018] • GST on LPG and Polybutylene feedstock supplied by the refineries for manufacture of Propylene or Di-butyl para Cresol and Poly Iso Butylene would be levied only on the net quantity retained by the manufacturers of such goods and not on the entire quantity delivered through the pipeline. [Circular no. 29/03/2018-GST dated 25 January, 2018] January 2018 - Volume 20 Issue 02 Central excise Service tax Case laws • In Sanghi Organisation v. CCE (2018-TIOL-197-CESTAT• MUM), the Mumbai Tribunal held that value of bought out items could not be added to the assessable value of Acetylene Gas Calendar as such items are supplied at the site where the plant (Acetylene Plant) is erected following the decision of the Tribunal in the assessee’s own case. VAT/Sales tax/Entry tax • In the issue GST Central excise In Bannari Amman Sugars Limited v. CCE (2018-TIOL-157CESTAT-MAD) , the Chennai Tribunal held that CENVAT credit of service tax paid on construction of canteen, storing shed and rest shed within the factory premises shall be available as the same were required to be provided by the manufacturer for the welfare of employees. In CCE v. Featherlite Products Private Limited (TS-5-SC• 2018-SC), the Supreme Court dismissed the SLP of the revenue and refused to interfere with the Madras High Court order allowing transfer of unutilised credit under Rule 10 of the CENVAT Credit rules upon shifting of assessee’s factory from one site to another. • In Hero Motorcorp Limited v. CCE (TS-11-HC-2018 (UTTEXC), the Uttarakhand High Court had disallowed utilisation of basic excise duty credit towards payment of NCCD and Education Cesses to motor cycle manufacturers availing areabased exemption under Notification No. 50/2003-CE. In Bajaj Hindusthan Limited v. CCE (2018-TIOL-265CESTAT-ALL), the Allahabad Tribunal held that CENVAT credit of service tax paid on construction of compound wall, rest rooms and dormitory rooms for staff shall be available to the assessee. • In Rathi Dye Chem Private Limited v. CCE (2018-TIOL• 237-CESTAT-MUM), the Mumbai Tribunal held that CENVAT credit shall be admissible in respect of group insurance services, courier services and air travel services as the same are necessary for the assessee to conduct its manufacturing and business activity. In Hindustan Coca-Cola Beverages Limited v. CCE (2018TIOL-195-CESTAT-DEL), the Delhi Tribunal held that assessee engaged in manufacture of aerated water, fruit juice and fruit pulp-based drinks shall be eligible to avail CENVAT credit on outdoor catering services availed in assessee’s factory for providing food to employees. • In JSW Steel Coated Products’ Limited v. CCE (2018-TIOL- • 300-CESTAT-MUM), the Mumbai Tribunal held that the credit has been rightly denied by lower authorities to the assessee who has admittedly availed consulting engineering services for construction purposes and not renovation/ repair purposes as the expression “insofar as they are used for” in rule 2(l) of the CCR, 2004 read section 66E of the FA, 1994 makes it clear that the exclusion under the said rule is not restricted only to works contract service or construction In SGS India Private Limited v. Union of India & Ors. (W.P (C) 634/2018), the Delhi High Court, in an interim order, suspended the demand notice issued by DGFT officers seeking recovery of sanctioned SFIS benefits under relevant FTP during the period between 2003 to 2014. The matter is listed for further hearing on 09 April, 2018. Contacts • 7 service but relates to services which are used for execution for civil construction. In Rathi Steel and Power Limited v. CCE & ST (2018-TIOL155-CESTAT-ALL), the Allahabad Tribunal held that CENVAT credit could not be denied merely because the name of supplier/ manufacturer was mentioned wrongly by registered dealer against which invoices were issued as the assessee had received the goods and paid the duty thereon. January 2018 - Volume 20 Issue 02 Central excise VAT/Sales tax/Entry tax Case laws • In Ciron Drugs and Pharmaceuticals Private Limited v. CCE (2018-TIOL-281-CESTAT-MUM), the Mumbai Tribunal held that no demand of interest and imposition of penalty could be made unless there was a determination of duty under section 11A of the Central Excise Act and since there was no demand of duty and determination under section 11A in the instant case, the demand of interest and penalty could not be sustained. Contacts • In Nocil Limited v. CCE (2018-TIOL-196-CESTAT-MUM), the Mumbai Tribunal set aside the imposition of penalty where penalty was imposed on the assessee in respect of wrongful credit availed by it as the same was voluntarily reversed by the assessee on being pointed out by the CERA. • In Godrej and Boyce Mfg Co. Limited v. CCE (2018-TIOL288-CESTAT-MUM), the Mumbai Tribunal upheld the levy of penalty on the assessee who knowingly claimed the wrong exemption and was very much aware about the legality of the issue. In the issue GST Central excise Service tax 8 January 2018 - Volume 20 Issue 02 Service Tax In the issue GST Case laws • Central excise Service tax VAT/Sales tax/Entry tax • Contacts • • 9 • In Anant Commodities v. CCE (2018-TIOL-154-CESTATDEL), the Mumbai Tribunal held that no service tax shall be payable on turnover charges mandated by the stock exchanges when collected from clients on actual basis and • remitted to stock exchanges without any deduction or retention by the appellant. In CCT v. Oxigen Services India Private Limited (2018-TIOL185-CESTAT-DEL), the Delhi Tribunal held that assessee engaged in the business of Electronic Recharge Coupons • (ERCs) and collection of payment of post paid bills for various telecommunication operators is not providing marketing services to telecom operators and that when the telecom operators paid service tax on full MRP of ERCs, there is no liability of service tax on the assessee who is involved in sale of such ERCs/ SIM Cards. In Ashwini Kumar Bajaj and Others (TS-16-CESTAT-2018ST), the Chandigarh Tribunal held that consideration • received under a non-compete agreement as not liable to payment of service tax prior to July, 2012 by observing, inter alia, that it was only w.e.f. 01 July, 2012 that section 66(e) was inserted. In BBC World Services India Private v. CCE & ST, Delhi (TS415-CESTAT-2017-ST), the Delhi Tribunal held that benefit of export where FIRC mentions receipt of remittances in INR • as settlement of cross country payments through nostro mechanism qualifies as receipt of consideration in convertible foreign exchange in terms of the foreign exchange manual of the CBI. In Beekay Engineering Corporation v. CCE (2018-TIOL-292CESTAT-DEL), the Delhi Tribunal held the assessee shall be eligible for abatement under Notification No.01/2006-ST although it initially availed CENVAT credit as it subsequently reversed the credit it availed and the same would be tantamount to non-availment of credit. In EI Dupont India v. CCE & ST (2018-TIOL-226-CESTATAHM), the Ahmedabad Tribunal held that CENVAT credit of service tax payable in respect of coaching and training services shall be available to the assessee even where the same was rendered for contract employees of the assessee. In SH Kelkar and Company Limited v. CCE (2018-TIOL-219CESTAT-MUM), the Mumbai Tribunal held that services relating to corporate restructuring do not qualify as an input service as the same are not specifically covered under any of the heads of input services as defined in rule 2(l) of the CCR, 2004 and the assertion of the assessee that the services would be covered under legal, accounting and financing services has no merit. In Empire Industries Limited v. CCE (2018-TIOL-228CESTAT-MUM), the Mumbai Tribunal held that once a service is not covered due to exclusion for the purposes of CENVAT credit, the same is not rendered as admissible for the purpose of CENVAT credit irrespective of the fact that the cost of services has been taken as expenditure in the books of account. In Global E-Business Operations Private Limited v. CCE, C & ST (2018-TIOL-152-CESTAT-BANG), the Bangalore Tribunal held that expenses towards maintenance of building form part of rent agreement and that there is nexus between the input service and the services exported and allowed refund claims of unutilised credit filed by assessee. January 2018 - Volume 20 Issue 02 Case laws In the issue • In U.P Asbestos Limited v. CCE (2018-TIOL-210-CESTATMUM), the Mumbai Tribunal held that the extended period has been rightly invoked where the assessee did not disclose the information regarding receipt of input service prior to 01 March 2006 when the final product in the question was exempted and availed it in the return for the month when the product has become dutiable. • In Indian Chemicals and Minerals v. CCE, (2018-TIOL-143CESTAT-Mad), the Madras Tribunal had waived penalties levied under sections 76 and 78 of the Finance Act, 1994 as there was much doubt regarding the definition of GTA during the relevant period and the assessee had put forward reasonable cause for non-payment of service tax. • In CCE, C & ST v. Gujarat Nre Coke Limited (2018-TIOL-161CESTAT-BANG), the Bangalore Tribunal held that reduction of penalty to the extent of 25% of wrongly utilised CENVAT Credit is not sustainable in law as the assessee had deliberately utilised CENVAT credit for payment of GTA services as service recipient inspite of knowledge on its part that the same is not permissible under law. • In Sheladia Associates Limited v. CCE (2018-TIOL-184CESTAT-MAD), the Chennai Tribunal waived imposition of penalties under sections 76 and 78 where the assessee paid the duty demanded with interest and contested the imposition of penalty on the ground that it entertained a bona fide belief that service tax was only payable on the net amount received and not the entire amount including the withholding tax amount. • In Prathamesh Developers Promoters & Builders v. CST (2018-TIOL-236-CESTAT-MUM), the Mumbai Tribunal held that the amount paid under the VCES scheme declared by the Finance Act, 2013 is not refundable in view of provisions of section 109 of the Finance Act, 2013 and that appeals against GST Central excise Service tax VAT/Sales tax/Entry tax Contacts 10 such dispute are maintainable before a Tribunal. January 2018 - Volume 20 Issue 02 VAT/Sales Tax/Entry Tax In the issue Case Laws • In Samsung (India) Electronics Private Limited v. CCT (TS12-HC-2018 (All)-VAT), the Allahabad High Court held that VAT is not leviable on mobile phone chargers sold in composite retail packages along with mobile phones under U.P. VAT and distinguished the Supreme Court’s decision in the case of Nokia India. • In CCT v. Arise India Limited (TS-2-SC-2018-VAT), the Supreme Court refused to interfere with the order of the Delhi High Court which held that section 9(2)(g) of the Delhi VAT Act to the extent it disallows ITC due to default of selling dealer in depositing tax as violative of Articles 14 and 19(1)(g) of the Constitution of India. • In Kirloskar Electric Co. Limited v. the State of Karnataka (TS-9-HC-2018 (KAR)-VAT, the Karnataka High Court held that the claim of deduction/ set off of ITC against output tax liability could not be restricted/ denied merely because such claim is made in respect of sale invoices not pertaining to the same tax period. • In Indian Oil Corporation Limited v. State of Bihar and Anr. (TS-347-SC-2017-VAT), the Supreme Court upheld the second proviso to section 3(2) of Bihar Entry Tax Act granting set-off of entry tax paid by the importer on goods entering the local area against VAT payment as not being ultra vires of the Indian Constitution. • In Vijay Shankar Prasad v. the State of Bihar (TS-417-HC2017 (PAT)-VAT, the Patna High Court upheld criminal prosecution launched under various sections of Indian Penal Code for commission of forgery and cheating by furnishing invalid and false TIN number of the purchaser despite pendency of proceedings under Bihar VAT Act, 2005 by dismissing the plea of double jeopardy taken by the assessee. GST Central excise Service tax VAT/Sales tax/Entry tax Contacts 11 January 2018 - Volume 20 Issue 02 Contacts In the issue GST Central excise Service tax VAT/Sales tax/Entry tax Contacts Delhi Pratik Jain/ Gautam Khattar/ Rahul Shukla Ph: +91 (124) 3306000 Hyderabad Ananthanarayanan S Ph: +91 (40) 4424 6363 Mumbai Dharmesh Panchal Ph: +91 (22) 6689 1000 Chennai N Madhan Ph: +91 (44) 4228 5000 Kolkata Pratik Jain/ Gopal Agarwal Ph: +91 (33) 4404 3098/4404 6000 Pune Nitin Vijaivergia Ph: +91 (20) 4100 4444 Bangalore Pramod Banthia/ Kunal Wadhwa Ph: +91 (80) 4079 6000 Ahmedabad Jatin Arora Ph: +91 (22) 6689 1000 About PwC At PwC, our purpose is to build trust in society and solve important problems. We’re a network of firms in 157 countries with more than 208,000 people who are committed to delivering quality in assurance, advisory and tax services. Find out more and tell us what matters to you by visiting us at www.pwc.com . 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