ADVANCE AUTHORITY RULINGS
Mere capability of removal and reuse elsewhere does not mean blocks are not permanently embedded to earth and hence can be used as moveable property with eligibility of credit.
Applicant contention, that laying of paver blocks on land does not amount to construction of immoveable property u/s 17(5) of the CGST Act, as such paver blocks are not to be permanently embedded on earth and are capable of being removed as such without causing damage to them for reuse elsewhere, is not correct. The purpose of laying of paver blocks is to ensure efficient parking of automobiles with no wear and tear, to have longevity, durability and flexibility to re-use. The flexibility to re-use does not mean that blocks will be removed and re-erected frequently. Mere capability of removal and reuse elsewhere does not mean blocks are not permanently embedded to earth and hence can be used as moveable property with eligibility of credit. In the instant case, the laying of paver blocks would qualify as construction of immoveable property and therefor would not be eligible for ITC in terms of S. 17(5)(d) of the CGST Act. Further, as the decision of Hon’ble Orrisa HC in the case of Safari Retreats Private Limited is pending with Hon’ble SC and has not attained its finality, the ratio of the said judgment is not relied upon.
M/s Sundharams Private Limited (Maharashtra AAR)
CESTAT RULINGS
No penalty in case where the entire service tax liability along with interest was paid before the issuance of show cause notice
Where the entire service tax liability along with applicable interest has been paid before the issuance of show cause notice which was further intimated to the authorities, the authorities should not serve any notice under section 73(3) of the Finance Act, 1994 in respect of the amount already paid. Further, no penalty proceedings should be initiated under various sections of the Finance Act 1994.
Kmmi Steel Private Limited v. CC C.E & ST- Belgaum (Bengaluru CESTAT)
There is no requirement of one to one correlation in CENVAT scheme and cross utilization of credit availed on input services to pay duty on excisable goods is allowed
In terms of CENVAT Credit Rules, manufacturer of excisable goods is entitled to take credit of taxes paid on input services and there is no such requirement for one to one correlation. Hence, there is no bar on utilization of CENVAT availed on input services for the payment of duty on excisable goods manufactured and cleared. Any contrary view taken would defeat the very scheme of the credit envisaged under CENVAT rules. It is a settled principle that where the inputs or input services are procured on payment of taxes and as long as they are capable of being used in provision of services or manufacture of excisable goods, credit of taxes paid on their procurement cannot be denied.
M/s Tally Solutions Private Limited v. Commissioner of Central Excise, Bengaluru (Bengaluru CESTAT)
COURT RULINGS
Department to process the refund application manually, where the portal is still not accepting refund application spread over two financial year
Where the Para 8 of Circular 125/44/2019-GST dated November 18, 2019, restricting the spread of refund application over two different financial years, has been stayed by the Court and GST portal still not accepting such refund application, directions have been issued to the Department, considering the strict timelines stipulated in Rule 90 and 91, to process the refund application manually and issue the refund within 3 working days.
M/s Pitambra Books Private Limited v. Union of India & Ors. (Delhi HC)
Department has no right to point out deficiencies in refund application after 15 days from the date of filing
Rule 90 and Rule 91 of the CGST Rules provide for complete code as to acknowledgment, scrutiny, grant of refund which are to be completed within strict timelines as provided thereunder. As acknowledgement in RFD-02 or deficiency memo in RFD-03 have not been issued within the statutory timelines, the refund application shall be presumed to be complete in all respect. Where, deficiency memo is allowed to be issued post 15 days, it will amount to rejection of original application filed by the claimant, as the claimant will have to file a fresh application post issuance of RFD-03. This would, not only delay the petitioner’s right to seek refund, but also impair his right to claim interest in terms of the provisions contained under section 56. Hence, department has lost its right to issue deficiency memo after the statutory timelines and is hereby directed to pay the refund along with the applicable interest within 2 weeks.
Jian International v. Commissioner of Delhi GST (Delhi HC)
GST APPELLATE AUTHORITY RULINGS
In case of erroneous filing of GSTR 3B, relevant correction should be made in subsequent month returns
In a challenge to the rejection order for a refund under section 54(3) of CGST Act, where turnover of zero rated supply was erroneously reported as Nil and no corrections, in terms of circular 7/7/2017-GST dated September 01, 2017, were made in subsequent returns filed, it has been held that where the taxpayer has committed any error while filing GSTR 3B, the steps should have been taken to rectify it. Hence, the contentions made by the taxpayers cannot be upheld and accordingly are rejected.
M/s Stone India (GSTAA Jaipur)
Disclaimer
Information contained herein are only for reference purposes and are based on the information publicly available as on the date of this publication. The author takes no responsibility for its reliability and accuracy. It is advised to take appropriate legal/professional advice before undertaking any business activity or otherwise based on the above.
