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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST update - 13.1.2017 Definition of Exempt supplies, Goods and Inputs

GST DAILY DOSE OF UPDATION
Definition of Exempt supplies, Goods and Inputs
Taking further to our discussion, we are continuing our discussion the definitions given under Section 2 of revised GST law and comparing the same with old model GST law to know the changes made in revised law:-
Section 2(42): Exempt Supplies: This has been defined to mean supply of any goods and/or services which are not taxable under this Act and includes such supply of goods and/or services which attract nil rate of tax or which may be exempt from tax under section 11.

When we compare this definition with definition in Model GST law, it can be noticed that NIL rate of tax will be classified as exempt supplies for the purpose of this act. The definition of exempt supply is also important for the purpose of allowing input tax credit. When the input tax credit is partly used for taxable supply and party for exempt supply then the credit will be restricted to so much credit as is attributable to taxable supply as per provision of Section 17(2) of Revised GST law. But inclusion of NIL rate of tax into exempt supply would mean that earlier there was an interpretation that cenvat could be allowed on such supplies but after the amendment, it is clear that nil rated supplies will be exempt supplies and as a result, so much cenvat as is attributable to such supplies shall not be allowed.

Also, the definition of "exempt supply" also include those supply which are exempted under Section 11. We see that there is no change in this regard on comparing with old GST law except earlier the Section giving exemption was Section 10 only. Even there is no major difference in wording of new and old section. However, certain points are relevant for Section 11 which are as under:-
a. The Central or State Government can issue notification to give exemption from payment of GST but it will be done on recommendation of GST council only.
b. The Central or State Government can also issue special order to give exemption from payment of GST in exceptional circumstances but it will also be issued on recommendation of GST council.
c. There is a power in Central and State Government to issue an explanation to add in this notification or order within one year to explain the scope of notification or order and this will have effect that this explanation will be part of statue from the date of notification. This can be welcome step to clarify doubts but at the same time, it can dangerous as it may create liability retrospectively. The interpretation taken by assessee on language of notification can be undone by issue of an explanation.
d. There is no need to issue notification in public gazette only but it can be effective on publication on website of the Government. This is also major change from the existing position. Even the Apex Court has held that the notification will effective from the date of issue of notification in official gazette.

1. Section 2(48) Goods: There has been substantial change in the definition of goods. The new definition reads as follows:
“Goods means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply;”

The old definition read as follows:
“goods’’ means every kind of movable property other than actionable claim and money but includes securities, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under the contract of supply; 
Explanation.– For the purpose of this clause, the term ‘moveable property’ shall not include any intangible property.

When both the definitions are compared, it can be noted that goods will now include actionable claim, intangible property and exclude securities. In other words Shares / debenture / Mutual Funds etc have been excluded from GST and transaction in these will not be subjected to GST. There was dispute and share market was demanding to exclude the securities from GST and it is welcome step on part of Government. Similarly actionable claim will be included in Goods instead of services. Also the explanation has been deleted under new definition giving effect that intangible property will be covered under goods now instead of services. This is done with the intention to end the ongoing dispute over the software service classification.

2. Section 2(54): Input: The new definition read as follows:
“Input means any goods other than capital goods used or intended to be used by a supplier in the course or furtherance of business;”

The old definition read as follows:
“input” means any goods other than capital goods, subject to exceptions as may be provided under this Act or the rules made thereunder, used or intended to be used by a supplier for making an outward supply in the course or furtherance of business;

The intention behind the amendment has largely been to simplify it to avoid any litigation. It can be noted that in the old law, the definition was oriented towards mandating the use of the goods for making the outward supply. In the new definition, this condition has been done away with and the only condition retained is that the inputs should be used in the furtherance of business. This will avoid litigation to a large extent where there is dispute over the use of inputs. The only fact that it has been used for the purpose of business itself will be sufficient to render it eligible for the purpose of availing cenvat.

 

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