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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 No 118 on taxability of commission paid on sale of rice

GST update No 118 on taxability of commission paid on sale of rice
India is an agriculture country and so the government has been allotting substantial portion of budgetary expenditure for development of agricultural sector and provide tax benefits to cultivators. The government had given certain exemptions vide Notification No. 12/2017 – Central Tax dated 28.06.2017 to certain sectors from levy of GST, agriculture sector being one of them. However, the assessee needs to pass the test of product being considered as “agricultural produce” in order to avail exemption in GST. Recently, one such issue was raised before the Karnataka AAR in case of M/s HINDUSTAN AGENCIES [ADVANCE RULING NO. KAR ADRG 73/2021 DATED 06.12.2021] wherein it was inquired as to whether the services provided in relation to selling of rice is liable to GST or not. The outcome of this decision is the subject matter of discussion of our present update. The applicant sought ruling on whether they are entitled to collect GST on supply of service which pertains to selling of agriculture produce as per APMC Act. The applicant submitted that he is a commission agent for rile millers and traders. As per the applicant’s contention, paddy and rice are both agriculture produce. The applicant believes that de husking or hulling of paddy would not alter the basic characteristics of the produce and is normally undertaken by cultivator to make it marketable for primary market. Reliance was place on Supreme Court’s decision in case of Ernakulam V.s Pio Food Packers wherein it was concluded that canned pineapple slices are to be treated as pineapple only. The applicant contended that the commission agency services for supply of rice to the rice millers will fall within clause (g) of SI. No. 54- Heading 9986 of Notification 12/2017- CT dated 28.06.2017 and is covered by exemption from levy of GST. The counsel of the department contended that rice cannot be considered as an agricultural produce and so it is not covered by the exemption notification. The respondent heavily relied on the definition of agriculture produce. In order to treat a product as agricultural produce, all of the following criteria must be fulfilled: a) The produce should be out of cultivation of plants and rearing of all life forms of animal. b) Further processing should not be done. And if any processing isdone, it is usually done by the producer or cultivator. c) The processing should not alter the very basic characteristic of the produce. d) The processing should render the product marketable. The revenue was of opinion that rice is obtained from paddy cultivation. Further, in addition to processing by cultivator, “milling” is done by millers which is normally not processed by cultivator or producer. Moreover, the essential character of paddy gets converted into rice as paddy can only be consumed after certain processing such as husking, steaming etc. Hence, it was pleaded that rice cannot be termed as agriculture produce. The AAR upheld the view of the revenue. The AAR also held that rice is an outcome of milling process carried out on paddy. The rice can be consumed directly, however, as far as paddy is concerned, it is subject to milling process. Further, milling process is not done by cultivators. Hence, it was concluded that rice is not an agriculture produce. The applicant is not assisting the cultivators of paddy instead he is assisting the manufactures of rice, millers and traders. Hence, it was concluded that the said activity carried out as a commission agent is not covered under exemption and hence, GST shall be levied on the same. It is worth mentioning that many of the disputes of erstwhile indirect tax regime are being inherited into GST era and one of them is the tussle of rice being considered as an agricultural produce. The dispute regarding rice being agricultural produce was prevalent in negative list regime wherein specific exemption was provided expressly stating that loading, unloading, packing, storage and warehousing of rice was exempt from levy of service tax. It was also clarified vide Circular no. 177/3/2014-S.T. dated 17.02.2014 that milling of paddy is an intermediate process in relation to agriculture and so job work of converting paddy into rice was also exempted from levy of service tax. It appears that the ripples of past litigation have occurred in the GST regime too. It is hoped that the above advance ruling is reversed by AAAR or a suitable clarification is issued by the CBIC for GST era too so that unwarranted disputes may be avoided.
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