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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 203 ON ADMISSIBILITY OF CREDIT ON LNG JETTIES

GST UPDATE No 203 ON ADMISSIBILITY OF CREDIT ON LNG JETTIES

The admissibility of input tax credit with respect to construction of plant and machineries which are affixed to Earth and are in the nature of civil constructions has been a matter of dispute since inception of GST laws. The input tax credit on civil constructions is restricted under the provisions of section 17(5) of the CGST Act, 2017. Recently, the matter regarding availability of input tax credit on LNG jetties constructed on sea shore was raised before Gujarat AAAR in the case of M/S SWAN LNG PVT LTD. The outcome of this decision is the subject matter of discussion of our present update.

 

M/s. Swan LNG Pvt. Ltd has entered into agreement with Gujarat Maritime Board and Government of Gujarat for development, construction, operation and maintenance of Liquefied Natural Gas i.e. LNG Port with a Floating Storage and Regasification Unit i.e. FRSU. After development of the said Import Terminal, the appellant intends to provide LNG regasification service to prospective customers. The appellant asked the question whether the jetties constructed by them will be considered as plant and machinery and if they can avail the ITC. They contended the jetties are constructed by them as foundation of plant and machinery and as per explanation to sec 17(6) of CGST Act, 2017, there is no bar on credit on foundation of plant and machinery but the explanation restricts ITC on land building or any kind of civil structure, telecommunication towers or the pipeline laid outside the factory premises. Accordingly, they contended that jetties should be treated as the foundation of plant and machinery which is necessary for outward supply and therefore ITC must be available.

 

After going through Sec 16 and Sec 17 of CGST Act, AAR contended that jetties are nothing but a civil structure. As per AAR, jetties are nothing but they are similar to the building made high above the sea shore. It cannot be considered as foundation instead it is a building made on the foundation. Moreover, to be considered as a plant and machinery, they must be located inside the factory. Therefore, AAR ruled that ITC on the same will not be available.

 

Subsequently, the appellant filed an appeal before the AAAR against the ruling of AAR. AAAR held that allowing input tax credit on construction of foundation cannot be decided in isolation without deciding as to whether items to be fixed on it falls within the definition of plant and machinery or not and further the same would be used for making outward supply of goods or services or both. LNG Jetties are nothing but civil structures which are excluded from the definition of foundation and structural supports. The foundation that is allowed in definition of plant and machinery is that which fixes the plant and machinery to the earth making it immovable. If certain portion of LNG jetties is used for directly fixing plant and machineries, then it will not make jetties foundation for plant and machineries but they are only in the nature of civil structures. The AAAR held that the appellant has also not produced any evidence to substantiate their claim that LNG jetties which according to them are foundation of plant and machineries will be used for outward supply of goods or services or both. AAAR concluded that the LNG Jetties being built by the appellant are not in the nature of plant and machinery being foundation for equipment, apparatus, machinery for re-gasification to be installed thereon. Therefore, input tax credit on inputs, input services and capital goods for the purpose of building these LNG Jetties is not admissible.

 

The above decision is yet another example of a stringent view taken as regards availability of input tax credit on construction of plant and machinery on the premise that it is to be considered as civil structure. The tussle as regards whether construction can be treated as that of plant and machinery or civil structure has its roots from erstwhile indirect tax regime wherein Courts have concluded that if it is not possible to shift the installed plant and machinery to another site as if the plant is dismantled, it will lead to its destruction, it results into immovable property. Similar analogy is being adopted in GST regime too for ascertaining whether the plant and machinery can be considered as civil structure and whether input tax credit would be available on it. It is hoped that government provides leverage to such cases so that the ITC chain is not disrupted as installation of plant and machinery involves huge capital expenditure.
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