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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 ON REVERSAL IN CASE OF EXEMPTED BY PRODUCTS UNDER RULE 42 81/2020-21

GST UPDATE ON REVERSAL IN CASE OF EXEMPTED BY PRODUCTS UNDER RULE 42 81/2020-21
Rule 42 prescribes a formula for computing the amount of credit attributable to exempted supply. Broadly, as per the said Rule, in respect of the inputs and input services which are used exclusively for making the exempted supplies, credit is not available. There may be certain inputs/input services which are used for making taxable as well as exempted supplies.
As per Rule 42(2) of CGST Rules, the amount of common credit reversed on monthly basis during the year is required to be calculated finally for the financial year before filing GSTR 3B of the month of September of the following financial year.
Recently, in case of Indo Prosoya Foods (P.) Ltd., AAAR-UTTAR PRADESH ruled that Input/Credit attributable to the supply of de-oiled rice bran cake (exempted supply) is to be reversed by the appellant in terms of Section 17(2) of the CGST Act, 2017. GST @ 18% is payable on supply of de-oiled mahua cake with consequent allowing of input credit in terms of Section 16 of the CGST Act, 2017.
The Applicant purchases Mahua oil cake/Rice Bran for extraction of oil through solvent extraction process in which oil is primary product and De-oiled Mahua Cake/De-oiled Rice Bran is obtained. Mahua oil cake/Rice Bran is fed to solvent Extraction Plant for extraction of oil through Hexane. During the process of the oil extraction, a huge quantity of de-oiled cake is also produced (almost to the 65%-70% of the raw material).
The applicant filed application to know i) Whether mahua de-oiled cake/de-oiled rice bran, being used as an ingredient of cattle feed, poultry feed and other animal feeds is ‘waste generated’ during the solvent extraction process and ii) Whether the applicant is eligible to get entire tax input credit of GST paid on purchase of mahua oil cake/rice bran used in the manufacture of solvent extracted oil.
The applicant has submitted that the de-oiled cake is a waste and a mere technological necessity. The ‘Waste’ generated during the manufacturing process cannot be treated as ‘supply’ in light of judicial pronouncements since it is mere technological necessity. The provisions of Section 17 and more specifically sub-section (2) of CGST Act, 2017 are inapplicable. Entire Input Credit should be allowed since the whole of it is being used in the manufacture of solvent extract oil.
 
However, authority said that two equally and completely commercially viable products emerge during manufacturing process of solvent extraction viz. oil and de-oiled cake. Both these products are sold by a company with equal emphasis and both are commercially lucrative to solvent extractor. After oil is extracted from pellets, manufacturing process does not end at that point. In fact, pellets from which oil has been extracted further undergo desolventising process i.e. separation of normal-Hexane from De-oiled bran subsequent to which de-oiled bran is chemically tested for their oil and silica content to meet clients’ specifications and finally it is sent to the bagging section for packing into branded unit packaging. It is unimaginable that investment into a desolventising plant and bagging unit will be made for a product which is allegedly ‘unintended’ or ‘mere technical necessity’. De-oiled cake is a very much intended product inasmuch as it may affect overall financial health of company, since it is a major revenue yielding commodity for oil extractor. Thus, through an elaborate process, chemical testing and packing, de-oiled cakes are finally manufactured and made marketable.
AAAR Relied upon the Judgment of Hon’ble Supreme Court, in case of Commissioner of Central Excise v. Goyal Proteins Ltd. [2017 (355) E.L.T. A27 (SC)] and State of Karnatka v. M.K. Agro Tech (P.) Ltd. [2017] 86 taxmann.com 123/64 GST 19.
Definition of ‘Supply’ leaves no ambiguity that anything that is sold with or without consideration is supply. Having settled issue of sale of de-oiled cake being supply, it can be concluded that Section 17(2) of the GST Act, 2017 is very much applicable.

In our opinion, if the assessee successfully convinces that the product generated during the manufacturing process is a byproduct, then such product if exempted does not classify for the purpose of reversal as per Rule 42 and Section 17(2) of the Act. The assessee dealing with such case is advised to submit a full proof report of the generation process of the exempted product with the certification of required authority to escape from reversing common credit. However, the government should issue a clarification determining the method of reversal in case of exempted by products to avoid future litigations.
This is solely for educational purpose. 
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