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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Law/2020-2021/3563

Whether input tax credit is admissible in respect of bunds which are constructed and used in the manufacture of salt and bromine chemicals?
M/s Satyesh Brine chem Private Limited (AAR Gujarat) GUJ/GAAR/R/ 19/2019 dated 11.09.2019
 
Brief Facts:The applicant is engaged in the manufacture of Salt from sea water. During the procedure for generation of Salt, Bunds are required to be constructed in order to form a circuit area for discharging brine. Bunds are being prepared by sub- contractor by using material and further GST is paid by the applicant on contract as well as on materials purchased. Without “bunds/ crystallizers” activity of manufacturing salt and bromine are not possible. Further the applicant is required to export the salt manufactured as per the condition and undertaking given to the government while taking land on lease basis.
 
Issue: Whether input tax credit is admissible in respect of bunds which are constructed and used in the manufacture of salt and bromine chemicals?
 
 
Applicant’s Contention:
 
  1. The applicant has pointed out that input tax credit is admissible as per section 16 of CGST Act 2017. It was submitted that the material used for constructing bunds as well as the services availed for construction of bunds are used in the course or furtherance of business and hence input tax credit is admissible under Section 16(1) of the GST Acts.
 
  1. It is further submitted by the applicant that ‘bunds’ does not fall under the restrictive clauses of Section 17 of the Act. These are ‘Plant and Machinery’ and doesn’t fall under Clauses (c) and (d) of Section 17(5).
 
  1. In order to support the above mentioned contention the applicant has produced judgement given by Honourable Supreme court in the case of Scientific Engineering House (P) Ltd. Wherein it was held that technical Know-how falls within the definition of the term ‘Plant’. 
 
  1. The applicant has further submitted that if functional test is being applied then bunds/crystallizers clearly qualify as Plant and Machinery as they form an integral part of the apparatus with the help of which manufacturing process is undertaken.
 
  1. The following Judgements of Honourable Supreme court are also being quoted which are squarely in support of the applicant.
 
  1. Jayaswal Neco Ltd. v/s Commissioner of Central Excise (held in this case that “railway track material used for handling raw material s and process goods” are capital goods)
  2. Commissioner of Central Tax V/s Rajasthan Spinning and Weaving Mills Ltd. (Held in this case that steel plates and M.S. channels used in the fabrication of chimney for diesel generation set are “capital goods”).
  3. State of Gujarat v/s Pipavav Defense and Offshore Engineering Company Ltd. (2017) 105 VST 60 (Guj.) wherein it was held that goods used for construction of “dry dock” and “fit out berth” which were necessary for the purpose of the ship manufacturing business of the dealer qualified as “plant and machinery” and therefore input tax credit was admissible in respect of such goods under the Gujarat Value Added Tax Act, 2003.
  4.  
 
Judgement:Attention was drawn to the definitions of Zero rated supply, Exempt Supply and Non-taxable supply as the applicant submitted that the goods manufactured were exported subject to the condition mentioned. It has been held by the authority that as it is a Zero rated supply, ITC on inputs and input services shall be available as per section 16(2) of CGST Act 2017.
As per section 16(2) of the IGST Act, Input tax credit is available on inputs and input services to make Zero rated supplies (such supply may be an exempt supply), subject to the provisions of sub-section (5) of section 17 of CGST Act. As per Clauses (c) and (d) of Section 17(5) of the GST Acts, input tax credit is not admissible in respect of works contract services or any goods and services for construction of immovable property (other than plant and machinery). Thus, a specific exception is made with regard to “plant and machinery.
 
Comment:The question of qualifying as Plant and Machinery has always been an issue be it pre GST regime or post GST regime. But as of now there have so many decisions which distinguish among building, plant and machinery & other civil structures which would be of great help to the assesse.
 
 
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