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Document Heading in Calibri Light Green That Can Be up to Three Lines Indirect tax newsletter Updates: Indirect tax judgments We are delighted to share a few important judgments/advance rulings passed under the Goods and Services Tax (GST), Customs, Central Excise, Service Tax and Value Added Tax laws. Goods and Services Tax M/s Britannia Industries Ltd. vs. Union of Kalpsutra Gujarat vs. The Union of India India 2020-TIOL-1495-HC-AHM-GST [Special Civil Application No. 10562 of 2020] The Gujarat High Court held that a unit in Special The Gujarat High Court has issued notice to the Economic Zone (SEZ) can claim refund under GST of revenue in pursuance to a writ seeking striking down of input tax credit (ITC) received from an input service Rule 86A of the CGST Rules. This gives power to block distributor (ISD). The Court observed that the SEZ unit ITC at no fault of the registered recipient and declare it is not barred from claiming refund under provisions of as ultra vires of Section 16 of the CGST Act. The matter the Central Goods and Services Tax Act, 2017 (CGST was last heard on 16 September 2020. Act) and the Central Goods and Services Tax Rules, 2017 (CGST Rules). Indirect tax newsletter Bharti Airtel Limited vs. Union of India & Ors. Devices Distributors vs. Assistant State Tax [W.P. (C) 5817/2020] Officer and Others [2020-TIOL-1280-HC-KERALA-GST] The Delhi High Court has admitted the writ challenging The goods of the petitioner were detained on the the restriction of ITC under CGST Act on ground that the serial numbers of three invoices were telecommunication towers. The petitioner submitted not consecutive. The Kerala High Court held that since that the towers are based on a rudimentary the goods were accompanied by tax invoices and e- “screwdriver” technology and hence, cannot be waybills, the provisions of CGST Rules were duly considered as “immovable property”. Accordingly, it complied with. The justification given by the revenue would be decided whether ITC should be allowed on cannot be considered as a ground for detention of telecommunication towers. The matter will be heard goods. next on 20 November 2020. Downtown Auto Pvt. Ltd. vs. Union of India Gr Infraprojects Limited vs. Union of India [2020-TIOL-1301-HC-AHM-GST] [D.B. Civil Writ Petition No. 6337/2020] The Gujarat High Court observed that payment of The petitioner challenged the notification dated 9 excise duty on the cars purchased by the petitioners October 2019 issued by the Ministry of Finance, and also on spare parts can be verified on the basis of introducing Rule 36(4) of the CGST Rules placing documents submitted by the petitioners. The Court restrictions on availing ITC at 10/20 percent over and held that the excise duty can be transitioned by car above the amount reflected in GSTR 2A, despite having dealers in the absence of credit transfer documents as a valid tax invoice. The petitioner submitted that such well. introduction is ultra vires to Sections 38(1) and 42(3) of the CGST Act. The matter has been admitted by the Rajasthan High Court and was last heard on 16 September 2020. Pazhayidom Food Ventures (P) Ltd. vs. M/s Tata Motors Ltd. Superintendent Commercial Taxes [2020-TIOL-245-AAR-GST] [2020-TIOL-1302-HC-KERALA-GST] The Kerala High Court allowed payment of GST liability The Maharashtra Authority for Advance Ruling (AAR) in instalments by the petitioner due to financial held that effective 1 February 2019, ITC shall be difficulties faced by it during the COVID-19 pandemic eligible to the applicant on GST charged by service situation. The judgment was based on the fact that the provider on hiring of bus or motor vehicle having a petitioner had admitted the tax along with interest as seating capacity of more than 13 persons for assessed by the revenue. The Court further held that transportation of employees to and from workplace. such benefit will be lost in case of default in payment The Maharashta AAR also held that since the services of any single instalment. are provided to employees of the applicant only, the amount recovered from the employees will not be considered as “supply” under GST. ITC will be available only on the cost borne by the applicant. M/s Volvo-Eicher Commercial Vehicles Ltd. [2020-TIOL-37-AAAR-GST] The Karnataka Appellate Authority for Advance Rulings (AAAR) has set aside the ruling of Karnataka AAR. It was held that the repair and service of Volvo vehicles (provided by parent entity located outside India) owned by Indian customers and fulfilled by the applicants during the warranty period, is an activity amounting to a composite supply of goods and services. The principal supply in such a case will be that of service. Indirect tax newsletter Customs Union of India and Others vs. M/s G S Chatha Rice Mills and Another [2020-TIOL-157-SC-CUS-LB] The Supreme Court held that the customs duty applicable on goods at the time of presenting bill of entry shall be considered for assessment. If the applicable rate is changed through a notification, which is published later during the same day, the goods would not be re-assessed by the customs authorities. Coromandel Fertilisers Ltd vs. Commissioner of Customs [2020-TIOL-1169-CESTAT-HYD] The CESTAT Hyderabad held that refund cannot be claimed with respect to any assessment including self-assessed bills of entry, unless the assessment itself is challenged by the assessee and set aside by the appellate authority. The appeal of the appellant was dismissed, as the finally assessed bills of entry were not challenged before the appellate authority. Central Excise M/s Bharat Heavy Electricals Ltd. vs. The Commissioner, Central Goods Service Tax [2020-TIOL-1341-CESTAT-DEL] The CESTAT Delhi has held that education cess, secondary and higher education cess, and Krishi Kalyan cess appearing in the central excise returns as on 30 June 2017, which was not transitioned to the GST regime, can be claimed as refund under the previous regime. The CESTAT observed that there was a vested right in CENVAT credit accumulated on the cesses and it will not extinguish with the change of law, unless there is a specific provision which will debar such a refund. Service Tax Linde Engineering India Pvt. Ltd. and 1 Other(s) vs. Union of India [2020-TIOL-1285-HC-AHM-ST] The Gujarat High Court held that services provided by a subsidiary in India to the parent entity located outside India will be considered as export of services under the service tax law. The provider of service and recipient of service are separate legal entities and cannot be treated as establishments of a distinct persons. Value Added Tax SHV LPG India Pvt. Ltd. vs. The Deputy Commissioner (CT)-I [2020-TIOL-1551-HC-MAD-VAT] The Madras High Court held that proceedings against an assessee cannot be initiated by the assessing officer solely on reports or proposals of higher authorities such as the enforcement wing. The assessing officer can deviate from such proposals if those do not conform to the law or established principles set by various higher judicial forums. Indirect tax newsletter For more information, contact: Mahesh Jaising Deloitte Touche Tohmatsu India LLP Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee (“DTTL”), its network of member firms, and their related entities. DTTL and each of its member firms are legally separate and independent entities. DTTL (also referred to as “Deloitte Global”) does not provide services to clients. Please see www.deloitte.com/about for a more detailed description of DTTL and its member firms. This material is prepared by Deloitte Touche Tohmatsu India LLP (DTTILLP). This material (including any information contained in it) is intended to provide general information on a particular subject(s) and is not an exhaustive treatment of such subject(s) or a substitute to obtaining professional services or advice. This material may contain information sourced from publicly available information or other third party sources. DTTILLP does not independently verify any such sources and is not responsible for any loss whatsoever caused due to reliance placed on information sourced from such sources. None of DTTILLP, Deloitte Touche Tohmatsu Limited, its member firms, or their related entities (collectively, the “Deloitte Network”) is, by means of this material, rendering any kind of investment, legal or other professional advice or services. You should seek specific advice of the relevant professional(s) for these kind of services. This material or information is not intended to be relied upon as the sole basis for any decision which may affect you or your business. Before making any decision or taking any action that might affect your personal finances or business, you should consult a qualified professional adviser. No entity in the Deloitte Network shall be responsible for any loss whatsoever sustained by any person or entity by reason of access to, use of or reliance on, this material. By using this material or any information contained in it, the user accepts this entire notice and terms of use. ©2020 Deloitte Touche Tohmatsu India LLP. Member of Deloitte Touche Tohmatsu Limited.
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