AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (12) TMI 1087
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....visions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act /MGST Act would be mentioned as being under the "GST Act" 02 FACTS AND CONTENTION - AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- STATEMENT OF THE RELEVANT FACTS HAVING A BEARING ON THE QUESTIONS: That originally machines & moulds were transferred to M/s. Shaily Engineering Plastics limited directly by the supplier of the principal manufacturer namely M/s. MWV India Pvt. Ltd. That further in August 2017 M/S. MWV India Pvt. Ltd. sold part of business under Slump Sale vide BTA dt. 31.08.2016 to Aphrodite Packaging Solutions Pvt. Ltd including subject item of capital goods. Thereafter, the name of the company was changed to M/s. Silgan Dispensing Systems India Pvt. Ltd. form Aphrodite Packaging Solution Pvt. Ltd. Your reference kindly find attached herewith the Name Change Certificate dated. 13.11.2017 marked as ANNEXURE-I. Tha....
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....148 Zara-1 51,124 34. Base fixture for T 1149 Zara-1 30,674 35. Zara-1 -Tooling Zara-1 1,04,070 36. 16 Cavity Injection Mould for Nozzle for T-1117 Plant & Machinery 48,83,987 37. Menuel Nozzle for T-1117 Plant & Machinery 6,79,670 Total 16,36,02,936 Certificate of Incorporation pursuant to change of name [Pursuant to rule 29 of the Companies (Incorporation) Rules, 20141 Corporate Identification Number (CIN): U74999MH2017PTC291226 I hereby certify that the name of the company has been changed from APHRODITE PACKAGING SOLUTIONS PRIVATE LIMITED to SILGAN DISPENSING SYSTEMS INDIA PRIVATE LIMITED with effect from the date of this certificate and that the company is limited by shares. Company was originally incorporated with the name APHRODITE PACKAGING SOLUTIONS PRIVATE LIMITED. Given under my hand at Mumbai this Thirteenth day of November two thousand seventeen. Registrar of Companies, Mumbai STATEMENT CONTAINING APPLICANTS INTERPRETATION OF LAW IN RESPECT OF THE QUESTIONS RAISED Legal Grounds: i. That prima facie the machines & moulds were originally transferred by M/s. MWV India Pvt. Ltd. to the job-worker under erstwhile Central Excise ....
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....icular language used in particular provision of law is without having any meaning for same. 2012 (283) ELT 188(A.P.)- IDBI ltd. = 2012 (10) TMI 873 - ANDHRA PRADESH HIGH COURT Held: Interpretation of statutes - Taxing statute - It has to be strictly constructed - Introducing or omitting any words from it is not permissible - When language of statute is plan and clear, any exercise to know intention of legislature is not called for nor taxing officer travel beyond power to levy and collect tax. (2012) 281 ELT 321 (Mad.)- Nirma Limited = 2012 (10) TMI 832 - MADRAS HIGH COURT Held: The law is not a brooding omnipotence in the sky' but a pragmatic instrument of social order, as was opined by the Larger Bench of the Apex Court in Carew & Co. Ltd. v. Union of India, (1975) 2 SCC 791 = 1975 (8) TMI 91 - SUPREME COURT OF INDIA. It was further held in that case that if the language of the statute does not admit of the construction sought, wishful thinking is no substitute for that, thereby holding that purposive interpretation is always progressive in nature. 2010(262) ELT 50(SC)- Balwant Singh = 2010 (7) TMI 556 - SUPREME COURT OF INDIA Held: Interpretation of statutes - Legislative ....
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....s "Supply" & accordingly GST is not payable on such transfer. Additional submissions on 27.06.2018 This is in reference to the above mentioned subject matter. That the short issue Involved under the present dispute is that whether GST is payable on transfer of capital goods/moulds from one job worker to another job worker, where originally the said goods were transferred by Principal to the job worker under erstwhile Central Excise Act, 1944. That accordingly it is most humbly submitted that originally the capital goods/moulds were transferred by M/s. Meadwestvaco India Pvt. Ltd. (hereinafter referred to as "MWV") to M/s. Shaily Engineering Plastics Ltd. (hereinafter referred to as "Shaily" for sake of brevity), and Shaily had availed credit on the said capital goods/ moulds. That subsequently the business of Meadwestvaco was transferred as a going concern to M/S. Aphrodite Packing Solutions Pvt. Ltd. with effect from 31.08.2016. Thereafter the name of the company was changed to M/s. Silgan Dispensing Systems India Pvt. Ltd (hereinafter referred to as "SiIgan") vide name change certificate dt-13.11.2017 That Sec 143 of the CGST Act, 2017 provides that any inputs or capital goo....
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....s Pvt. Ltd. with effect from 31.08.2016. Thereafter the name of the company was changed to M/s. Silgan Dispensing Systems India Pvt. Ltd (hereinafter referred to as "M/s. Silgan") vide name change certificate dt. 13.11.2017. That for your reference kindly find attached herewith name change certificate marked as ANNEXURE-B. D. That presently, vide Challan no. 1,2,3 and E-way Bill dt. 5.06.2018 M/s. Silgan has transferred the capital goods/moulds from 1st Job worker (i.e) M/s. Shaily to 2nd Job worker (i.e) M/s. Vasanth Tools Crafts Pvt. Ltd (hereinafter referred to "M/s. Vasanth for sake of brevity). That for your reference kindly find attached herewith copy of Challan and E-way bill duly marked as ANNEXURE-C. That accordingly, the present application is being filed by M/s. Silgan in order to seek clarity in respect of the legal position that whether transfer of capital goods/moulds by the 1st Job worker to 2nd job worker will constitute as "'Supply" under CGST Act, 2017 or not. Legal Submissions: i. That in light of the above factual position, we prima facie crave leave to refer and rely upon section 143 of the CGST Act, 2017 which provides as below: A registered person (here....
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....spectively, of their being sent out from the place of business of a job worker on payment of tax within India, or with or without payment of tax for export, as the case may be: Provided that the principal shall not supply the goods from the place of business of a job worker in accordance with the provisions of this clause unless the said principal declares the place of business of the job worker as his additional place of business except in a case- (i) where the job worker is registered under section 25; or (ii) where the principal is engaged in the supply of such goods as may be notified by the Commissioner. v. That under the present application, the capital goods/ moulds were originally transferred by M/s. MWV, principal manufacture to M/s. Shaily, 1st Job worker, and Cenvat Credit on such transfer of capital goods/ mould was availed by M/S. Shaily as consignee/ recipient of goods as provided/ permitted under erstwhile Cenvat Credit Rules. It is most humbly submitted that when Capital Goods/ Moulds belonging to principal manufacturer are transferred from the premises of supplier of principal manufacturer directly to job worker of principal manufacturer as "Consignee & Cenv....
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....uly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or vii. That in light of section 174 (2)(a)(b)(c), the time limit of 3 years for receipt back of capital goods by principal manufacturer after completion of job work cannot be extended retrospectively to a transaction which was principally & originally undertaken under the erstwhile Central Excise Act, 1944 as the CGST Act, 2017 neither can receive anything which was not in force at the time of repeal nor affect any privilege accrued under repealed act and especially in absence of any transitional provisions which governed the transition of the erstwhile law to the present law. viii. That moreover, Hon'ble Mumbai Bench in the case of Balmer Lawrie & Co. Ltd. as reported in 2014(301) ELT 573 = 2014 (2) TMI 545 - CESTAT MUMBAI has held that Every statutory provision is prospec....
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....ds and dies also stans complied with. xiii. That further we crave leave to refer and rely upon the CGST Circular no: 38/12/ 2018 dated 26.03.2018. That the said Circular is issued to bring clarification in respect of job work and related compliance requirement for the principal and the job-worker. xiv. That specifically para. 8.4 of Circular dated 26.03.2018 provides that where goods are sent from one job worker to another job worker, the goods may move under Challan issued either by the principal or the job worker. In the alternative, the challan issued by the principal may be endorsed by the job worker sending the goods to another job worker, indicating therein the quantity and description of goods being sent. xv. On bare perusal of the above detailed clarification a clear understanding can be attained that if the job worker intends to move goods to another job worker the same can be done by issuing a Challan either by the principal or the job-worker on endorsement of the challan by the principal, Implying thereby that the goods can be transferred by the principal manufacturer from one job-worker to another job-worker without any GST. xvi. Accordingly, in absence of any trans....
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....emoved as such or removed after being partially processed to a job worker for further processing, testing, repair, reconditioning or any other purpose in accordance with the provisions of existing law prior to the appointed day and such inputs are returned to the said place on or after the appointed day, no tax shall be payable if such inputs, after completion of the job work or otherwise, are returned to the said place within six months from the appointed day: That on bare reading of the said provision and affirmed understanding can be attained that the transitional provisions solely covered inputs and their removal as such and further there exist no provision of law under CGST Act, 2017 providing for any ITC reversal mechanism in respect of removal of capital goods as such or after use hence in the scenario when the said provision failed to provide any explanation in respect of capital goods then no reversal on as such removal can be Subjected to capital goods and molds and tools in light and appreciation of the Section 141 dealing with transitional provisions and section 174 being the repeal and savings clause emphasizing that once the act is repealed no right, privilege, oblig....
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....sought in respect of GST application on said transfer of machines/ moulds to subsequent job-worker. 3. Further, the applicant in Point No.16 of the application (in Annexure-B), has submitted their interpretation of law which is as under: The applicant has submitted that sub-section 1 of section 141 of the CGST Act, 2017 deals with goods removed to job worker and mentioned that on bare reading it can be construed that the provisions detailed in Section 141(1) of the CGST Act, 2017, confine themselves to inputs only, whereas goods under consideration are capital goods in the nature of machines and moulds and in absence of any specific provision under the transitional provisions in respect of receipt of capital goods by job-worker under erstwhile Central Excise Law & lying with him as on appointed date of GST, present transfer of capital goods will not entail any GST liability. In support of the above said contention, the applicant relied upon the following judgements. a. 2014 (299) ELT 3 (Mad.) = 2013 (11) TMI 240 - MADRAS HIGH COURT - Metal Weld Electrodes. b. 2012 (283) ELT 188 (A.P.) = 2012 (10) TMI 873 - ANDHRA PRADESH HIGH COURT - IDBI Ltd. c. 2012 (281) ELT 321 (Mad.) = 20....
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....ely M/s. Vasanth Tools Crafts Pvt. Ltd. (hereinafter referred to "subsequent job-worker". However, it is not clear from the above information whether: a) The Cenvat Credit on the said Capital Goods have been availed/ taken by the Principal Manufacturer (M/s. MWV India Pvt. Ltd.,) or by the Job Worker (M/s. Shaily Engineering Plastics Limited) b) The Job Worker had been paying Central Excise Duty while clearing the finished goods/ semi finished goods to the Principal Manufacturer (M/s. MWV India Pvt. Ltd.,), The provisions regarding Job work under the Central Excise is as under: Rule 4(5)(b)(ii) & (iii) of Cenvat Credit Rules, 2004 (ii) As per the above Rule, the Cenvat Credit on capital goods shall be allowed even if any capital goods as such are sent to a job worker for further processing, testing, repair, reconditioning etc., for the manufacture of final products or any other purpose, and it is established that the capital goods are received back by the manufacturer or the provider of output service, as the case may be, within two years of their being so sent: (iii) If the capital goods are not received back within the time specified (i.e. two years) by the manufacturer, t....
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....t applicable to the applicant. The same is only for inputs sent to job worker and not the capital goods where in this case of applicant. 9. Further, the Board vide Circular No. 38/12/2018 dated 26.03.2018, had issued clarification on issues related to Job Work under GST. In para No.2 of the above Circular, it is mentioned that on completion of the job work, the principal shall bring back the goods to his place of business within three years in case of capital goods (except moulds and dies, jigs and fixtures or tools). In para No.3 of the above Circular, it is mentioned that if the time frame of three years for bring back capital goods is not adhered to the activity of sending the goods for job work shall be deemed to be a supply by the principal on the day when the said capital goods were sent out by him. PRAYER In this case the following information is not available: a) The Cenvat Credit on the said Capital Goods have been availed/ taken by the Principal Manufacturer(M/s. MWV India Pvt. Ltd.,) or by the Job Worker (M/s. Shaily Engineering Plastics Limited) in 2012-13 and 2013-14. b) The Job Worker had been paying Central Excise Duty while clearing the finished goods/semi fini....
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....by both, the applicant and the department. The basic issue before us is "whether on transfer of machines & moulds (being "capital goods"), from the premises of the job-worker to another job-worker, which were originally received by said job-worker under the erstwhile Central Excise Act, 1944 will constitute as "supply" under GST." The applicant has submitted that they proposed to transfer said machines/ moulds under the GST regime from the premises of Shaily Engineering Plastics Limited (their earlier job worker) to another job-worker namely M/s. Vasanth Tools Crafts Pvt. Ltd. The said capital goods were transferred to their earlier job worker in the year 2012, under the Erstwhile Central Excise Rules and prior to the introduction of GST. They have also submitted that when the capital goods/ moulds were originally transferred by them to the first job worker, on such transfer of capital goods/mould cenvat credit was availed by the first job worker as provided/ permitted under provisions of Rule 4(5)(b) of erstwhile Cenvat Credit Rules,2004, provisions of Rule 4(5)(b) of erstwhile Cenvat Credit Rules,2004 for receipt back of such capital goods/ moulds by principal manufacturer withi....
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....utside factory]. This position remains unchanged in the present Cenvat Credit Rules, 2002. From a reading of the Circular quoted by the applicant it is seen that nowhere it is mentioned that provisions of Rule 4(5)(b) of erstwhile Cenvat Credit Rules,2004 for receipt back of such capital goods/ moulds by principal manufacturer within stipulated time lime of two years are not applicable. The applicant has cited Section 141 of the CGST Act, 2017, which deals with the Transitional Provisions and have submitted that on bare reading it can be construed that the said provisions are confined only to inputs, whereas goods under consideration are capital goods. Hence they have come to a conclusion that when the transitional provisions have not detailed any provision in respect of capital goods/moulds then admittedly the same deserved to be cleared without payment of duty since essentially the duty was paid at the time of receipt of the said goods under the erstwhile Central Excise Act, 1944. Here they seem to have slipped on the fact that the cenvat credit of the said capital goods had been availed by the first job worker, as stated by them earlier in their submissions. They have also re....
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.....................; (ii) the CENVAT credit on capital goods shall be allowed even if any capital goods as such are sent to a job worker for further processing, testing, repair, re-conditioning or for the manufacture of intermediate goods necessary for the manufacture of final products or any other purpose, and it is established from the records, challans or memos or any other document produced by the manufacturer or the provider of output service taking the CENVAT credit that the capital goods are received back by the manufacturer or the provider of output service, as the case may be, within two years of their being so sent: Provided that credit shall be allowed even if any capital goods are directly sent to a job worker without their being first brought to the premises of the manufacturer or the provider of output service, as the case may be, and in such a case, the period of two years shall be counted from the date of receipt of the capital goods by the job worker; (iii) if the inputs or capital goods, as the case may be, are not received back within the time specified under sub-clause (i) or (ii), as the case may be, by the manufacturer or the provider of output service, the m....
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....M GST TRAN-I and included the said capital goods in his TRAN-I, as provided under Rule 117 of the CGST Rules, 2017. Since the details regarding the subject goods have not been carried forward by the applicant or the first principal manufacturer from the earlier law to GST laws, the goods cannot now be brought Into the GST fold. The definition of "supply" as per the Section 7 CGST Act, 2017 is as follows:- 7. (1) For the purposes of this Act, the expression "supply" includes-- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (b) .........................................; (c) the activities specified in Schedule I, made or agreed to be made without a consideration; and (d) the activities to be treated as supply of goods or supply of services as referred to in Schedule II. (2) Notwithstanding anything contained in sub-section (1),-- (a) activities or transactions specified in Schedule III; or (b)........................................... (3) Subject to the provisions of sub-sections (1), an....