AI Drafter 
TaxTMI 
TaxTMI 
2018 (12) TMI 1087
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....GST Act are the same except for certain provisions. 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 Cer....
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....pump assembly Zara-1 19,42,707 29. Core insert for ZARA CAP-40 nos Zara-1 6,19,618 30. Air leak test mechanism Zara-1 7,98,244 31. 23 MM FAL cap fixture for T 1146 Zara-1 35,786 32. 23 MM FAL CAP Nozzle fixture for T 1147 Zara-1 25,562 33. Outlet Switch Fixture for T 1148 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 LI....
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....GST liability. iii. That in support of the said contention we crave leave to refer and rely upon below detailed case laws: 2014 (299) ELT 3 (Mad.)- Metal Weld Electrodes = 2013 (11) TMI 240 - MADRAS HIGH COURT Held: Interpretation of statutes - Legislative intent - It has to be gathered from plain language of particular provision of law when there is no ambiguity in reading it - There is no presumption that particular 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. ....
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....urer from one job-worker to another job-worker without any GST. Accordingly, in absence of any transitional provisions for receipt of capital goods by job worker under erstwhile Central Excise Law & lying with job worker as on appointed date of GST Law, the transactions of subsequent transfer of said items of machines & moulds (being Capital Goods) to another job worker upon request of principal manufacturer under job work process" would not constitute as "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 ....
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....ed to as "M/s. MVVV" for sake of brevity) 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 in light of CBEC Circular No. 637/28/2002-CX dt. 08.05.2002.. That for your reference kindly find attached herewith Circular dt. 08.05.2002 marked as ANNEXURE-A. C. That subsequently the business of MWV 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 "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-....
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....nt of tax, the same are detailed below for your reference: (a) bring back inputs, after completion of job work or otherwise, or capital goods, other than moulds and dies, jigs and fixtures, or tools, within one year and three years, respectively, of their being sent out, to any of his place of business, without payment of tax; (b) supply such inputs, after completion of job work or otherwise, or capital goods, other than moulds and dies, jigs and fixtures, or tools, within one year and three years, respectively, 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 app....
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....40 of 1978.) and the Central Excise Tariff Act, 1985 (5 of 1986.) (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994.)(hereafter referred to as "such amendment" or "amended Act", as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not- (a) revive anything not in force or existing at the time of such amendment or repeal; or (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly 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 r....
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....ondition of 3 years to bring back the capital goods has to prospectively introduced from the date of transfer of capital goods from the 1st Job worker to 2nd job worker. Hence, all the conditions stipulated under section 143 stands complied with in present case for transfer of capital goods by 1st job worker to 2nd job worker under "job work procedure". xii. That notwithstanding anything contained above, no time limit is prescribed in case of moulds and dies, jigs and fixtures, or tools either under the erstwhile law or the present law and hence conditions prescribed under section 143 in case of moulds 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....
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.... That further when capital goods are removed after being used, the manufacturer or provider of output service shall pay an amount equal to the Cenvat credit taken on the said capital goods reduced by the percentage points calculated by straight line method, Implying thereby that when capital goods were removed as such or after being used under the erstwhile Cenvat Credit Rules, 2004 there they were required to reverse the credit. That simultaneously, sec 141 of the CGST Act, dealing with transitional provisions is detailed below for your reference: 141. (1) Where any inputs received at a place of business had been removed 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 tran....
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....s Pvt. Ltd., (herein after referred to as 'second principal manufacturer') including the subject item of capital goods. Thereafter, the name of the company was changed to M/s. Silgan Dispensing Systems India Pvt. Ltd., from M/s. Aphrodite Packaging Solutions Pvt. Ltd., w.e.f. 13.11.2017. Subsequently, the applicant now propose to transfer the said machines/ moulds under the GST regime from the premises of M/s. Shaily Engineering Plastics Limited (hereinafter referred to "job-worker") to another job-worker namely M/s. Vasanth Tools Crafts Pvt. Ltd.(hereinafter referred to "subsequent job-worker". Accordingly, the present Advance Ruling is 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 conside....
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....re originally received by said job-worker under the erstwhile Central Excise Act, 1944 will constitute as "'supply" under GST. The applicant in Point No.15 of the application, have stated that the originally the capital goods i.e. machines & moulds (pertaining to M/s. MWV India Pvt. Ltd., ie. first principal manufacturer) were sent for job work to M/s. Shaily Engineering Plastics Limited (job worker) during the period 2012-13 & 2013-14. Further, the applicant has stated that they proposes to transfer the said capital goods under the GST regime (August, 2017) from the premises of M/s. Shaily Engineering Plastics Limited (job worker) to another job-worker namely 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 provision....
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....(b) When the applicant took over the business of first principal manufacturer in August, 2017, it has to be seen whether the said capital goods are shown in his books of accounts i.e. shown the capital goods as his assets; (c) the applicant after takeover of business from first principal manufacturer, has filed the declaration electronically in FORM GST TRAN-1 and included the said capital goods in his TRAN-1. 8. The claim of the applicant that Section 141(1) of the CGST Act,2017 does not include Capital Goods and hence GST need not be paid while transfer of capital goods from one job worker to another job worker, does not stand. The Section 141(1) of the CGST Act,2017, itself is not 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 ....
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....cer Sh. Manoj Ohekar, Dy. Commr., State Tax, appeared and stated that they will be making their submissions in due course. Jurisdictional Officer, from the Central Tax, Ms. Sharmila Bokey, Supdt., appeared and made written submissions. The application was admitted and called for final hearing on 25.07.2018, Ms. Harpinder Sandhu, Advocate along with Sh. Bharat Rawal, C.A., appeared and made oral and written submission. The issue with respect to capital goods and moulds in the case was not clear and they stated that they would be making further submissions shortly. The Jurisdictional Officer was not present. 05. OBSERVATION We have gone through the facts of the case, documents on record and submissions made 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 Engineerin....
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.... Rule 2(b) of said Rules as those items which are used in the factory of the manufacturer of final products. Moreover, as per Rule 3(1) of the said Rules, credit on inputs is also admissible when inputs are used in the manufacture of intermediate products by a job worker availing the benefit of notification No.214/86-CE dated 25.3.86. Further, in terms of Rule 4(5), capital goods may be sent to a job worker's premises for production of goods. Therefore, in view of the said statutory provisions contained in Cenvat credit Rules, 2001 cited above, Cenvat Credit is admissible only when the inputs or Capital goods are used by the manufacturer within the factory premises [except when inputs or capital goods are used/sent for job work outside 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, wh....
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....s the case may be. And if the inputs or the capital goods were not received back within one hundred eighty days, the manufacturer or provider of output service was required to pay an amount equivalent to the CENVAT credit attributable to the inputs or capital goods by debating the CENVAT credit or otherwise, but the manufacturer or provider of output service could take the cenvat credit again when the inputs or capital goods were received back in his factory. However, the above referred Rule was substituted vide the Budget, 2015 and which read as follows:- "(a)(i) The CENVAT credit on inputs shall be allowed..........., as the case may be: Provided that credit shall also be allowed even if any inputs are directly sent to a job worker.......................; (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 ....
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.... received back from the first job worker even after three years and it is felt that the first principal manufacturer has not paid the Central Excise duty or debit the CENVAT account. Since, the duty has not been paid, the applicant is liable to pay GST while transferring the capital goods from the first job worker to the second job-worker namely M/s. Vasanth Tools Crafts Pvt. Ltd. We find that the provisions of Rule 117 (Transitional Provisions) of the CGST Rules, 2017 provide for tax or duty to be carried forward under any existing law or on goods held in stock on the appointed day. The applicant has not brought on record any details to show that either the first Principal manufacturer or the applicant has submitted the declaration electronically in FORM 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 pur....