Held - The third proviso to Section 16(2) of the CGST Act further specifies that in the event the recipient pays the amount due towards the value of the supply of goods or services or both, along with the tax payable thereon, the recipient would be entitled to avail of the ITC. The second and third provisos to Section 16(2) of the CGST Act make it amply clear that a party is not disentitled to avail the ITC in resp.....

Held - It is clear that CESTAT in its finding (in para 4) noticed the clarification issued by the Board and held that the withholding of performance guarantee in the present case is covered in para 5 (b).

This Court is of the opinion that the argument of the Revenue that performance guarantee amounts withheld by the asseessee are not per se covered by the circular, is incorrect. A clear reference to amounts withheld towards various count.....

Held: We find that this is a case which is covered by Schedule I of the CGST Act. The transaction is between distinct persons. The appellant in the tax invoice raised on their customers mentions that the payment to be made either by Cheque/DD in the name of ‘SANGHVI MOVERS LIMITED’ or directly to the account of SML HO at Pune. The appellant has represented that the receipts and payables are accounted at.....

Held - The provisions of the second proviso to section 16(2) would come into play only where the buyer/ recipient fails to pay the supplier of goods the amount towards the value of the supply. This is not the situation here. The buyer has discharged the GST charged on the undiscounted transaction value at the time of supply. In the circumstances, if the GST charged and paid is not reversed/ refunded in whole or par.....

Held - As per proviso to Section 16(2), the applicant will not be eligible for full input tax credit as they are not paying the full amount to their supplier SML HO as seen in the MOU where payments are netted off against receivables. The applicant in his application has stated that as per proviso to Rule 37, the condition to make actual payment to supplier within 180 days is not applicable to the applicant. Howeve.....

Held - I also note that the above decision has been further followed by the Delhi Bench while passing Final Order no. 57461 dated 25.10.2017 pertaining to the period in dispute from April 2014 to September 2014, as reported in Hindustan Zinc Ltd vs. CCE, Udaipur reported in 2017 – TIOL- 4243-CESTAT-TIOL. Same views have also been taken in the case of Hindustan Zinc Ltd. -v- Commissioner of Central Excise 2014 (34) S.T.R. 440 (Tri - Del.). Fu.....