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GST - Case Laws
Showing 61 to 80 of 156 Records
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2020 (2) TMI 957 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Flat in the Respondent’s project - allegation that the Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the price - contravention of provisions of Section 171 of the CGST Act, 2017 - imposition of penalty - HELD THAT:- It is clear from the plain reading of Section 171 (1) of CGST Act, that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP’s Report that there has been no reduction in the rate of tax in the post GST period; hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST.
The Respondent has profiteered by an amount of ₹ 35,28,744/-(Annex-17) during the period of investigation i.e. 01.07.2017 to 31.12.2018. The above amount of ₹ 35,28,744/- (including 12% GST) that has been profiteered by the Respondent from his home buyers, including Applicant No. 1, shall be refunded by him, along with interest @18% thereon. from the date when the above amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133 (3) (b) of the CGST Rules 2017.
This Authority orders that the Respondent shall reduce the price per unit/ flat to be realized from the other home buyers by an amount commensurate with the benefit of ITC, as provided under Rule 133 (3) (a) of the CGST Rules, 2017.
Imposition of penalty - HELD THAT:- Since the Respondent has denied benefit of ITC to his homebuyers in his Project ‘Edge Towers’ in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus committed an offence under Section 171 (3A) of the above Act, he is liable to be penalized under the provisions of the above Section. Accordingly. a notice be issued to him directing him to explain as to why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
It is clear to us that the Respondent has profiteered in the project ‘Edge Tower’. Therefore, as per the provisions of Section 171 (2) of the CGST Act, 2017, this Authority has reasons to believe that there is a need to verify all the Input Tax Credits of the Respondent so as to arrive at the aggregate profiteering of the Respondent, since profiteering on the part of the Respondent has already been established in the case of “Edge Towers” project of the Respondent as also the fact that supplies from various projects of the Respondent are being made through a single GST registration and the same ITC Pool/Electronic Credit Ledger is being used for all the supplies being made from that registration. Therefore, the Authority, in line with the provisions of Section 171 (2) of the CGST Act, 2017 and as per the amended Rule 133 (5) (a) of the CGST Rules 2017 directs the DGAP to further examine all the other projects of the said Respondent for possible violations of the provisions of Section 171 of the CGST Act 2017 and to submit his Report as per the provisions of Rule 133 (5) (b) of the CGST Rules, 2017.
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2020 (2) TMI 896 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA
Classification of goods - ‘Access Card’ printed and supplied by the Appellant based on the contents provided by their customers - whether classifiable under HSN code 4901 10 20 under the description brochures, leaflets and similar printed matter? - scope of supply - principal supply or not - benefit of N/N. 1/2017-CT (Rate) Sl.No.201 & 1/2017-IT (Rate) Sl.No.201 dated 28.06.2017 and SGST/UTGST Notifications - challenge to AAR decision.
HELD THAT:- The activity undertaken by the Appellant is one which brings into existence a distinct item i.e “Access Card” which is used by the recipient to distribute to the pilgrims. This card is a bar coded multi-colour no-tear card. Printing is an activity which results in the emergence of the “Access card”. Printing is an activity which is ancillary to the emergence of the Access card. The printing activity undertaken by the Appellant is for the purpose of bringing into existence the Access card. The Access card is put to farther use by the recipient M/s Trilok Security Systems in the performance of the Mass Queue Management System services. The intention of the Appellant’s activity is to bring into existence an Access card for which printing is ancillary. The resultant product “Access card” is therefore a product of the printing industry.
The lower Authority has relied on the CBIC Circular No 11/11/2017-GST dated 20.10.2017 to hold that the activity undertaken by the Appellant is a supply of service.
The principal supply in the case of the Appellant is not the printing service but a supply of the Access cards which is a product emerging out of the printing activity. Therefore, the provisions of Para 5 of the Board’s Circular will apply in this case and the printing and supply of Access cards by the Appellant is a supply of goods. We therefore set aside the ruling given by the lower Authority.
The Access cards being printed cards in single sheets are classifiable under sub-heading 4901 10 20 under the category of pamphlets, booklets, brochures, leaflets and similar printed matter. They will fall under the description of the term ‘leaflet’ under 4901 10 20 - In the GST rate Notification No 01/2017 CT (R) dated 28.06.2017, “Brochures, leaflets and similar printed matter, whether or not in single sheets are covered under entry SI.No 201 of Schedule I with rate of 2.5% CGST and 2.5% SGST.
The ruling of AAR set aside.
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2020 (2) TMI 895 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA
Taxability - contributions received from the members in the Administration Account for expending the same for the weekly and other meetings and other petty administrative expenses - club and association services - principles of mutuality - classification of supply - supply of goods or supply of services - HELD THAT:- It is observed that the Appellant is not providing any specific facility or benefits to its members against the membership subscription charged by it, as the entire subscription amount is spent towards meetings and administrative expenditures only. Thus, the Appellant is not doing any business as envisaged under section 2(17) of the CGST Act, 2017.
Once it has been established that the Appellant is not doing any business in terms of section 2(17) of the CGST Act, 2017, it can be deduced that activities carried out by the Appellant would not come under the scope of supply as envisaged under section 7(1) of the CGST Act, 2017.
The impugned activities of the Appellant to be supply, then the membership fee collected by the Appellant, which is purely in the nature of a reimbursement for the meetings and administrative expenditures incurred by the Appellant to sustain and propagate their inherent objectives and programs, would be subject to the double taxation as the amount spent towards the meetings and administrative expenditures is already subjected to GST at the hands of the suppliers of these input services or goods used in the meetings, events and other administrative functions of the Appellant. Thus, doing so would clearly be against the legislature’s intention of the formulation of GST, which certainly does not embrace the idea of double taxation - Once the core issue regarding the taxability of the membership subscription fee has been decided, the answers to the other issues/questions posed by the Appellant vide their advance ruling application will follow and the same do not warrant separate discussions.
The amount collected as membership subscription and admission fees from members is not liable to GST as supply of services.
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2020 (2) TMI 894 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA
Classification of goods - rate of GST - production and making of nutritional powder for special dietary use called Prohance-D Chocolate variant - ‘diabetic food’ or not - appellant has stated that Prohance-D is a nutritional powder -special dietary use for people with Diabetics - though the AAR held that the product is a ‘food’, it held that it is not a diabetic food - Challenge to AAR decision.
HELD THAT:- Prohance-D Chocolate contains some extra special ingredients which differentiate from the normal Prohance. All the ingredients in it especially Isomaltulose, Gum Arabic, Inulins, Myo-Innositol, Sucralose, Fructose are sugar replacements or sugar substitute. Gum Arabic is used as a ‘soluble dietary fiber’. The fact that these products are used in the Prohance-D shows that it is specially meant for people suffering from diabetes and is also marketed as meal replacement for diabetics.
As per the definition of ‘Diabetic food’ in the ‘Dictionary of Food and Nutrition’ by David Bander, it covers foods that has specially formulated for people suffering from diabetics. In the present case, the impugned product though generally contributes to the well being of patient is specially formulated for diabetic patients as is evident from the fact that it contains certain sugar replacements which are not found in the normal Prohance. It is therefore specially directed for diabetics. In such a scenario, whether a normal person not suffering from Diabetes would opt for the Prohance-D variant as a meal replacement? The answer is no.
Such a person would opt for Prohance and not for Prohance-D as it can be normally expected that only a diabetic patient would go for the Prohance-D variant. This makes it very clear that that the product is formulated for diabetic patients, is targeted at that particular segment and therefore, can be termed as a ‘diabetic food’.
It is true that the heading 2106 also covers ‘Compound preparation for making nonalcoholic beverages’ under which heading is the product classified by the AAR. Heading 2106 covers both the descriptions and the Explanatory Notes to the HSN do not make it clear as to which product category the explanatory note given above applies. It is only under Customs Tariff Act that the category for ‘diabetic foods’ is carved out under the Heading 2106. But the very fact that the explanatory note explains what a diabetic food gives an indication as to what is intended to be covered by it. The intention is that foods which contains sugar replacement or sugar substitutes are meant to be covered by heading 2106 and such food may be products like sweets and gums also. In the instant case, the impugned product also contains sugar substitutes and therefore it will be covered by the term ‘diabetic food’.
The AAR has also observed that the product is not a diabetic food because it does not contain high amount of dietary fiber and although the fact that it contains Gum Arabic, Gum Arabic is not a great source of dietary fiber. However, the AAR has not given any references in support of the statement that ‘Diabetic Foods’ have to contain dietary fibre. Also, it is felt that such a qualification would not be required to classify a product as diabetic food. As the HSN also considers food containing sugar replacements as diabetic food, the above product would also classify in it.
The Order of the AAR classifying the product Prohance-D (Chocolate) under heading 21069050 is hereby set aside - The product would instead classify as a diabetic food covered under chapter heading 21069091.
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2020 (2) TMI 893 - CHATTISGARH HIGH COURT
Demand of tax and penalty - Truck carrying Pan Masala - discrepancy in the valuation of goods leading to revenue loss - petitioner submits that if at all if the respondent department intends for confiscation proceeding or to initiate appropriate proceedings, that would be under Sections 129 and 130 of the Rules, 2017, which may be against the owner of the goods and not against the petitioner/driver - HELD THAT:- This court is of the opinion that the petitioner as such as of now would not have any grievance so far as demand notice dated 17.01.2020 (Annexure P/4) is concerned in view of the fact that the owner has subsequently entered appearance in the same proceeding and is contesting the case on merits.
Petition disposed off.
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2020 (2) TMI 892 - APPELLATE AUTHORITY, GST HIMACHAL PRADESH
Levy of IGST with penalty - e-way bill has not been generated for the movement of goods - supply of exempted goods i.e. plants as per Rule 138 (14) (E) of CGST/HPGST Rules, 2017 - scope of “supply” under section 7 of HPGST/CGST Act, 2017 - HELD THAT:- It appears that there is no dispute regarding quantity /quality of goods and further it has been clearly mentioned on the challan that the goods are not for sale only for repair. Since the transaction has no tax implications, the proper office while adjudicating the case has taken into consideration the invoice value of the nine month old purchase invoice for determining the tax and penalty in this case under section 129(1) of the Act. The method used for valuation of transaction is not just and proper as the disputed goods were old and were dispatched for repair.
As there is no doubt that the taxpayer has violated the provisions of the CGST/HPGST Act, 2017, so is liable to pay penalty. The tax payer has transported goods without the cover of proper documents (e way bill is one of them).
The instant appeal is accepted and the order passed by Assistant Commissioner State Taxes & Excise-cum- Proper Officer, North Enforcement Zone Palampur dated 27.11.2018 is set aside - The tax and penalty deposited by the appellant under section 129 (1) may be refunded and a penalty of Rs Ten Thousand only is imposed on the taxpayer under section 122 (1) of the Act.
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2020 (2) TMI 858 - APPELLATE AUTHORITY, GST, HIMACHAL PRADESH
Release of seized goods alongwith the vehicle - E-way Bill found with expired validity - compliance with section 67 of HP GST Act, 2017 and Section 129 of CGST/HPGST, Act, 2017 - willful default or any attempt to evade tax, present or not - HELD THAT:- In the instant appeal cases the goods were consigned from Thelkoloi, Odisha to Anni, Kullu, Himachal Pradesh and travelled a distance of around 2000 kilometers. The goods were accompanied by proper documents transshipped into another vehicle at Chandigarh and the vehicle no. was updated by the appellant and e-way bill was valid at the time of transshipment of the vehicle on 20.11.2018 The validity of the e-way bill expired on midnight of 20.11 2018 and the vehicle was inspected and detained by the respondent at early morning on 21.11.2018. The vehicle was stationary and parked by the road side and driver was called on telephonically and proceedings were initiated u/s 129(1) for expiry of validity of e-way bill. There was no discrepancies either with regard to other documents accompanied the consignment or with the quantity of goods being transported.
Rule 138(10) says that validity of e-way bill may be extended within 8 hours from the time of its expiry but in the instant cases the vehicle was practically apprehended in almost 08 to 09 hours of the expiry of the e-way bill, prima facie it appears that, the appellant has been not given reasonable opportunity to update the Part-A of e-way bill. It was noted that Part-B of the e-way bill was duly filled which puts to rest on any doubts about the intention of the appellant to evade tax.
The non-furnishing of information in Part-B 01 of FORM GST EWB-01 amounts to the e-way bill becoming the not a valid document. It appears that e-way bill is invalid only if Part-B of E-way bill is not filled or a considerable time to update the Part -A of e-way bill has gone by - Similarly, the para no. 5 of the circular says in case a consignment of goods is accompanied with an invoice or any other specify document and also an e-way bill, proceeding u/s 129 of the GST Act may not be initiated. Therefore, imposition of tax/ penalty by the respondent is harsh and unsustainable.
Since the appellant has made minor procedural laps as required to follow under rule 138(10) therefore a penalty of Rs One thousand only (Rs- 1000/- IGST Act ) in each case is imposed on the tax payer under section 125 under the CGST/ HPGST Act 2017 in accordance to CBIC Circular No. 64/38/2018-GST, dated 14th Sep 2018 and the State Circular no. dated 13th March 2019 and may be recovered accordingly - appeal allowed.
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2020 (2) TMI 857 - APPELLATE AUTHORITY, GST, HIMCHAL PRADESH
Release of seized goods alongwith the vehicle - contravention of Rule 138 of CGST and HPGST Rules 2017 - minor error in the e-way bill in entering distance - typographical error - invocation of section 129 (1) of Acts as well - HELD THAT:- It is revealed that due to a typographic error while generating E-way bill, the petitioner mentioned approx distance between Puducherry to Himachal Pradesh as 20 Kilometers instead of 2000 Kilometers. As a result, a validity of one day has been calculated by the E-way bill portal instead of twenty days and the E-way bill subsequently got expired on the very next day i.e on 08.09.2018. The consignment was intercepted on dated 15th Sep, 2018 and thereby a tax/penalty has been imposed under section 129 of HPGST/CGST Act, 2019 for contravention of Rule 138.
The petitioner has placed reliance on the judgment of SABITHA RIYAZ VERSUS THE UNION OF INDIA AND OTHERS. [2018 (11) TMI 213 - KERALA HIGH COURT] wherein Hon'ble Kerala High Court directed the State GST officials to consider release of goods in view of the CBIC Circular No. 64/38/2018-GST, dated 14th sep 2018 since the discrepancy in the E-way Bill was due to a typographical error.
GST Council vide circular No 64/38/2018 dated 14th September, 2018 and State government vide circular No DT 13.03.2019 effective w.e.f 14.09.2018, in para 5 provides that in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated in case of minor mistakes like Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill or Error in the address of the consignee to the extent that the locality and other details of the consignee are correct.
The mistake in entering distance in E-way bill is a typographic error and may be treated as a minor one. Therefore, the appeal of the appellant is accepted and the order of the Assistant Commissioner State Taxes & Excise-Cum proper officer Baddi Circle-II is set aside.
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2020 (2) TMI 854 - AUTHORITY FOR ADVANCE RULING - UTTARAKHAND
Input Tax Credit (ITC) - Interpretation of statute - meaning of word 'lapse' in Notification No. 20/2018-Central Tax (Rate) - Whether the meaning of word 'lapse' in Notification No. 20/2018-Central Tax (Rate) would mean lapse for refund or lapse for utilization of input tax credit for payment of output tax liability? - HELD THAT:- The refund is not available to accumulated input tax credit due to inverted duty structure in respect of specified inputs which remain unutilized. The inverted duty structure means rate of tax on inputs being higher than the rate of tax on the output supplies of such goods. Also vide notification dated 26-7-2018 proviso to Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017 was inserted vide which applicability of notification dated 28-6-2017 was rescinded to the extent of input tax credit accumulated on supplies received on or after the 1st day of August, 2018, in respect of goods mentioned at Serial Numbers 1, 2, 3, 4, 5, 6, 6A, 6B, 6C and 7 supra.
The notifications had been issued under clause (ii) of the proviso to subsection (3) of Section 54 of the Act. Section 54 of the Act provides for refund of accumulated credit on inputs on account of inverted duty structure, i.e., GST rate on inputs being higher than the GST rates on finished goods. However, proviso (ii) to Section 54(3) provides that in respect of notified goods, the refund of such accumulated input tax credit shall not be allowed. Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017 has been issued in terms of this provision and it inter alia prescribes that refund of accumulated ITC on account of inverted duty structure shall not be allowed in respect of goods - the proviso has to be read with the principal part of the notification. A comprehensive reading of amended notification makes it clear that the proviso seeks to lapse only such input tax credit which is the subject matter of principal notification, i.e. accumulated credit on account of inverted duty structure in respect of notified goods. Thus in terms of amended notification, the input tax credit on account of inverted duty structure lying in balance after payment of GST for the month of July (on purchases made on or before the 31st July, 2018) shall lapse.
We observe that the proviso has to be read with the principal part of the notification. A comprehensive reading of amended notification makes it clear that the proviso seeks to lapse only such input tax credit which is the subject matter of principal notification, i.e. accumulated credit on account of inverted duty structure in respect of notified goods. Thus in terms of amended notification, the input tax credit on account of inverted duty structure lying in balance after payment of GST for the month of July (on purchases made on or before the 31st July, 2018) shall lapse.
The said notifications are exclusively dealt with the refund of accumulated input tax credit on account of inverted duty structure Only. When a requisite notification has been issued under a particular section, the provisions of said section spring into operation and an assessee, who is covered by the provisions of that section, is entitled to seek benefits thereunder.
Notification No. 20/2018-Central Tax (Rate) dated 26-7-2018 deals with refund of inverted duty structure only.
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2020 (2) TMI 853 - BOMBAY HIGH COURT
Cancellation of registration of petitioner - CGST Act - business not conducted at the Place of Business mentioned in the registration profile - HELD THAT:- The impugned order dated 1 January 2020 cancelling the registration of the Petitioner is set aside and the proceedings are restored to the stage of issuance of show cause notice. The Petitioner will appear before the State Tax Officer as on the date specified by the State Tax Officer.
Petition disposed off.
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2020 (2) TMI 852 - GUJARAT HIGH COURT
Delegation of powers u/s GST - delegation of powers by Commissioner of State Tax to the Special Commissioner of State Tax and the Additional Commissioners of State Tax - Legality and validity of the Notification No.EST/1/Jurisdiction/B.2168 dated 5th July 2017 - HELD THAT:- The delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in the Black’s Law Dictionary as “the act of entrusting another with the authority by empowering another to act as an agent or representative”. In P.Ramanatha Aiyar’s, The Law Lexicon, “delegation is the act of making or commissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself”.
In the impugned notification it has been stated that the functions delegated shall be under the overall supervision of the Commissioner. When the Commissioner stated that his functions were delegated subject to his overall supervision, it did not mean or should not be construed as if he reserved to himself the right to intervene to impose his own decision upon his delegate. The words in the last part of the impugned notification would mean that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action.
Once the powers are delegated for the purpose of Section 69 of the Act, the subjective satisfaction, or rather, the reasonable belief should be that of the delegated authority
The principle is: devolving power is permitted in the cases where the nature, scope, and purpose of the power in legislation means that it is unlikely that the Parliament intended that the power is to be exercised personally, and the only practical way the power can be exercised is by the officers who are responsible to the person (who has the power by legislation).
This is also known as the principle of agency – where the agent is acting in the principal’s name.
In the case on hand, Section 5(3) of the Act specifically confers power upon the Commissioner to delegate his functions.
The power under Section 69 of the Act can be exercised by the authority upon whom the power is delegated provided the delegatee has reasons to believe that the assessee has committed offence under Section 132 of the Act. Therefore, the condition precedent, i.e. 'reasonable belief', for the purpose of exercise of power under Section 69 of the Act remains the same.
Application dismissed.
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2020 (2) TMI 797 - KERALA HIGH COURT
Detention of goods alongwith vehicle - only reason for detention is that the vehicle number in Part B of the e-way bill mismatches with the actual vehicle number - HELD THAT:- It is ordered that the goods and vehicle detained pursuant to Ext.P4 series of orders, shall be released by the 1st respondent to the petitioner on the petitioner furnishing bank guarantee for the value of the amounts shown in those orders.
Petition disposed off.
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2020 (2) TMI 796 - KERALA HIGH COURT
Validity of order passed against a deceased - Section 93 of CGST Act not followed - service of SCN - HELD THAT:- It appears that the respondent does not raise any serious dispute as to the factual assertion made by the petitioner that the assessee concerned (who appears to be the paternal grandfather of the petitioner herein) is said to be one of the legal hairs of the deceased assessee as the petitioner's father who is the son of the assessee has died as early as on 27.03.2018 as evident from Ext.P3 death certificate issued by the Registrar of Births and Deaths, which is much before the rendering of the impugned Ext.P3 series of the assessment orders issued in March 2019 - Since, that appears to be the undisputed position, it is only to be held that Ext.P3 series of assessment orders rendered as late as in March 2019 has been passed as against an assessee who is already dead by then and therefore, the impugned assessment orders is a nullity in the eye of law.
The 1st respondent will be at liberty to take fresh action in the said assessment proceedings, after ascertaining from the competent Revenue Officials as to who all are the legal representatives or legal heirs of the said deceased assessee and then the respondent will be at liberty to render reasonable opportunity of being heard to such legal representatives and then finalise the assessment proceedings in the manner known to law.
Petition disposed off.
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2020 (2) TMI 795 - MADRAS HIGH COURT
Reopening of portal for filing of Form Tran-1 - transitional credit - transition to GST regime - HELD THAT:- A Division Bench of the Gujarat High Court in M/S SIDDHARTH ENTERPRISES THROUGH PARTNER MAHESH LILADHAR TIBDEWAL VERSUS THE NODAL OFFICER [2019 (9) TMI 1320 - GUJARAT HIGH COURT] has considered the question as to whether a claim for transition of credit is only a procedural requirement or a mandatory one. After an exhaustive discussion of the matter, the prayer of the petitioner therein was acceded to, the Bench holding that Cenvat credit earned under the erstwhile Central Excise Law is the property of the writ-applicants and it cannot be appropriated for merely failing to file a declaration in the absence of Law in this respect. It could have been appropriated by the government by providing for the same in the CGST Act but it cannot be taken away by virtue of merely framing Rules in this regard.
(i) the era of GST is in a nascent stage and both the Department as well as assessees are still learning the ropes (ii) a rigid view should thus not be taken in matters involving procedural requirements such as availment of credit; (iii) it is common knowledge that assessees pan India are facing difficulties in accessing the system and uploading Forms to seek transition of credit, and (iv) three Division Benches have taken the view that the time lines set out for transition of credit cannot be very firmly enforced in so far as they are not mandatory.
The respondents were directed to permit the petitioner to file the Declaration in Form Tran-1 so as to enable them to claim transitional credit of eligible duties as prayed for - writ petition is disposed directing the respondent to permit the petitioner to access the portal for uploading of Tran-I, forthwith.
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2020 (2) TMI 794 - MADRAS HIGH COURT
Levy of Interest on belated payments - Section 50 of CGST Act - whether in a case, where credit is due to an assessee, payment by way of adjustment can still be termed 'belated' or 'delayed'? - HELD THAT:- The use of the word 'delayed' connotes a situation of deprival, where the State has been deprived of the funds representing tax component till such time the Return is filed accompanied by the remittance of tax. The availability of ITC runs counter to this, as it connotes the enrichment of the State, to this extent. Thus, Section 50 which is specifically intended to apply to a state of deprival cannot apply in a situation where the State is possessed of sufficient funds to the credit of the assessee.
The proper application of Section 50 is one where interest is levied on a belated cash payment but not on ITC available all the while with the Department to the credit of the assessee. The latter being available with the Department is, thus, neither belated nor delayed.
Proviso to Section 50(1), as per which interest shall be levied only on that part of the tax which is paid in cash, has been inserted with effect from 01.08.2019, but clearly seeks to correct an anomaly in the provision as it existed prior to such insertion. It should thus be read as clarificatory and operative retrospectively.
Petition allowed - decided in favor of petitooner.
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2020 (2) TMI 743 - CHHATTISGARH HIGH COURT
Review petition - Appointment of 'Proper Officers' without any notification in the gazette as envisaged under Section 167 read with Section 168 of the Central Goods and Services Tax Act, 2017 - Sustainability of Annexure P/2 Gazette Notification dated 01.07.2017 - Annexure P/1 Circular dated 05.07.2017 - rectification of mistake - error apparent on the face of record - HELD THAT:- After the hearing held on 16.10.2019, they were taken up reserving judgment. In the course of working up the position, this Court came across a 'Corrigendum Notification dated 29.07.2019' published in the official Gazette (as noted in paragraph 21 of the judgment) whereby the mistake occurred in Annexure P/2 Notification dated 01.07.2017 (to the effect that the said Notification was issued by the Board) was corrected as issued 'by the Government'.
The contention raised by the Respondents as to the circumstances under which the appointment of Proper Officers in different parts of the country is necessitated; the contention that the scope and applicability of Section 6 of the CGST Act is more with reference to 'assessment', which is not the purpose of appointing Proper Officers in different parts of the country conferring power to detect mischief/foul-play (wherever that is committed by unscrupulous assessees) and the specific contention that if at all there is initiation of simultaneous proceedings by two different officers in respect of the same cause of action, it will always be open for the assessee to bring it to the notice of the officer who has taken parallel action to avoid parallel proceedings, have been upheld.
Since this Court has upheld that above contentions of the Respondents, repelling the contentions raised by the Writ Petitioners to the contrary, there is no error apparent on the face of record, to invoke the power of review.
It is quite evident that the attempt of the Review Petitioners is only to have a "re-hearing" of the matter, which is not permissible in exercise of the power of review. The 'review power' can be invoked only when there is any 'error apparent on the face of record' and it is not a substitute for appeal as made clear - because of non-bringing of the 'Corrigendum Notification' dated 29.07.2019 to the notice of this Court and in making incorrect submissions, much of the Court's time has already been wasted by the Petitioners, which could have been utilised for other fruitful purposes.
Petition dismissed.
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2020 (2) TMI 742 - GUJARAT HIGH COURT
Levy of penalty and confiscation of goods - section 129(1) of the GST Act - writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount - HELD THAT:- It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of SSYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT].
It is now for the applicant to make good his case that the show cause notice, issued in Form GST-MOV-10, deserves to be discharged - Application disposed off.
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2020 (2) TMI 741 - GUJARAT HIGH COURT
Levy of penalty and confiscation of goods - section 129(1) of the GST Act - writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount - HELD THAT:- It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of SSYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT].
It is now for the applicant to make good his case that the show cause notice, issued in Form GST-MOV-10, deserves to be discharged - Application disposed off.
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2020 (2) TMI 740 - GAUHATI HIGH COURT
GST evasion / input tax credit (ITC) - Jurisdiction - power of inspection, search and seizure of Police / authorities - input tax credit availed in excess of the entitlements - Section 67 of the GST Acts - HELD THAT:- From the provisions of Section 67 of the AGST Act and 100 and 101 of the Customs Act, a process for search, seizure, confiscation etc for violating any of the provisions of the AGST Act or the Customs Act can only be initiated upon having reasons to believe by the proper or appropriate officer that a person concerned was involved in violation of any of the provisions of the GST Acts or the Customs Act - In the instant case, the documents made available on record so far as it relates to violation of the provisions of the AGST Act are not being relied upon by the respondents to indicate any such violation of the provisions of the AGST Act. What is contended is that some such documents are either fraudulent or it contains forged signatures resulting in offences under Sections 120(B)/420/467/471 of the IPC.
If the authorities under the AGST Act of the State of Assam are of the view that the appellants are required to be proceeded with or prosecuted under the AGST Act, it would be appropriate to invoke the provisions of Section 67 of the AGST Act and proceed accordingly. But without invoking the provisions of Section 67 of the AGST Act and following the procedure prescribed therein, it would be inappropriate to allow the police authorities of Assam to continue with the detention and the seizure of the trucks containing the areca nuts on the plea that the appellants have violated some or any of the provisions under the AGST Act.
The detained/seized goods be retained by the police authorities of Assam for a period of seven days from today. In the meantime, the GST authorities of the Government of Assam, the police authorities of the Government of Assam and the Customs authority of the Customs Department, Government of India shall take their respective decisions on how to proceed with the matter of the detained/seized trucks of areca nuts within the period of seven days - Appeal disposed off.
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2020 (2) TMI 673 - ALLAHABAD HIGH COURT
Increase in tax rate from 2% before GST regime to 12% post GST - works contract - Scope of contract between the parties - Restraint on respondent to deduct any amount more than 2% in the name of tax from the bill of the writ petitioner - HELD THAT:- There cannot be any manner of doubt whatsoever that the writ petitioner would be subject to tax as per the GST Act, which was enacted on 12th April, 2017. The petitioner has also received payment for work done. The prayer in the writ petition, therefore, cannot be considered by this Court.
Petition dismissed.
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