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GST - Case Laws
Showing 21 to 40 of 1693 Records
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2020 (12) TMI 1218 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Anticipatory Bail - purchase of Cigarettes - Input Tax Credit (ITC) availed of paid tax at the time of purchasing of cigarettes and was utilizing it for the sale of cigarettes - HELD THAT:- The petitioner is directed to appear before the competent authority on 21.12.2020 at 10.00 a.m. or any other date or time as fixed by the competent authority.
List again on 27.01.2021.
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2020 (12) TMI 1207 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Scope of Advance Ruling application - Classification of goods - Flavored Milk - to be classified under HSN 0402 99 90 or under 2202 99 30 or under any other Chapter? - HELD THAT:- It is an undisputed fact that the applicant supplies the impugned product under the brand name “Nandini”, to the owner of the said brand M/s. KMF, against whom an offence case is pending before DGGI, Bangalore.
The applicant themselves admitted that M/s KMF hold 90% shares and hence have management / administrative control over the applicant. M/s KMF are the owners of ‘Nandini’ brand, against whom an offence case is pending before DGGI, Bengaluru on classification of flavoured milk. Thus it is very clear that the applicant, being the job worker to M/s KMF, becomes part of M/s KMF, as they also supply the same product of ‘flavoured milk’ and hence is bound to oblige the conclusion of the proceedings in this regard. Hence the pendency of the proceedings automatically applies to the applicant also. Therefore the instant application is liable for rejection, under first proviso to Section 98(2) of the CGST Act 2017.
The application is rejected as “inadmissible”, in terms of first proviso to Section 98(2) of the CGST Act 2017.
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2020 (12) TMI 1206 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
Scope of Advance Ruling application - Classification of goods - Flavored Milk - to be classified under HSN 0402 99 90 or under 2202 99 30 or under any other Chapter? - HELD THAT:- It is an undisputed fact that the applicant supplies the impugned product under the brand name “Nandini”, to the owner of the said brand M/s. KMF, against whom an offence case is pending before DGGI, Bangalore.
The applicant themselves admitted that M/s KMF hold 90% shares and hence have management / administrative control over the applicant. M/s KMF are the owners of ‘Nandini’ brand, against whom an offence case is pending before DGGI, Bengaluru on classification of flavoured milk. Thus it is very clear that the applicant, being the job worker to M/s KMF, becomes part of M/s KMF, as they also supply the same product of ‘flavoured milk’ and hence is bound to oblige the conclusion of the proceedings in this regard. Hence the pendency of the proceedings automatically applies to the applicant also. Therefore the instant application is liable for rejection, under first proviso to Section 98(2) of the CGST Act 2017.
The application is rejected as “inadmissible”, in terms of first proviso to Section 98(2) of the CGST Act 2017.
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2020 (12) TMI 1205 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of flat - allegation that the Respondent had not passed on the benefit of additional Input tax Credit (ITC) to the Applicants as well as other home buyers who had purchased Flats - violation of the provisions of Section 171 (1) of the Act - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of additional Input tax Credit (ITC) to the above Applicants as well as other homebuyers who have purchased them in his Project “Green Court” for the period from 01.07.2017 to 31.08.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017 - It is also revealed from the perusal of the CGST Act and the Rules framed under it that the Central Government vide Notification No. 01/2020-Central Tax dated 01.01.2020 has implemented the provisions of the Finance (No. 2) Act, 2019 from 01.01.2020 vide which sub-section 171 (3A) was added in Section 171 of the CGST Act, 2017 and penalty was proposed to be imposed in the case of violation of Section 171 (1) of the CGST Act, 2017.
Since, no penalty provisions were in existence between the period w.e.f. 01.07.2017 to 31.12.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 04.02.2020 issued to the Respondent for imposition of penalty under Section 171 (3A) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (12) TMI 1204 - NATIONAL ANTI-PROFITEERING AUTHORITY
Purchase of flat - Vaseline VTM 400 ml - allegation that the Respondent had not passed on the benefit of reduction in the rate of tax to the Applicant by way of commensurate reduction in the price of the product - violation of the provisions of Section 171 (1) of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of reduction in the rate of tax to the Applicant No. 1 and other customers by way of commensurate reduction in the price of the product “Vaseline VTM 400 ml” for the period from 15.11.2017 to 31.01.2018and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017 - It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoice while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefits of reduction in the rate of tax and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act.
Penalty - HELD THAT:- Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.01.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 13.09.2018 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (12) TMI 1203 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - Respondent had not passed on the benefit of rate reduction to the Applicant as well as other customers as per the provisions of Section 171 (1) of the CGST Act, 2017 - penalty - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of rate reduction to the above Applicant as well as other customers who had purchased various items from him during the period from 15.11.2017 to 31.01.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) was not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the Act.
Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.01.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 01.10.2018 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (12) TMI 1202 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supply of Services by way of admission to exhibition of cinematograph films where price of admission ticket is one hundred rupees or less - allegation that the reduction in the rate if GST not passed on - contravention of section 171 of CGST Act - penalty - Whether there was any reduction in the GST rate and whether the benefit of reduction in the rate of tax was passed on or not to the recipients as provided under Section 171 of the CGST Act, 2017? - HELD THAT:- It has been revealed that the Central and the State Governments had reduced the rates of GST on “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was above one hundred rupees” from 28% to 18% and “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was one hundred rupees or less” from 18% to 12% w.e.f. 01.01.2019, vide Notification No. 27/2018- Central Tax (Rate) dated 31.12.2018, the benefit of which was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the above Act.
The Respondent has resorted to profiteering by way of either increasing the base prices of the service while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on “Services by way of admission to exhibition of cinematograph films where price of admission ticket is one hundred rupees or less” from 18% to 12% w.e.f. 01.01.2019 to 30.06.2019. On this account, the Respondent has realized an additional amount to the tune of ₹ 2,23,850/- from the recipients which included both the profiteered amount and GST on the said profiteered amount. Thus the profiteering is determined as ₹ 2,23,850/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017. The Respondent is therefore directed to reduce the prices of his tickets as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients.
The Respondent is also directed to deposit the profiteered amount of ₹ 2,23,850/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. Since the recipients, in this case, are not identifiable, the Respondent is directed to deposit the amount of profiteering of ₹ 1,11,925/- in the Central Consumer Welfare Fund (CWF) and ₹ 1,11,925/- in the Telangana State CWF as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest. The above amount shall be deposited within a period of 3 months from the date of receipt of this Order failing which the same shall be recovered by the Commissioner CGST and SGST as per the provisions of the SGST Act, 2017.
This Authority as per Rule 136 of the CGST Rules 2017 directs the Commissioners of SGST Telangana to monitor this Order under the supervision of the DGAP by ensuring that the amount profiteered by the Respondent as Ordered by the Authority is deposited in the respective CWFs. A report in compliance of this Order shall be submitted to this Authority by the DGAP within a period of 3 months from the date of receipt of this Order - As per the provisions of Rule 133 (1) of the CGST Rules, 2017 this Order was required to be passed within a period of 6 months from the date of receipt of the Report furnished by the DGAP under Rule 129 (6) of the above Rules. Since the present Report has been received by this Authority on 30.10.2019, this Order was to be passed by 29.04.2020. However, due to the prevalent pandemic of COVID-19 in the country, this Order could not be passed before the above date due to force majeure. Accordingly, this Order is being passed today on 17.11.2020 in terms of the Notification No. 65/2020- Central Tax dated 01.09.2020 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Indirect Taxes and Customs under Section 168 A of the CGST Act, 2017.
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2020 (12) TMI 1165 - GUJARAT HIGH COURT
Attachment of cash credit account - Section 83 of the GST Act - the interest of the revenue could be said to be secured for the time being with the provisional attachment of the immovable properties - HELD THAT:- So far as the provisional attachment of the cash credit account maintained with the Canara Bank is concerned, the same should not continue. This Court in many matters has taken the view that the cash credit account cannot be attached in exercise of the power under Section 83 of the GST Act. We take notice of the fact that there are two current accounts maintained with the Canara Bank and rest are the Fixed Deposits.
We are not touching the Fixed Deposits for the time being. We are of the view, having regard to the balance in one of the current account that the writ applicant should be permitted to operate the current account - we intend to pass an ad- interim order directing that the Cash Credit Account two accounts at Sr. Nos.1 and 2 are ordered to be defreezed. The provisional attachment is ordered to be lifted.
Post this matter along with the Special Civil Application No. 11209 of 2020 in the third week of January, 2021.
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2020 (12) TMI 1164 - GUJARAT HIGH COURT
Grant of Regular Bail - illegal and wrongful availment of input tax credit - Revenue submits that the amount illegally availed is huge running into more than ₹ 9.00 crores - HELD THAT:- Perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail on executing a personal bond of ₹ 10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions - Application allowed.
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2020 (12) TMI 1163 - PATNA HIGH COURT
Principles of Natural Justice - Validity of Demand notice - HELD THAT:- As mutually agreed, the instant petition stands disposed of in terms of judgment M/S GAYA MARKETING VERSUS THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY CUM COMMISSIONER, THE JOINT COMMISSIONER OF STATE TAXES, THE ASSISTANT COMMISSIONER OF STATE TAXES, GAYA. [2020 (1) TMI 1355 - PATNA HIGH COURT] and the directions contained therein shall also govern the instant case mutatis mutandi - It was held in the case that The order to be not assigning any reasons whatsoever. Also, it is noticed that prior to passing of the impugned order, no opportunity of hearing was ever afforded to the writ-petitioner. As such, there was gross violation of principles of natural justice in passing of the impugned order, which is hereby quashed.
Application disposed off.
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2020 (12) TMI 1162 - GUJARAT HIGH COURT
Grant of Regular Bail - alleged input evasion is to the extent of ₹ 29 lakh and odd in respect of Shringar Jewellers - HELD THAT:- Without expressing opinion on merits and arguments canvassed by the learned advocates on either side, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail.
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2020 (12) TMI 1120 - GUJARAT HIGH COURT
Indefeasible right vis-a-vis the benefit of the ITC - Rule 86A of the CGST Rules inserted vide the Notification No.75/2019-CT dated 26th December, 2019 in the CGST Rules - power and procedure for blocking the input tax credit (ITC) in the electronic credit ledger of a registered person during any inquiry or investigation - scope of exercise of power under Rule 86A of the Rules - whether the authority concerned is empowered to retain any amount deposited by a registered person during any inquiry or investigation in the absence of any confirmed liability against the assessee and, more particularly, without issuance of a show-cause notice and assessment/adjudication order imposing any tax liability on the assessee?
HELD THAT:- the Supreme Court categorically considered the aspect of availing the credit and utilization of credit as two different stages and declared that the utilization of the accrued credit is a vested right. No vested right accrues before taking credit. - the vociferous submission of Mr. Dave, the learned counsel appearing for the writ applicants as regards the indefeasible right to avail the ITC vis-a-vis Rule 86A of the Rules should fail and hereby fails.
Scope of powers under Rule 86A - Rule 86A talks about “reason to believe” which is necessary to be formed for the purpose of blocking the input tax credit in cases of inquiry or investigation into fraudulent transactions. Any opinion of the authority to be formed is not subject to objective test. The language leaves no room for the relevance of an official examination as to the sufficiency of the ground on which the authority may act in forming its opinion - there must be material, based on which alone the authority could form its opinion that it has become necessary to block the input tax credit pending an inquiry or investigation into the fraudulent transactions of fake/bogus invoices. The existence of relevant material is a pre-condition to the formation of the opinion.
In the absence of any cogent or credible material, if the subjective satisfaction is arrived at by the authority concerned for the purpose of blocking the ITC in exercise of power under Rule 86A of the Rules, then such action would definitely amount to malice in law. Malice, in its legal sense, means such malice as may be assumed from the doing of a wrongful act intentionally but also without just cause or excuse or for want of reasonable or probable cause. Any use of discretionary power exercised for an unauthorized purpose amounts to malice in law. It is immaterial whether the authority acted in good faith or bad faith.
Thus, it cannot be said that the inquiry or investigation initiated as regards the fake/bogus invoices for the purpose of ITC is malafide or based on absolutely no materials. From what has been stated in the reply affidavit filed on behalf of the respondents, it could be said that prima facie, there is something which the Revenue has noticed and, therefore, are looking into the same before taking any final call as regards the claim of the writ applicants to avail the ITC. Even, otherwise, Rule 86A provides that on expiry of the period of one year, the restriction shall cease to have effect from the date of imposition of such restriction.
Whether Rule 86A of the Rules contemplate any passing of a specific order with an obligation to communicate the same to the affected person so that such person can take recourse to any legal remedy available to him? - HELD THAT:- Section 83 provides for order in writing. In other words, if the Commissioner is of the opinion that for the purpose of protecting the interest of the Government Revenue, it is necessary to attach provisionally any property including bank account, he may, by order in writing, do so. Even Section 83 of the Act talks about order to be passed in writing on the basis of the reasonable belief of the concerned authority - it is clear that the provisional attachment in terms of Section 11DDA and Section 73C could be made only after issuance of a show-cause notice.
Rule 86A casts an obligation upon the authority concerned to form an opinion but is silent with regard to passing of any specific order assigning prima facie reasons for invoking Rule 86A. To this extent, the Government needs to look into the matter and issue appropriate guidelines and also lay down some procedure to be followed for the exercise of power under Rule 86A of the Rule - In the case on hand, the inquiry, so far, has revealed a prima facie case for the respondents to exercise the power under Rule 86A of the Rules. Although, no specific order has been passed and communicated to the writ applicants in this regard, yet in the facts of the present case, it cannot be said that exercise of power under Rule 86A for the purpose of blocking the ITC is mala fide or without any application of mind.
There are highly disputed questions of fact as regards the debit of the ITC from the electronic credit ledger. Indisputably, the investigation is in progress. A prima facie case could be said to have been made out against the writ applicants. However we may only say that the investigation cannot continue for an indefinite period of time. Almost more than a year has elapsed and, in such circumstances, the authorities concerned should arrive at some conclusion or the other. Even Rule 86A of the Rules prescribes one year time limit - the respondents are directed to complete the investigation within a period of four weeks from the date of the receipt of this order and take an appropriate decision whether any case has been made out for issue of show-cause notice under Section 74 of the Act or not.
Application dismissed.
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2020 (12) TMI 1119 - ORISSA HIGH COURT
Grant of Bail - allegation of bogus input tax credit, secured on the strength of fake and fabricated invoices without supply of any physical goods to such other existing and non-existing firms - Section 132(1)(i) of the OGST Act, 2017 - HELD THAT:- The evidence is largely based on documentary evidence. Once the charge-sheet has been filed unless antecedents to the contrary can be demonstrated, the presence of the accused may not be required to take the prosecution to its logical conclusion. The object of the law in question is to act as a deterrent in blocking loopholes in an otherwise nascent law which concerns itself with the collection of revenue for the State. Section 132(1)(i) of the Act provides that in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilized or the amount of refund wrongly taken, exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine. Similarly, Section 132(ii) of the Act provides a punishment with imprisonment for a term which may extend to three years and with fine when the amount in question is greater than ₹ 2 crores but does not exceed ₹ 5 crores.
There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others - Several High Courts have also opined that while granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public and the State and other similar considerations and have granted bail to the persons accused under section 132 of the CGST Act.
The petitioner is directed to be released on bail on furnishing a bail bond of ₹ 5,00,000/- with one surety for the like amount to the satisfaction of the learned trial court with the conditions imposed - petitioner shall co-operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial - bail application allowed.
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2020 (12) TMI 1118 - GUJARAT HIGH COURT
Jurisdiction - proper officer to issue SCN - argument canvassed is that the proper officer under the provisions of the CGST Act, 2017 is the Joint Commissioner, Central GST, Delhi South Commissionerate, who not only issued summons to the writ applicant under Section 70 of the CGST Act, 2017, but also granted the permission to search the business premises of the writ applicant on the basis of his reasonable belief - HELD THAT:- Let Notice be issued to the respondents, returnable on 11th January 2021. Till the next date of hearing, the respondents Nos.2 and 6 respectively shall not take any coercive action against the writ applicant.
Mr. Chetan Pandya, the learned counsel on record appearing for the writ applicant shall serve one copy of the entire paper book to Mr. Devang Vyas, the learned Additional Solicitor General of India so that appropriate instructions can be obtained and the Court can proceed with the hearing of the matter on the next date i.e. 11th January 2021.
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2020 (12) TMI 1117 - GUJARAT HIGH COURT
Refund of ITC of CGST and SGST - N/N. 26/2017 Custom, dated 29.06.2017 - HELD THAT:- After the present writ-application was filed on 20th December 2020, Section49 of the CGST came to be amended w.e.f. 01/02/2019 and new Section49A and Section49B were inserted in the said Act. By virtue of power under Section49B, Rule88A was inserted w.e.f.29/03/2019 in the CGST Rules vide Notification No.16/2019CT, dated 29/03/2019. In such circumstances, w.e.f. 01/02/2019, the ITC available on account of IGST has to be first utilized for the payment of IGST or CGST or SGST. This provision was amended w.e.f.01/02/2019, but the GST portal started functioning as per the amended provisions w.e.f.01/06/2019. Therefore, w.e.f. 01/06/2019, the accumulated ITC of IGST of ₹ 4,47,43,682/- (Additional Customs duty paid by the writ-applicants, EPCG holder) started getting utilized automatically during the pendency of the petition.
The ITC of CGST and SGST started accumulating correspondingly. In such circumstances, as on date on account of such amendment in operation, the writ-applicants have Nil balance of IGST in its electronic credit ledger and the IGST balance is converted into CGST and SGST. In other words, the balance of CGST and SGST got artificially inflated as a result of the appropriation of IGST credit.
The respondents are directed to sanction and pay the refund of ₹ 4,47,43,681/after first reversing the entries of utilization of the subject credit and debiting the said amount from the credit ledger consequently available to the writ-applicant - Application allowed.
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2020 (12) TMI 1116 - GUJARAT HIGH COURT
Refund of IGST - Zero Rated Supplies - it appears that the writ-applicant had claimed higher duty drawback - Interest on the amount of refund from the date of shipping bill till the date on which the amount of refund is paid to the petitioner - Circular No.37/2018 Customs dated 09/10/2018 - stance of the respondents is that the condition no.7 of the notification dated 31/10/2016 mentions that if any exporter claims drawback under Column (4) and (5), it means that the drawback includes the Customs, Central Excise and Service Tax component and it's called the Higher drawback - HELD THAT:- The Circular No.37/2018 Customs, dated 09/10/2018 referred by the Competent Authority would apply only to the cases, where the exporters have availed the option to take drawback at the higher rate in place of the IGST refund out of their own volition. In the instant case, the assessee had never availed the option to take drawback at higher rate in place of the IGST refund. In such circumstances, the Circular is not applicable to the facts of the present case - Even as per the Condition No.7 of the Notification 131/2016–Cus. (N.T.) dated 31/10/2016, if the rate indicated in the columns (4) i.e. higher duty drawback and (6) i.e. lower duty drawback are the same, then it shall necessarily imply that the same pertains only to the Customs component and is available irrespective of whether the exporter has availed of the CENVET facility or not.
The petitioner had exported Rope Making Machine HSN Code 84794000 which attracts the same rate under both the columns (4) & (6) respectively i.e. 2 per cent. Thus it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST.
In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the GST and thus, the writ-applicant cannot be said to have availed double benefit i.e. of the IGST refund and higher duty drawback.
The respondents are directed to immediately sanction the refund towards the IGST paid in respect to the goods exported i.e.'Zero Rated Supplies' made vide the shipping bills - Petition allowed - decided in favor of petitioner.
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2020 (12) TMI 1087 - APPELLATE AUTHORITY FOR ADVANCE RULING, KERALA
Exemption from GST - supply of, services viz. execution of the civil works of Pazhassi small hydro electric project - Whether Kerala State electricity Board Ltd would fall under any of the categories viz. Central Government, State Government, Union territory, a local authority, a Government authority or a Government entity for the purpose of the said exemption - whether the said services shall attract concessional rate of SGST also @6% in terms of notification No. SRO 370/2017 dated 30.06.2017 since the CGST statutory provisions are pari materia With State GST provisions? - HELD THAT:- Kerala State Electricity Board Ltd is a company incorporated under the Companies Act, 1956 by the Government of Kerala for carrying out the business of Generation, Transmission and Distribution of electricity in the State of Kerala. It is the successor entity of the Kerala State Electricity Board which was constituted by the Government of Kerala by Order no. EL1- 6475/56/PW dated 07.03.1957 under the Electricity (Supply) Act, 1948 for carrying out the business of Generation, Transmission and Distribution of electricity in the State of Kerala - It is evident that the Kerala State Electricity Board Ltd is incorporated under the Companies Act, 1956 with 90 per cent or more participation by way of equity or control of the Government of Kerala to carry out the business of generation, transmission and distribution of electricity in the State of Kerala and is a "State Transmission Utility" within the meaning of Section 2 (67) of the Electricity Act, 2003.
Kerala State Electricity Board Ltd cannot be considered as that constituted/established by the Government of Kerala to carry out any function entrusted to a Municipality under article 243W or a Panchayat under article 243G of the Constitution. Therefore, Kerala State Electricity Board Ltd does not fall under the definition of "Government Authority" as defined in Para 2(zf)of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 as amended. However, Kerala State Electricity Board Ltd is also a Board constituted by the State Government with share of 90% or more of the State Government. Hence, Kerala State Electricity Board Ltd squarely falls under the definition of "Government Entity" under Para 2 (zfa) of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 as amended. Thus the condition of the 'said notification as stated in para· 8.1 (b) of this order is also satisfied - The Kerala State Electricity Board Ltd is undisputedly procuring the services from the appellant in relation to a work entrusted to it by the State Government i.e. in connection with the generation, distribution and supply of electricity to consumers. KSEB Ltd is also a board constituted by the State Government with share of 90% or more of the State Government. Hence, Kerala State Electricity Board Ltd squarely falls under the definition of "Government Entity" under Para 2 (zfa) of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 as amended. Hence, the mandatory condition specified in para 8.1(c) is satisfied.
Whether the supply of works contract services provided to KSEB by the appellant could be classified as works undertaken predominantly for use other than for commerce, industry or any other business or profession? - HELD THAT:- The concessional rate of CGST @6% under Sl. No.3 (vi) (a) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 is applicable only for composite supply of works contracts as defined in clause (119) of Section 2 of the GST Act, 2017 supplied by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of a civil structure or any other original works meant pre-dominantly for use other than for commerce, industry, or any other business or profession - The Kerala State Electricity Board as authorized by the Government vide the Electricity Act 2003 is involved in the selling of electricity to the consumers and are collecting charges for the same. The predominant activity of the KSEB is to supply electricity and works executed by the appellant is ancillary to this predominant activity.
Kerala State Electricity Board Ltd. has been established for carrying out the business of generation, transmission and distribution of electricity in the State of Kerala on commercial principles as is evident from the provisions of Sections 61 and 62 of the Electricity Act, 2003 regarding tariff regulation and determination of tariff - the supply of works contract services as per the above work order cannot be considered as that meant predominantly for use other than for commerce, industry, or any other business or profession. Thereby, the condition mentioned in para 8.3 is not fulfilled.
The Kerala State Electricity Board Ltd falls under the category of a Government entity for the purpose of the said exemption - The supply of services viz. execution of the civil works of Pazhassi small hydro electric project covered under Work order No. 06/CEECCN/ 2017-18 dated 06.10.2017 made by the appellant to the Kerala State Electricity Board Ltd are not eligible to concessional rate of CGST @6%provided by the said notification No. 11/2017-Central Tax (Rate) dated 28.06.2017.
The said services shall not be eligible for concessional rate of SGST @6% also in terms of notification No. SRO 370/2017 dated 30.06.2017 since the CGST statutory provisions are pari materia with State GST provisions.
The ruling of authority upheld.
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2020 (12) TMI 1049 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA
Maintainability of application - Appellant is aggrieved by the grounds on which the lower Authority has refused to admit the application for advance ruling - Classification of goods - Flavoured Milk - taxable at the rate of 5% under Schedule IV of the GST Act or otherwise? - HELD THAT:- An appeal can be filed before the Appellate Authority only against an advance ruling pronounced in terms of Section 98(4). In this case, there is no ruling given by the lower Authority on the question raised in the application. The application for advance ruling was not admitted and was rejected by order dated 2nd Sept 2020 in terms of Section 98(2) of the CGST Act. Such an order rejecting the application for advance ruling as inadmissible is not an order appealable before us.
In the instant appeal, the Appellant is aggrieved by the grounds on which the lower Authority has refused to admit the application for advance ruling which is that, the question on which the ruling was sought is a matter that is being investigated by the Directorate of GST Intelligence and hence the application cannot be admitted in terms of the proviso to Section 98(2) of the CGST Act. The Appellant has assailed this reasoning and argued that it is only when the same question is being investigated by the 'concerned officer' that the provisions of the proviso to Section 98(2) will apply; that investigations conducted by any other agency will not attract the said proviso. The Appellant has gone into great length in analyzing the intention of the legislature in framing the provisions of Section 98 and has put forth the view that it is only proceedings which are pending before the 'concerned/jurisdictional officer' which qualify for rejection in terms of the proviso to Section 98(2) - the statement recorded by the DGSTI pursuant to the summons issued, deals mainly with the classification and rate of tax of the product “Flavoured Milk” - Therefore, we agree with the decision taken by the lower Authority that the application for advance ruling is inadmissible in terms of the 1st proviso to Section 98(2) of the CGST Act.
The appeal filed against the non-admittance of the application for advance ruling is not maintainable in as much as the impugned order is not an appealable order under Section 100 of the CGST Act, 2017 - Appeal dismissed.
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2020 (12) TMI 1048 - KERALA HIGH COURT
Maintainability of petition - effective alternative remedy of an appeal - penalty order - HELD THAT:- Against Ext.P8 order, the petitioner has an effective alternative remedy by way of an appeal before the appellate authority. This is more so because I do not find the impugned order vitiated by any error of jurisdiction or violation of the rules of natural justice so as to warrant an interference with the same in these proceedings. Accordingly, without prejudice to the right of the petitioner to move the appellate authority under the GST Act, the writ petition in its challenge against Ext.P8 penalty order, that was passed as early as in 2019, is dismissed.
It is directed that recovery steps for recovery of amounts confirmed against the petitioner by Ext.P8 penalty order shall be kept in abeyance for a period of three weeks, so as to enable the petitioner to move the appellate authority in the meanwhile.
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2020 (12) TMI 1047 - BOMBAY HIGH COURT
Legality and validity of the Provisional attachment of all Bank Accounts - misclassification of products thereby evading payment of due GST - carbonated fruit drinks, such as, Big Cola, Big Orange Cola, Big Lemon and similar other products - HELD THAT:- According to respondent No.2 proceedings have been launched against the taxable person i.e. the petitioner under section 67 of the CGST Act to determine the tax or any other amount due from the petitioner. From the information available it had come to the notice of respondent No.2 that petitioner has three bank accounts as mentioned therein. In order to protect the interest of revenue and exercising power conferred under section 83 of the CGST Act, respondent No.2 provisionally attached the aforesaid bank accounts. Respondent No.3 i.e. the Branch Manager of the ICICI Bank was requested that no debit should be allowed to be made from the said accounts or any other accounts operated by the petitioner without the prior permission of the department.
Where the proper officer not below the rank of Joint Commissioner has reasons to believe that a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand or has claimed input tax credit in excess of his entitlement under the CGST Act or has indulged in contravention of any of the provisions of the CGST Act or the rules made thereunder to evade tax under the CGST Act, he may authorize in writing inspection of any place of business of the taxable person -
A conjoint reading of the relevant provisions of section 67 and section 83 of the CGST Act would indicate that the proper officer must have reasons to believe that the taxable person has suppressed any taxable transaction to evade payment of tax. It is not necessary for us at this stage to delve into the meaning of the expression reasons to believe employed in section 67 which has its own connotation in fiscal statutes. Suffice it to say, requirement of section 67(1)(a) is that the proper officer should have reasons to believe that the taxable person has suppressed any taxable transaction to evade payment of tax.
It is quite clear that petitioner had disclosed the details of its goods and had applied the classification which it thought was appropriate. On that basis it had filed its CGST returns and had been assessed. It is not the case that petitioner has defaulted in payment of tax as per its returns or assessment. On the other hand, respondent Nos.1 and 2 contends that it is a case of misclassification which has led to short payment of GST.
Whether recourse to section 83 is warranted at this stage has not been dealt with in the record. Merely because there is a proceeding under section 67 would not mean that recourse to such a drastic power as under section 83 would be an automatic consequence, more so when petitioner has cooperated with the investigation. That apart, section 83 speaks of provisional attachment of any property including bank account. The record is silent as to whether any attempt has been made for provisional attachment of any property of the petitioner and instead why the bank accounts should be attached. Besides, by use of the word “may” in sub-section (1) of section 83 Parliament has made it quite clear that exercise of such a power is discretionary. When discretion is vested in an authority, such discretion has to be exercised in a just and judicious manner, more so when the power conferred under section 83 admittedly is a very drastic power having serious ramifications. Such power having the potential to adversely affect property rights of persons as well as life and liberty under Article 21 of the Constitution of India has to be exercised in a fair and reasonable manner.
The impugned order dated 18th/ 19th November, 2020 is stayed - withdrawal of the provisional attachment of the bank accounts of the petitioner is directed.
Stand over to 9th March, 2021 for final hearing.
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