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GST - Case Laws
Showing 1 to 20 of 154 Records
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2021 (11) TMI 1185
Second bail application filed u/s 439 CrPC - Offence(s) under Sections 132(1) (b)/(c)/(f) r/w Section 132(1)(i) - HELD THAT:- It is just and proper to enlarge the petitioner on bail for the reasons; firstly, the other co-accused persons have already been released on bail by the Coordinate Bench of this Court; secondly, the maximum sentence for the alleged offence is up-to 5 years only and the petitioner remained in custody for a period of nine months; lastly, out of nine witnesses only the chief examination of one witness has been completed before the learned trial Court as such conclusion of trial likely may take long time.
Accordingly, this second bail application is allowed. Petitioner be admitted to regular bail subject to satisfaction of the trial Court.
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2021 (11) TMI 1184
Condonation of delay in filing the revocation application - requirement to comply with all the requirements of paying the taxes due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.
The writ petition is disposed off.
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2021 (11) TMI 1177
Levy of GST on the value of by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for custom milling of the paddy - HELD THAT:- It is common ground at the Bar that the issue stands covered by the decision of a Co-ordinate Bench in M/S. VASAVI AGR FOOD INDUSTRIES VERSUS THE ASSISTANT COMMISSIONER, THE A.P. STATE CIVIL SUPPLIES CORPORATION, THE DISTRICT MANAGER, STATE OF ANDHRA PRADESH, THE UNION OF INDIA [2021 (2) TMI 1369 - ANDHRA PRADESH HIGH COURT].
In view thereof, the present Writ Petition also stands allowed in similar terms to the aforesaid order and accordingly the assessment order dated 30.08.2019 passed by the 1st respondent, levying GST on the value of by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for custom milling of the paddy, is set aside. However, it is made clear that the petitioner is liable to pay tax on sale of by-products, if they are statutorily taxable.
Petition disposed off.
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2021 (11) TMI 1133
Classification of services - rate of GST - Pure Services - composite supply - works contract service - providing Man Power Service which includes providing of Technical personal, Data Operator, House Keeping Service etc. to different State Government and Central Government Department - applicability of Sr. No. 3 of Notification No. 12/2017-CT dated 28.06.2017 - HELD THAT:- To avail the benefit of clause 3 of the Notification No 12/2017, three conditions should be satisfied. Firstly, pure services (excluding works contract service or other composite supplies involving any goods) should be provided, secondly, it should be provided to the Central Government, State Government or Union territory or local authority or a Governmental authority and thirdly it should be by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Supply of man power as discussed above provided by business entities like the applicant, not involving any supply of goods would be treated as supply of pure services also the applicant has submitted that they are providing the same to Central / State Government.
The interpretation by the applicant that their activity/services of providing Man Power Service involving providing of Technical personal, Data Operator, House Keeping Service etc. to different State Government and Central Government Department in the nature of pure service are functions entrusted to the Municipality and Panchayat, covered under article 243G and 243W of the Constitution is misplaced and devoid of merit. The act of providing man power to Central / State Government by the applicant can by no stretch of imagination be linked to an act of discharging any sovereign functions as envisaged and covered under the functions entrusted and as specified to municipalities / panchayats under 243G/243W of the Constitution of India. Nothing is in record to establish that the activity / provision of service of manpower which includes providing of technical personal, data operator, housekeeping service etc. by the applicant to different State Government and Central Government Department have any direct and proximate relationship with any of the activities listed in Article 243G or Article 243W read with Eleventh Schedule and Twelfth Schedule of the Constitution of India.
No evidence to relate the aforesaid activities or relate the same to functions as envisaged under covered under the functions entrusted and as specified to municipalities /panchayats under 243G/243W of Constitution of India is forthcoming. In the present case the applicant, a business entity performing the business activity of provision of service of manpower viz. providing of technical personal, data operator, housekeeping service etc. to different State Government and Central Government Department can in no way be termed or equated to performing a sovereign function as envisaged under Article 243G or Article 243W of the Constitution.
The activity of provision of service of manpower viz. providing of technical personal, data operator, housekeeping service etc. to different State Government and Central Government Department by the applicant though being a “pure service”, is not any sovereign function as envisaged under Article 243G or Article 243W of the Constitution - the activity of provision of service of manpower is not eligible for NIL rate of GST, provided under Sr. no. 3 of Notification No, 12/2017-Central Tax (Rate), dated 28-6-2017. The aforesaid activity of manpower supply attracts CGST@ 9% and CGGST@ 9%, classifiable under SAC 998513.
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2021 (11) TMI 1130
Input tax credit - rent bill issued by the service provider who has provided Buses on rent to the applicant - applicability of Sr. No. 8 (vi) of Notification No. 11/2017-CT (Rate) Dated 28.06.2017 - HELD THAT:- The eligibility of Input Tax credit is as per the provisions contained under Section 16 subject to the restrictions as stipulated supra under Section 17 of the CGST Act, 2017. It appears that the applicant is under the misplaced notion that eligibility of Input Tax Credit is governed under the provisions of Notification no. 11/2017-CT(Rate) dated 28.6.2007 as amended, whereas it is not so, in as much as non-availment of ITC is a pre-condition for availing the benefit of applicable tax rate for the services rendered by the applicant as provided under the said Notification - For the impugned “Passenger transport services “of Heading 9964, viz. “Transport of passengers by any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient”, in as much as eligibility to the tax rate as stipulated under sr. no 8(vi) of Notification no. 11/2017-CT(Rate) dated 28.6.2017 as amended is concerned, the same is fully dependent on the condition of availment or otherwise of the Input tax credit by the applicant.
The applicant would be eligible to input tax credit on the input services provided they fulfill the conditions as stipulated under section 16 read with section 17 of the CGST Act, 2017, whereas eligibility or otherwise of the tax rate as provided under sr. no. 8(vi) of Notification no. 11/2017-CT(Rate) dated 28.6.2007, as amended vide Notification No. 31/2017-C.T. (Rate), dated 18-10-2017 read with Explanation no. (iv) therein is subject to the pre-condition that Input tax credit of input tax charged on goods and services used in supplying the service, other than the input tax credit of input service in the same line of business (i.e. service procured from another service provider of transporting passengers in a motor vehicle or renting of a motor vehicle), has not been taken.
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2021 (11) TMI 1114
Interim protection granted by this Court by the order dated 1st February, 2021 - last opportunity is granted to the Applicant (Petitioner) to file a representation to the Executive Engineer, Manjore Irrigation Division, Athamallik (Opposite Party No.3) and not to the tax authority.
HELD THAT:- It is made clear that if such representation is not made on or before 1st December, 2021 the interim protection granted by this Court by the order dated 1st February, 2021 will stand vacated - the time for disposal of such representation stands correspondingly be extended up to 1st March, 2022.
The application is disposed of.
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2021 (11) TMI 1112
Seeking release of vehicle - petitioner is ready to furnish the Bank Guarantee of the amount of tax and penalty - HELD THAT:- Subject to furnishing Bank Guarantee for payment of tax, penalty and fine in lieu of confiscation of the conveyance, pending this petition, conveyance shall be released. Once the said Bank Guarantee is furnished, within 24 hours, the release of the vehicle shall be made.
The matter is adjourned to 16.12.2021. Direct service is permitted, TODAY.
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2021 (11) TMI 1102
Seeking grant of bail - evasion of GST - issuance of fake invoices without actual supply and receipt of goods - scope and ambit of Section 132 read with Section 69 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- In the facts and circumstances of the case, it is opined that the Petitioner No.2 is not co-operating in the investigation and was required to be issued summons eight times. Even otherwise, assuming such blanket direction can be issued, it ought to be issued in rarest of rare cases and is not at all warranted in the facts of the present case.
The issue of constitutionality of sections 69 and 132 of the CGST Act is now pending before the Apex Court. Leaving the remedies of Petitioner No.2 to seek reliefs before the appropriate forum open, the prayer for grant of ad-interim relief is rejected.
List the Petition on 8th December, 2021.
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2021 (11) TMI 1066
Tax or not - Royalty payment of tax or not - petitioner urged that the royalty payment is tax and not consideration in the context of the privilege parted by the State allowing the petitioner and others to mine sand - HELD THAT:- The payment of GST for grant of mining lease/royalty by the petitioner shall remain stayed.
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2021 (11) TMI 1054
Seeking reply of letter addressed to the petitioner - HELD THAT:- This writ petition is disposed of by giving liberty to the petitioner to give reply to the letters issued by the respondent concerned within a fortnight from date and if such reply is filed by the petitioner within the stipulated time respondent concerned shall consider the same in accordance with law and take a final decision within four weeks from such reply and communicate the same to the petitioner.
The writ petition disposed off.
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2021 (11) TMI 1030
Lack of jurisdiction in issuance of the impugned notice - Whether notice suffers from any inherent defect or jurisdiction? - HELD THAT:- No proceedings have been initiated against M/S Bhardwaj Unibuild Pvt Ltd. Therefore, it cannot be said that the notice suffers from any inherent defect or jurisdiction. Clearly the issuing authority, namely, Assistant Commissioner is the proper officer with respect to the noticee M/s Bhardwaj Constructions. Other objection being raised by the learned counsel for the petitioners arising from the business transfer w.e.f. dated 30.09.2018, is factual. It may be examined by the adjudication proceedings.
It is also found that the notice has been issued solely of the dictates of the higher authority. Though reference has been made to the communication received from the Additional Commissioner, we provide that in the event of petitioner no.2 participating in the proceeding and filling its objection, the respondent no.2 shall make an independent application of mind to the material on record and the objections raised by the petitioners and pass appropriate and reasoned order without being influenced by opinion, if any.
Though the show cause notice is not happily worded inasmuch as it does appear to suggest on first blush that the demand has been confirmed, yet it is again provided that the demand may be confirmed only after considering the petitioners' objections and meeting the same by a reasoned order. Respondent no.2 may also take care in future in wording such show cause notices appropriately - Petition disposed off.
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2021 (11) TMI 1015
Seizure of the goods and conveyance imposing tax and penalty - Section 129(3) of the Central Goods and Service Tax Act read with Section 20 of the Integrated Goods and Service Tax Act - HELD THAT:- Learned Standing Counsel has opposed the petition stating that Section 129 of the Act starts with a non-obstante clause, which has not been considered in the aforesaid judgements that have been cited by the learned counsel for the petitioner.
The matter requires consideration - List this matter on 22.12.2021 alongwith record of Writ-Tax Nos. 1019 of 2021, 1020 of 2021 and 1021 of 2021.
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2021 (11) TMI 1014
Seizure of goods alongwith vehicle - in the e-way bill, the vehicle number was not mentioned - Section 109 of the U.P. Goods and Services Tax Act, 2017 - maintainability of second appeal provided for under the provisions of Section 112 of the Act - HELD THAT:- Shri Agrawal, learned counsel for the petitioner has pointed out the order passed under Section 129(3)(Form GST MOV-9) in which the amount of tax and penalty have been assessed by the authority concerned. It is contended that the entire amount of tax so assessed in the aforesaid order under Section 129(3) of the Act, has been paid in full. Evidence whereof has been enclosed by way of challan and corresponding statements have been made in paragraphs 10, 17 and 23 of the writ petition.
Matter requires consideration.
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2021 (11) TMI 1013
Refund of unutilized input tax credit (ITC) - export of iron ore fines - export duty is nil as a result of an exemption notification - HELD THAT:- In earlier writ petition of the Petitioner i.e. W.P.(C) No.26685 of 2021, the challenge was to two instructions dated 8th June and 25th June 2021 issued by the Joint Commissioner of CT and GST (Law) at Cuttack instructing Circle Heads in Odisha to treat such export as duty paid and refusing the refund - This Court had in the said writ petition on 8th September 2021, while issuing notice directed that no further steps would be taken vis-à-vis the Petitioner by the Opposite Parties pursuant to those impugned notices. The Petitioner in the said writ petition had also challenged the show cause notice (SCN) dated 21st July 2021 which was pertaining to the period April 2019 to March. 2020.
A development that has taken place subsequent to the above order passed by this Court is that the GST Council at its 45th Meeting on 17th September 2021 decided inter alia to issue a clarification in respect of goods for which the export duty is in fact not paid. It was clarified that “only those goods which are actually subjected to export duty i.e., on which some export duty has to be paid at the time of export, will be covered under the restriction imposed under section 54 (3) of the CGST Act, 2017 from availment of refund of accumulated ITC.” - As a result of the above decision of the GST Council, a fresh circular dated 20th September 2021 has been issued by the Central Board of Indirect Taxes and Customs (CBITC), GST Policy Wing, Ministry of Finance, Government of India in which one of the questions addressed is, at serial No.3, “whether the first proviso to section 54(3) of the CGST/SGST Act, prohibiting refund of unutilized ITC is applicable in case of exports of goods which are having NIL rate of export duty?”
It is seen that since the instruction dated 25th June 2021 stands withdrawn, clearly the earlier instruction dated 8th June 2021 which is in the same vein also does not survive. Therefore, one of the prayers of the previous petition as well as the present petition challenging the aforementioned circulars does not survive - Since the impugned SCN has been issued only as result of the circulars, it also does not survive and is accordingly set aside.
A direction is now issued to the Opposite Party-authority to reprocess the refund application of the Petitioner in light of the fresh circular issued on 20th September 2021 (Annexure-14) and convey the decision to the Petitioner thereon not later than 7th February, 2022. It is made clear that whatever the technical issues for reprocessing the refund application should be resolved by the authority as expeditiously as possible and in a manner to ensure compliance with the timeline set by this Court in this order.
The rejection of the refund application does not survive and is hereby set aside - Petition allowed.
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2021 (11) TMI 1012
Sanction of GST refund claim in respect of goods exported - seeking direction to third respondent to refrain from suspending or withholding the GST refund claims filed by the petitioner in respect of the future exports - HELD THAT:- Considering the refund claims and the drawbacks claims are pending for a long period even though the petitioner appears to have complied partially with the requirements called upon as far as the GST refund claim is concerned, this Writ Petition is disposed by directing the respondent to pass appropriate in respect of GST refund claims and the drawback claims, within a period of thirty (30) days from the date of receipt of a copy of this order.
Petition disposed off.
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2021 (11) TMI 1011
Request for transfer of files of enquiry to a place of petitioners' choice - seeking grant of copy of statements recorded by respondents in the process of investigation into non-collection of tax for outward supply of rice - Section 67 of the CGST/KGST Act - request of petitioner not considered - principles of natural justice - HELD THAT:- While refusing to consider the request of the petitioners, the Proper Officer failed to state any reason. The officer had not mentioned that giving copy of the statements would cause prejudice to the investigation. The request of the petitioners for issuing copies of statements already recorded by the investigating officer, as mentioned earlier was refused to be considered. There is a marked distinction between refusing to consider and rejecting an application for reasons. The Proper Officer ought to have considered the request and either granted copies of the statements or rejected such requests for reasons to be recorded, rather than avoiding consideration of such request.
Order XVI of the CPC deals with power to summon witnesses to give evidence or for production of documents. By conferring the power of summoning a witnesses to give evidence or to produce a document as provided in Order XVI of the CPC, the nature or character of the investigation or inquiry being conducted under Chapter XIV of the Act will not be changed. The power to summon or produce a document is distinct from the nature of proceedings conducted. Merely because the source of power to summon witnesses and power to direct production of documents is referable to CPC, that does not alter the nature of investigation or inquiry being conducted. It remains to be an investigation or inquiry. Therefore, the contention raised by the petitioners on the basis of section 70 of the Act is rejected.
This Court is of the view that Ext.P10 order is liable to be set aside and the first respondent is directed to reconsider the application of the petitioners for giving a copy of the statements already obtained in the course of investigation and pass fresh orders - Petition allowed.
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2021 (11) TMI 1010
Revocation of Cancellation of registration passed by the proper officer - proper officer in terms of the provision of Section 29 of the CGST Act, 2017 r/w Rule 22 of CGST Rules, 2017 - HELD THAT:- The appellant in his appeal memo has referred the Order for Cancellation of registration dated 18.03.2021 against which the appeal is filed. During personal hearing the authorized representative defended the case for appeal against Order for Rejection of application for revocation of cancellation dated 23.05.2021 and requested to allow appeal by way of revocation of registration.
On being out the appellant has agreed to the error on his part and submitted that while filing appeal date of order against which appeal is filed wrongly considered for REG-19 instead of Order of rejection of revocation application (REG-05) - on account of inadvertent mistake, particulars of disputed order dated 18.03.2021 (REG-19) were wrongly entered of Registration passed by the learned Superintendent. This was a genuine clerical mistake which has caused ab-initio incorrectness in appeal memo. That the appellant has deposited of interest and be considered as the requirement has been complied.
The adjudicating authority/proper officer has rejected the application for revocation of cancellation of registration as the appellant has not complied with the provisions of Section 30 of the CGST Act, 2017 by not filing the revocation application within the prescribed time limit. In this context, the appellant submitted that due to corona pandemic and financial problem he could file GST returns and reply to the SCN issued by the proper officer - the adjudicating authority/proper officer has passed the order for rejection of Application for Revocation of Cancellation of registrations due to non-compliance of Section 30 of the CGST Act. In this context, the appellant submitted in their written submissions due to Covid-19 lock down and financial problem application of revocation of cancellation of registration within the prescribed period before the proper officer.
The appellant has filed returns upto date of cancellation of registration hence, it is found that the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case. Therefore, the registration of appellant may be considered for revocation by the proper officer.
Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 981
Legal right of the petitioner on account of the Taxes being shared and borne by the petitioner on post enactment goods and Service Tax Act, 2017 - Infringement of Goods and Service Tax Act, 2017 - restitution of benefit of GST to the petitioner along with interest within a stipulated period in respect of work in which the estimate was prepared under the VAT law - direction to opposite party not to prepare fresh schedule of rates considering rapidly change of rate and price and calculate the differential amount of GST on the contract in which estimate was prepared under VAT - HELD THAT:- On perusal of the judgment delivered by this Court in M/S. HARISH CHANDRA MAJHI VERSUS STATE OF ODISHA & OTHERS [2021 (6) TMI 381 - ORISSA HIGH COURT], the Court finds that the Court has dealt with a large number of grounds which are more or less similar to the points urged in the present petition. The Court is not satisfied that any new ground has been made out requiring the Court to revisit its judgment in Harish Chandra Majhi. Consequently, the Court is not inclined to interfere in the impugned petition.
Petition dismissed.
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2021 (11) TMI 980
Seeking release of monetary compensation/reward - Release of lorries and trucks - HELD THAT:- The writ petition cannot be treated to be a frivolous litigation. The issue as to whether the appellant can be recognized as an informant or not under the relevant circulars issued by the Central Board of Excise & Customs (C.B.E.C.), what is required to be first seen is whether there has been any illegal imports of the betel nuts from the neighbouring countries into the State of West Bengal.
The court can take judicial notice of the fact that the Customs Department and the Central Excise Department very often initiate action based on special intelligence. The show cause notice also states that information was gathered by specific intelligence either by the DRI or the DGFT or other investigating agencies. Therefore, there is no requirement for the Customs and Excise to disclose the source of information based on which investigation was undertaken. Therefore, the court fails to understand as to why effective action was not taken by the Customs Department pursuant to the representations made by the appellant.
The writ petition needs to be heard and decided on merits for which affidavits are required from the concerned respondent viz. Customs Authorities. That apart, the appellant is required to implead the SGST authority as well as the State Government as party respondent so that the matter can be examined from the angle as to whether the SGST authority would have jurisdiction or domain over the said goods and whether they would be entitled to levy tax and penalty.
The writ petition is restored to the file and number of the learned Single Bench to be heard and decided on merits after affidavits are filed by the respondents - The appeal is, thus, allowed. The order passed in the writ petition is set aside.
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2021 (11) TMI 979
Validity of summons issued - primary contention of learned counsel is that in response to the first summon served, the petitioner had submitted that it would require two weeks to appear with all the material but without giving any breathing time, further summons were being issued - HELD THAT:- This petition is disposed of with a direction that in case the petitioner appears before the officer concerned on 29.11.2021, he may file reply and make submissions both on law and merits and the officer concerned would decide the same by passing a speaking order, in accordance with law.
Application disposed off.
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