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GST - Case Laws
Showing 41 to 60 of 1965 Records
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2021 (12) TMI 1098 - ANDHRA PRADESH HIGH COURT
Violation of principles of natural justice - disallowance of input tax credit - petitioner submitted that the said Assessment Order is absolutely illegal as far as the petitioner is concerned, since it has been passed ignoring the documents filed by the petitioner - HELD THAT:- Though learned counsel for the petitioner has raised issues which require consideration, but since the same are based on facts which are still not admitted or proved, the exercise has to be gone into initially with regard to the factual aspect of the matter and thereafter only the law can be applied once such factual aspects are clear before the concerned authority or the Court.
This Court also feels that the matter can better be appreciated and gone into by the Appellate Authority which would be in a position to take a view with regard to issues raised by the petitioner in accordance with law after giving full opportunity of hearing to the petitioner - this Court is not inclined to entertain the writ petition for the present.
Petition disposed off.
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2021 (12) TMI 1041 - TELANGANA HIGH COURT
Rectification of mistake - GST Transition Form-l (TRAN-l) - alleged inaction of the respondents in permitting the petitioners to rectify the errors made by the petitioners in Transition Form – l (TRAN-l) - HELD THAT:- The limitation under sub-rule (1) of Rule 117 of the CGST Rules, was 90 days from the appointed day, which was extendable by a further period not exceeding 90 days as per the first proviso. In other words, the revised declaration in FORM GST TRAN – 1 had to be filed within 180 days i.e., within 27.12.2017. While the due date for filing of TRAN – 1 form was extended from 27.12.2017 to 31.03.2020, the due date for filing revised declaration in TRAN – 1 form was not extended.
Courts have held time and again that rules and procedures are intended to sub-serve the cause of justice. In fact procedure is often referred to as ‘handmaid of justice’. Laws and procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. It is intended to further the ends of justice and not a thing designed to trip people up.
In the facts and circumstances of that case, Bombay High Court in HERITAGE LIFESTYLES AND DEVELOPERS AND PRIVATE LIMITED VERSUS THE UNION OF INDIA THROUGH THE REVENUE SECRETARY MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS MINISTRY OF FINANCE, STATE OF MAHARASHTRA, THROUGH THE SECRETARY MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOODS AND SERVICE TAX COUNCIL, DEPUTY COMMISSIONER OF CGST & CENTRAL EXCISE DIVISION-I, RANGE – III NAVI MUMBAI, SUPERINTENDENT (COMPUTERS) CGST & CENTRAL EXCISE NAVI MUMBAI SUPERINTENDENT OF CGST & CENTRAL EXCISE, RANGE-III DIVISION-I, NAVI MUMBAI, DEPUTY COMMISSIONER OF GST & CENTRAL EXCISE, MUMBAI COMMISSIONER OF CGST & CENTRAL EXCISE, CHIEF COMMISSIONER OF GST & CENTRAL EXCISE, MUMBAI [2020 (11) TMI 235 - BOMBAY HIGH COURT] took the view that when there was no dispute to the fact that petitioner was otherwise eligible for credit then to deny the benefit of such input credit merely on technical grounds cannot be justified. It was held that merely on technical ground an admitted input credit was sought to be denied to the petitioner, which was wholly unfair and a travesty of justice. Accordingly Bombay High Court directed the respondents to accept the TRAN-I filed by the petitioner and to give the benefit of input tax credit in the electronic credit ledger of the petitioner.
The respondent No.1 is directed to take a decision on the representations of the petitioners dated 04.03.2020 either by reopening the online portal, or manually, within a period of four weeks from the date of receipt of a copy of this order - petition allowed.
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2021 (12) TMI 1040 - TELENGANA HIGH COURT
Refund of utilized input tax credit - rejection of claim for refund on the ground that petitioner had not submitted the required documents in hard copies for verification - Section 54(3) of the Telangana State Goods and Services Tax Act, 2017 read with Section 54(3) of the Central Goods and Services Tax Act, 2017 (CGST Act) and Section 20(xiii) of the Integrated Goods and Services Tax Act, 2017 (IGST Act) - principles of natural justice - HELD THAT:- In a case where the proper officer is satisfied for reasons to be recorded in writing that the whole or any part of the amount claimed as refund is not admissible or is not payable, he shall issue notice to the applicant requiring filing of reply within 15 days of receipt of notice and after considering the reply make an order sanctioning the amount of refund in whole or in part or rejecting the refund claim which order shall be made available to the applicant. As per the proviso, an application for refund shall not be rejected without giving the applicant an opportunity of being heard. Therefore, there is a clear legal mandate that if an application for refund is to be rejected, the same can only be done after giving the applicant an opportunity of being heard.
The expression 'opportunity of being heard' is not an expression of empty formality. It is a part of the well-recognized principle of audi alteram partem which forms the fulcrum of natural justice and is central to fair procedure. The principle is that no one should be condemned unheard - When the law requires that no application for refund shall be rejected without giving the applicant an opportunity of being heard, the same cannot be substituted by telephonic conversations and exchange of e-mails. This is more so in the case of a claim for refund where no time-limit is fixed vis-à-vis rejection of claim. Under subsection (7) of section 54, a time-limit of 60 days is prescribed for making of an order allowing claim of refund; but that period of 60 days would commence from the date of receipt of the application complete in all respects without there being a corresponding provision for rejection of application not complete in all respects.
It is settled law that if there is violation of the principles of natural justice, then the High Court will invoke its extraordinary jurisdiction under Article 226 of the Constitution of India notwithstanding the availability of the alternative remedy of appeal.
The respondent is directed to hear afresh applications of the petitioner for refund within a period of two months from the date of receipt of a copy of this order - petition allowed.
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2021 (12) TMI 1039 - KERALA HIGH COURT
Service of order - Original copy of order was not received or lost - Direction to serve a copy of an Order issued under Section 129(3) of the Central Goods and Services Tax Act - Non-invocation of bank guarantee furnished by the petitioner - whether petitioner was in receipt of the order issued by the first respondent under Section 129(3) of the Act? - HELD THAT:- As per the statutory prescription and going by the averments in the counter affidavit as well as the documents produced, it is evident that petitioner can be deemed to have been tendered with the order under Section 129(3) on 03.02.2020. The fiction that is created does not leave any room for doubt and since the tendering of notice is by registered post with acknowledgement due, there is no scope for even assuming that the order was not served on the petitioner. In this context, this Court notices the pleading of the petitioner that he had received the notice for hearing scheduled on 24.01.2020. The copy of dispatch register showing that the order was dispatched on 28.01.2020 and the copy of acknowledgement card produced as Ext.R1(c), fortifies the above conclusion - the order under Section 129(3) of the Act was served on the petitioner on 03.02.2020.
Having regard to the contention that petitioner had not received the order or that he may have misplaced the order due to which petitioner ought to be given a certified copy to enable him to pursue appropriate statutory remedy is a contention which merits consideration - Since the petitioner’s right to pursue an appeal cannot be curtailed solely on account of non-receipt of an order or loss of an order, if law otherwise permits him to pursue the appeal, then certainly it is incumbent upon the first respondent to issue a certified copy to the petitioner.
The first respondent is directed to issue a certified copy of the order to the petitioner in accordance with law forthwith - petition disposed off.
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2021 (12) TMI 1038 - KERALA HIGH COURT
Seizure and confiscation of goods - Carrying Gold without delivery challan - Validity of proceedings initiated under section 130 of the Central Goods and Services Tax Act, 2017 - dealer in gold jewellery - HELD THAT:- Ext.P5 order clearly endorses the satisfaction of the Proper Officer that the mandatory documents prescribed under section 31 of the Act read with rule 55 of the CGST Rules, 2017 was admittedly not available with the petitioner while transporting the huge quantity of gold ornaments. After conducting a hearing, pursuant to the notice issued, the officer came to the conclusion that absence of delivery challan and the circumstances attended therewith clearly showed an intention to evade tax without any ambiguity. The aforesaid conclusion is a finding of fact. This finding cannot be interfered with in exercise of the powers under Article 226, unless it is perverse or without anything explicitly contradicting such a finding.
The question whether absence of mandatory documents in the particular case constitute an intention to evade tax or not is a matter within the realm of satisfaction of the Proper Officer. Interference in the satisfaction exercised by the Proper Officer, when the conclusion is supported by the circumstances surrounding the transaction, warrants no interference by this Court, as otherwise, the scheme and purport of the Act will be affected.
Petition dismissed.
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2021 (12) TMI 1037 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of goods - SAC and rate of GST - Turmeric (Turmeric in Whole form - not in powder form) - Agriculture Produce or not - services rendered by Applicant as a Commission Agent in APMC, Sangli are liable to GST in terms of SI. 54 Heading 9986 of Notification No.12/2017 CT(R) dated 28.06.2017 read with SI. No. 24 of Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 or not - requirement of registration under the CGST Act, 2017 for his activities specified under Annexure-I - relevant section for registration - HELD THAT:- Chapter 9 covers Coffee, Tea, Mate and Spices, Further, it is observed that Turmeric is covered under Chapter Heading 0910 of the GST Tariff. Tariff Item 0910 covers Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices. Under Chapter 0910 Ginger (other than fresh ginger), saffron, turmeric (curcuma) (other than fresh turmeric), thyme, bay leaves, curry and other spices are chargeable to GST @ 5%. Thus it is clear that Turmeric is considered as a Spice - it is found that Fresh Turmeric other than in processed form falling under HSN 0910 30 10 attracts NIL Rate of GST and Dried Turmeric (subject Goods) is covered under HSN Code 0910 30 20 taxable at the rate of 5% GST. Thus, it is seen that the subject produce is a Spice and is not covered under the definition of an “agricultural produce” - the impugned services supplied by the applicant are not covered under clause (g) of Sr. No. 54 of Notification No. 12/2017-Central Tax (Rates) dated 27th June, 2017.
The impugned services supplied by the applicant are not exempt in terms of Sl. No. 54 Heading 9986 of Notification No.12/2017 CT(R) dated 28.06.2017 read with SI. No. 24 of Notification No. 11/2017-C.T. (Rate) dated 28.06.2017. In other words the said SI. 54 Heading 9986 of Notification No.12/2017 CT(R) dated 28.06.2017/SI. No. 24 of Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 is not applicable in the applicant's case and therefore the applicant is required o pay GST on the commission amounts received by him - Since the services supplied by the applicant are not exempt in the instant case, the corollary to it is that, the impugned services are taxable and accordingly, the applicant has to get registered under the provisions of the GST Laws.
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2021 (12) TMI 1036 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Levy of GST - services provided by the applicant to NMMT under the Agreement, by way of supplying, operating and maintaining air-conditioned electrically operated buses - appropriate SAC and rate of GST - eligibility to avail the input tax credit of tax paid on the procurement of input supplies used in supplying services to NMMT under the Agreement - HELD THAT:- The facts in the case of IN RE: M/S. M.P. ENTERPRISES & ASSOCIATES LIMITED [2021 (6) TMI 522 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] and the present case are identical in nature and terms of underlying contracts are also similar. The only difference is, in that case the fuel was diesel and in the present case it is the electricity. The applicant during the course of oral arguments informed that it bears the cost of electricity required for charging of buses. Further the parking charges in respect of the buses are also borne by them. Since the facts of M/s MP Enterprises & Associates Limited and the facts of the present case are same, there is no reason for us to deviate from the decision taken in the said case of M/s MP Enterprises & Associates Limited.
In the case of transportation of passengers, the recipient of service would be the passenger whereas in the case of renting of any motor vehicle, the recipient would not be the passenger. In the subject case, the consideration for supply of service is charged from NMMT and not the passenger. Therefore in the subject case it is clear that the recipient of service is NMMT. Hence, we have no hesitation in holding that the subject activity, amounts to 'renting of motor vehicle' and shall qualify as a taxable activity under the provisions of the GST Laws. Since the subject activity is taxable, the provisions of Notification No. 12/2017-CT (R) dated 28.06.2017 is not applicable in the subject case. The subject case is clearly covered by Entry Sr. No. 10 of Notification No. 11/2017-CT (Rate) dated 28.06.2017 as amended in as much as there is a Rental services of transport vehicles with or without operators and the activities of Renting of any motor vehicle/transport vehicle which is designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient are chargeable to either 2.5% GST or 12% GST depending on availment of Input Tax Credit.
The service of operating AC buses by the applicant for NMMT would be subject to GST @12% under Tariff Heading 9966 i.e. 'renting of any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient' inserted by way of Notification No.31/2017 dated 13.10.2017 (Amended Notification No.11/ 2017-CT(R) dated 28.06.2017) wherein the applicant is eligible to claim set off, as discussed, on its outward supplies, as provided in the above notification.
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2021 (12) TMI 1002 - CHHATTISGARH HIGH COURT
Seeking grant of regular bail - fake input tax credit invoices, without actual supply of goods - fraudulent and irregular input tax credit affecting collection of Goods and Services Tax - without assessment of amount involved, search and seizure conducted - Sections 16 & 132 (1) (b) & (c) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Section 67 of the GST Act provides for power of inspection, search and seizure. For search and seizure, if Proper Officer only after recording reason to believe that a taxable person has suppressed any transaction relating to supply of goods or services or both or stock of goods or claimed input tax credit in excess of his entitlement to evade tax under the GST Act; or goods of a person engaged in business of transporting or operator of a warehouse have escaped payment of tax may authorize any other officer to inspect any place of business of taxable person. Except recording reason to believe, there is no other bar for the Proper Officer for inspection, search and seizure. It is not the case of applicant nor any argument to the effect has been advanced that no reason has been recorded. Hence, submission that prior assessment has not been made before invoking powers under Section 67 of the GST Act, does not stand and it is hereby repelled.
Applicants are arrested for commission of offences punishable under Sections 16 & 132 (1) (b) & (c) of the GST Act. Section 138 of the GST Act deals with compounding of offences. Offence registered against applicants under Section 132 (1) of the GST Act is made compoundable by the Commissioner on making payment to the Central Government or State Government either before or after institution of prosecution. In case at hand, case is instituted against applicants and they were arrested.
The applicant are allowed to be enlarged on bail - application allowed.
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2021 (12) TMI 1001 - DELHI HIGH COURT
Provisional attachment of petitioner's bank account and immovable properties - taxable person as defined under Section 2(107) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- This Court in WATERMELON MANAGEMENT SERVICES PRIVATE LIMITED VERSUS THE COMMISSIONER, CENTRAL TAX, GST DELHI (EAST) & ANR. [2020 (6) TMI 36 - DELHI HIGH COURT] has held that writs cannot be entertained as petitioner has efficacious alternative remedy before competent authority by filing objections under Rules 159(5) of the CGST Rules, 2017.
The present writ petition is disposed of with liberty to the petitioner to file his objections under Section 159(5) of the CGST Rules, 2017 - Petition disposed off.
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2021 (12) TMI 1000 - CALCUTTA HIGH COURT
Validity of impugned order of final intimation - non-compliance of the statutory formalities under Section 61 read with Rule 99 of the West Bengal GST Acts and Rules as well as Sections 73,74 and 75 of the West Bengal GST Act, 2017 - HELD THAT:- Learned Advocate appearing for the respondent is not in a position at present to contradict the aforesaid allegations of the petitioner, which is substantiated from record and which are part of this writ petition.
The petitioner has been able to make out a prima facie case for interim order in the matter as well as issues involve in this writ petition require affidavit from the respondents for final adjudication.
Matter to appear for final hearing on 15th January, 2022.
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2021 (12) TMI 999 - APPELLATE AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH
Levy of GST - payment of notice pay by an employee to the applicant employer in lieu of notice period, under clause 5(e) of Schedule II of CGST Act - amount of premium of Group Medical Insurance Policy of non-dependent parents recovered from the employees & retired employees at actuals covered under the said Policy - recovery of nominal amount for availing the facility of Canteen at the Refinery at Bina when it is no supply as per clause 1 of Schedule III of CGST Act - recovery of telephone charges recovered from the employees over and above the fixed rental charges payable to BSNL - Canteen services to all the employees without charging any amount (Free of cost) will fall under para 1 of Schedule II of CGST Act.
Whether GST is applicable on payment of notice pay by an employee to the applicant-employer in lieu of notice period under clause 5(e) of Schedule II of GST Act? - HELD THAT:- Services by an employee to the employer in the course of or in relation to his employment have been placed out of the purview of GST. In present case also the said compensation which accrues to the employer is in relation to the services provided by the employee. Such compensation is related to the services not provided by him to the employer during the course of employment. In other words, the employer is being compensated for the employee's sudden exit. Merely because the employer is being compensated does not mean that any services have been provided by him or that he has 'tolerated' any act of the employee for premature exit - the Ld. AAR had erred in concluding that such activity was leviable to GST.
Whether the amount of premium paid towards Group Medical Insurance policy of non-dependent parents recovered from employees and recoveries from retired employees who were covered under the policy is taxable under GST or not? - HELD THAT:- Any activity done against consideration is treated as supply however, such an activity must be in the course of business or for the furtherance of business - the activity undertaken by the applicant like providing of mediclaim policy for the employees' non-dependent parents/ retired employees through insurance company neither satisfies conditions of Section 7 to be held as “supply of service” nor it is covered under the term “business” of Section 2(17) of CGST ACT 2017. Accordingly, facilitating medical insurance services to non dependent parents and retired employees upon recovery of premium amount on actuals cannot be considered as 'supply of service' under CGST Act or MPSGST Act.
Whether GST is applicable on recovery of nominal amount for availing the facility of canteen at the Bina refinery? - HELD THAT:- MPAAR has ruled that the Goods and Services Tax is applicable on the amount recovered from employees, mainly on the premises that 'the appellant is supplying food to its employees', which would be covered under the definition of the term 'business' under Section 2(17) of the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017. However, the appellant has asserted before us that it is collecting the portion of employees' share and paying to Canteen Service Provider, a third party, which is nothing but the facility provided to employees, without making any profit and working as mediator between employees and the contractor / Canteen Service Provider. Under these circumstances, we hold that the Goods and Services Tax is not applicable on the activity of collection of employees' portion of amount by the appellant, without making any supply of goods or service by the appellant to its employees.
The Goods and Services Tax is not applicable on the collection, by the appellant, of employees' portion of amount towards foodstuff supplied by the third party / Canteen Service Provider.
Whether GST is applicable on recovery of telephone charges from the employees over and above the fixed rental charges payable to BSNL? - HELD THAT:- The activity undertaken by the applicant like providing of telephone facility to employees through BSNL neither satisfies conditions of Section 7 to be held as “supply of service” nor it is covered under the term “business” of Section 2(17) of CGST ACT 2017. Accordingly, facilitating telephone connection to employees upon recovery of usage charges on actuals cannot be considered as 'supply of service' under COST Act or MPSGST Act.
Whether full ITC is applicable to the applicant or ITC will be restricted to the extent of GST borne by the applicant employer? - HELD THAT:- Input credit of GST paid to BSNL on usage charges recovered from employees would not be available to the appellant as they are not providing any outward supply of telephone services and the facility is also not attributable to the purposes of their business in terms of Section 17(1) of the CGST Act - Input credit of GST paid to the insurance provider would also not be available to the applicant- as health insurance is in the excluded category under Section 17 (5) of the CGST Act and as said insurance services are not any outward supply of the applicant - As regards provision of canteen facility, It is found that the appellant has submitted that the canteen facility was required to be provided by a company as per Section 46 of the Factories Act, 1948. Therefore applying the proviso under Section 17(5)(b) that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law, we are of the view that input credit of GST paid would be available to the appellant.
Whether the provision of canteen services to all the employees without charging any amount (free of cost) will fall under Para 1 of Schedule III of GST Act and will not be subjected to GST? - HELD THAT:- Services by an employee to the employer in the course of or in relation to his employment have been placed out of the purview of GST. In this case canteen services are provided to employees by the employer. So this is not a case where some services have been provided by the employee to the employer. There is nothing on record to show that the said facility provided to employees is part of the wage structure - canteen services would not be leviable to GST at the hands of the employer because of findings that the employer was merely a facilitator between the canteen service provider and the employee and that the employer was mandated to run a canteen under the Factories Act.
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2021 (12) TMI 950 - PUNJAB & HARYANA HIGH COURT
Seeking grant of Regular Bail - evasion of the State Tax to the Govt., by floating bogus firms and showing fake billings and transactions in order to draw the refund of the GST payment - Sections 69, 132(1), a, b and c of the Punjab Goods and Service Act, 2017 - HELD THAT:- In the present case, the matter already stands investigated qua the petitioner. Moreover, the petitioner has been in custody since 09.02.2021. Trial of the case would take time to conclude.
No useful purpose would be served by keeping the petitioner behind the bars. Thus, the present petition is allowed and the petitioner is ordered to be on regular bail on execution of adequate personal/surety bonds amounting to ₹ 5 lakh to the satisfaction of concerned trial Court/Duty Magistrate - Decided in favor of petitioner.
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2021 (12) TMI 949 - DELHI HIGH COURT
Seeking directions to the respondents restraining them from taking action pursuant to the impugned Circular dated 6th October, 2021 without following the due process of law - HELD THAT:- Mr.Singla, learned counsel for respondents no.2 and 3, states that this Court has no territorial jurisdiction to entertain the present writ petition. Since this Court has already issued notice in the main writ petition as well in stay application, this Court is of the view that the present application serves no purpose.
The present application is dismissed.
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2021 (12) TMI 948 - BOMBAY HIGH COURT
Grant of anticipatory bail - illegal tax credit availed by the applicant - fake companies - HELD THAT:- Mr. Merchant is justified in claiming that the companies with whom the applicant has dealt with and from whom he has availed tax input credit, were granted registration certificate. He could also be justified in claiming that the documents relating to such transactions in availing input tax credits are available with the department - However, during the inquiry in the State of Karnataka, so also in Bombay, it revealed that the five firms with whom the applicant has dealt with and has availed input cash credit are not physically in existence as was found on physical verification.
As such, it can be noticed that even if the applicant claimed to have transactions with the companies, custodial interrogation is necessary so as to find out who was operating such fake companies and further investigation as to the whether such fake firms are in operation - there is substance in the contention of the learned counsel for the revenue, particularly in the verification reports stating that the five firms with whom the applicant has dealt with are not physically in existence.
No case for grant of bail is made out - Application rejected.
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2021 (12) TMI 947 - PATIALA HOUSE COURTS
Seeking grant of Regular bail - availment and utilization of fake input tax credit - non filing of challan / complaint against the applicant - applicability of Chapter XII Cr.P.C. - HELD THAT:- Taking note of the fact that the allegations against the applicant/accused are serious in nature ; applicant is involved into the heinous economic offence of utilizing the fake ITC causing loss to the government exchequer ; additionally investigation is at crucial stage ; number of persons involved into the present case including the brother of the present applicant are absconding and evading the process of law, therefore, bail cannot be granted at this juncture to the applicant/accused.
Application dismissed.
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2021 (12) TMI 890 - PUNJAB AND HARYANA HIGH COURT
Revocation of cancellation of registration - revocation being considered/rejected on the ground that they have not been made within the time prescribed - contention of learned counsel for the petitioner is that this is an erroneous reading of N/N. 34 of 2021 dated 29.08.2021 - Section 30 of the Central Goods and Services Tax, Act 2017 - HELD THAT:- The interpretation sought to be placed by learned counsel appearing for respondents is unduly restricted. It cannot be lost site of that this notification was issued in view of the Covid pandemic, wherein even the Supreme Court had passed a blanket order of extending the period of limitation. Once the petitioners had already been granted benefit of the notifications dated 23.04.2019 (Annexure P-6), dated 25.06.2020 (Annexure P-7) and dated 29.08.2021 (Annexure P-10), the time limit for making such application should have extended up to the 30th day of September, 2021.
These writ petitions are allowed and it is directed that in case these petitioners now move an application for revocation of cancellation (if necessary, manually) within a period of 30 days from the date of receipt of certified copy of this order, the same would be deemed to be within limitation and would have to be decided in accordance with law on merits.
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2021 (12) TMI 889 - ALLAHABAD HIGH COURT
Seizure of goods - goods seized on the ground that U.P. e-way bill was not accompanying the goods - section 129(3) of UPGST Act - HELD THAT:- Admittedly, the goods in question were coming from Aurangabad (Maharashtra) to Kanpur Dehat. Along with the goods, documents as prescribed under section 7 of the IGST Act were accompanying and no discrepancy, whatsoever, was found in the said documents. The stand taken in the impugned orders is non-compliance as central e-way bill was not accompanying the goods. On close, scrutiny of the record reveals that in the State of Uttar Pradesh, requirement for central e-way bill was implemented with effect from 01.04.2008. At the time of detention of the goods, there was no requirement for carrying central e-way bill. Therefore, the goods cannot/should not be seized or penalty/tax could not be legally demanded.
The Division Bench of this Court in M/S GODREJ AND BOYCE MANUFACTURING CO. LTD., L.G. ELECTRONICS INDIA PVT. LTD., BHARTI AIRTEL LIMITED, M/S GUALA CLOSURES (INDIA) PVT. LTD., M/S. RAS POLYTEX PVT. LIMITED, RIMJHIM ISPAT LIMITED, RIMJHIM ISPAT LIMITED, M/S. GAURANG PRODUCTS PVT. LTD., M/S. ADITYA BIRLA FASHION AND RETAIL LTD., M/S. NAVYUG AIRCONDITIONING AND M/S. PROACTIVE PLAST PVT. LTD. VERSUS STATE OF U.P. AND 02 OTHERS AND STATE OF U.P. AND 3 OTHERS [2018 (9) TMI 1261 - ALLAHABAD HIGH COURT] has held that during the period from 01.02.2018 to 31.03.2018, the requirement of e-way bill under the U.P. GST Act read with Rules framed thereunder was unenforceable - thus, neither seizure of goods was justified nor can the penalty be sustained.
Petition allowed.
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2021 (12) TMI 888 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Regular Bail - fixing of the amount of the bond for bail - wrongful loss of ₹ 15.91 crores to the complainant-Directorate General of GST Intelligence - Section 132(1)(b) of Central Goods & Services Act, 2017 (for short 'CGST Act, 2017), punishable under sub-clause(i) of Section 132(1) of CGST Act, 2017 - HELD THAT:- Chapter XXXIII of Code of Criminal Procedure contains the provisions relating to bail and bonds and Section 437 and 439 Cr.P.C. deal with the regular bail of undertrial. The concession of regular bail liberates the undertrial from detention in prison during the pendency of the trial subject to fulfilling the conditions including execution of personal bond with or without sureties. Ordinarily, the Court before granting regular bail to the accused considers various factors like nature and gravity of the alleged crime, custodial period of the accused, stage of the trial, the alleged role/participation of the accused in the alleged offence and other attending circumstances.
At the time of release, the accused is conditioned to execute bonds and furnish surety and the amount of bond is fixed by the Court/Officer granting bail to the accused and the object of such conditions is to ensure that the accused returns to stand trial. Of course, there cannot be a straitjacket formula to fix the amount of the bond, but it should not be exorbitant to take it beyond the means of the accused, thereby frustrating the relief of bail, as it would amount to giving relief with one hand, but taking away with the other. Perhaps for this reason, Section 440 Cr.P.C. contemplates that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
This Court does not find any merit in the argument advanced on behalf of the complainant as the petitioner cannot be allowed to remain in jail indefinitely, because it would mean punishment to the accused before charges against him are even explained. The maximum sentence for the alleged offence in the present case is Five years, whereas the petitioner has already undergone a period of more than 11 months. Since the petitioner is yet to execute the bond and furnish the sureties, the condition directing the accused to furnish the bank guarantee/FDR is also not sustainable, as normally, such a condition can be imposed in lieu of executing the bond.
This Court is mindful of the fact that admittedly, in the present case, till date no complaint/charge-sheet has been filed by the respondent and despite the concession of bail extended to the petitioner on 24.2.2021, he continues to be in prison. At this juncture, it is needless to observe that every accused is presumed to be innocent till the prosecution brings home the guilt of the accused, and further the grant of bail is a general rule, whereas denial is an exception. This Court is of the opinion that the impugned order dated 15.7.2021 (Annexure P-2), passed by the Addl. Sessions Judge, Ludhiana, calls for further modification.
The petition succeeds and it is ordered that the accused shall be released on bail subject to his executing bond of ₹ 10 lakhs and two sureties of the like amount, and further the other condition of furnishing a bank guarantee for a sum of ₹ 20 lakhs is set aside - Petition allowed.
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2021 (12) TMI 887 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA
Classification of goods - import of diagnostic and laboratory reagents - to be classified under heading 3822 of the Customs Tariff Act, 1975 are covered under Entry No. 80 of Schedule H to the Notification No.1/ 2017-Integrated Tax (Rate) dated 28.06.2017? - Circular No. 163/ 19/2021-GST dated 6th October, 2021 - HELD THAT:- The CBIC, vide para 10 of the Circular No. 163/ 19/2021-GST dated 6th October, 2021, clarified the issue of “whether the benefit of concessional rate of 12% would be available to laboratory agents and other goods falling under heading 3822”. It is held that the intention of the entry at S. No. 80 of Schedule II of notification No.1/2017- Integrated Tax (Rate) dated 28.6.2017 was to prescribe GST rate of 12% to all goods, whether diagnostic or laboratory regents, falling under heading 3822. Accordingly it is clarified that concessional GST rate of 12% is applicable on all goods falling under heading 3822, vide Entry at S. No. 80 of Schedule II of notification No.1/2017-Integrated Tax (Rate) dated 28.6.2017.
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2021 (12) TMI 886 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA
Classification of supply - composite supply or not - Naturally bundled goods or not - combined service of setting up of Wet Limestone FGD plant and operation & maintenance - applicability of entry no.3(iv)(e) of the Notification No.11/ 2017-Central Tax (Rate) dated 28.06.2017 - applicable GST rate and SAC/ HSN - HELD THAT:- “Composite Supply” is defined under section 2(30) of the CGST Act 2017 to mean “a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply.” - The concept of ‘naturally bundled’ supplies is not defined under CGST Act 2017. However Education Guide issued by CBEC (now CBIC) in the year 2012 refers ‘Bundled service’ to mean a bundle of provision of various services wherein an element of provision of one service is combined with an element or elements of provision of any other service or services. Though this reference is given with respect to bundled service it can be extended to bundled supplies in the GST regime.
The applicant is involved in supply two services i.e. Setting up of FGD plat and O&M of the said plant, one at a time - the service of Setting up of FGD plant, which is in the nature of turnkey project / EPC contract and examine whether setting up of the said plant qualifies to be a composite supply of works contract or not.
In the instant case, the setting up of FGD plant includes civil works (tanks & silo works, Mill Building, MCC building etc.), Equipment foundation works, duct works, installation works (mechanical / electrical) etc., Thus the applicant has undertaken erection, installation & commissioning of FGD plant, which is permanently fastened to earth and hence the said plant becomes immovable property. Construction, supply of relevant goods, assembly, commissioning of such immovable structure qualifies as a ‘works contract’ service - the tender Notification & the Job order reveal that the FGD plant is primarily meant for the control of emission of Sulphur Dioxide, Nitrogen Oxide and other items as per the notification dated issued under the Environment Protection Act, 1986. Thus the said plant is meant for control of emission of hazardous gases.
The service of setting up of FGD plant gets covered under the aforesaid entry 3(iv)(e), subject to the condition that the plant has to be a pollution control or effluent treatment plant and should not be located as a part of a factory. In the instant case, the FGD plant is integrated to the thermal power plant and hence we proceed to examine whether the thermal power plant amounts to a factory or not - the FGD plant is meant for the purpose of reducing emission of Sulphur Dioxide gas present in the flue gas coming out at the time of generation of thermal power, which is hazardous to the environment. Thus, the said plant is a type of pollution control device, which is useful for the control of air pollution by reducing emission of Sulphur Dioxide gas generated in the thermal power station.
Both the conditions i.e. the FGD plant is a pollution control plant and is not located as part of a factory, are fulfilled and hence the applicant’s service i.e. setting up of FGD plant, which is a composite supply of works contract service, is squarely covered under tariff heading 995429, is entitled for the benefit of the entry No.3(iv)(e) of the Notification No.11/2017-Central Tax (Rate) dated 28.06.2017, thereby attracting GST at the rate of 12%.
Classification of the O&M services of the FGD plant - Applicable rate of GST - HELD THAT:- The applicant, during the O&M contract period of 3 years, is responsible for achieving emission norms as notified by the Ministry of Forest and Climate Change with the optimum utilization of energy and consumption of limestone. Further, the applicant is also responsible for appointing experienced service engineer, supervisor etc. for proper operation and maintenance of the FGD plant during the O&M period.
The supply of O&M of the FGD plant is the service covered under “Business Support Service”, falling under SAC 998599, as “Other Support Services not elsewhere classified”. Entry No.23 of the Notification 11/2017-Central Tax (Rate) dated 28.06.2017 covers support services falling under SAC 9985 and the impugned service of O&M of the FGD plant is covered under entry number 23(iii) attracting GST @ 18%.
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