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GST - Case Laws
Showing 1 to 20 of 171 Records
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2023 (1) TMI 1465
Rejection of refund claim - rejection on the ground that the petitioner has sought such refund under the provisions of Rule 95A and the Circular No.106/25/2019/GST dated 29.06.2019 - HELD THAT:- The respondent, does not dispute the premise in which the refund is sought for and he emphasizes that all questions otherwise may be left open for consideration including the consideration of the petitioner’s prayer for reversal of ITC based on the decision in SANDEEP PATIL, FLEMINGO TRAVEL RETAIL LIMITED & ANR., VERSUS UNION OF INDIA AND OTHERS. [2019 (10) TMI 360 - BOMBAY HIGH COURT].
Petition allowed.
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2023 (1) TMI 1459
Classification of goods - rate of tax - all types of jaggery are covered under the Notification No. 6/2022-Central Tax (Rate) dated 13-07-2022 or not? - HELD THAT:- The Applicant states that they are selling commission agents of Jaggery; that the jaggery is loosely wrapped and stitched in gunny bags or loosely wrapped in plastic covers for easy transport and to avoid unnecessary wastage in transportation, but not pre packed or labeled.
The Applicant states that agriculturist manufacture the jaggery mainly with sugar cane juice by mixing necessary chemicals in minor portion; that the boiled sugar cane juice will be put in approximately 5kg, 10kg and 30kg pots and it will be in the form of lump (jaggery). The weight of none of the lumps are similar to each other; that the jaggery will be brought to APMC Yard wherein it will be examined by APMC Authority. In APMC Yard it will be handed over to the godown of selling commission agent and after bidding, the goods will be given to purchaser and there after weighment is made before the purchaser.
The entry 91A says Jaggery of all types including Cane Jaggery (gur), Palmyra Jaggery, pre-packaged and labelled; Khandsari Sugar, pre-packaged and labeled is exigible to CGST at 2.5%. which means all types of jaggery which are prepackaged and labeled is exigible to CGST at 2.5%.
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2023 (1) TMI 1442
Challenge to SCN on the ground of lack of jurisdiction of the taxation authority - transactions in question were 'High Sea Sales' and thus subject to the Integrated Goods and Services Tax Act, 2017 or not - input tax credit - HELD THAT:- The scope of interference in the writ jurisdiction under Article 226 of the Constitution of India, against show cause notices, is limited. Though there is no bar as such for entertaining the writ petition at the stage of show cause notice, but it has been settled in catena of decisions by the Hon’ble Supreme Court as also this Court as to when writ petition can be entertained at stage of issuance of the show cause notice.
In the case of Union of India and Others Vs. Coastal Container Transporters Association and Others, [2019 (2) TMI 1497 - SUPREME COURT], while dealing with an issue with regard to dispute regarding classification of taxable services, their Lordships in the Hon’ble Supreme Court cautioned against exercise of writ jurisdiction holding 'When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show-cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show-cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show-cause notices there are no factual disputes.'
Conclusion - It is not required to entertain this writ petition at the stage of issuance of show cause notices but leave the petitioner to work out its remedy. It is made clear that all the issues raised by the petitioner are left open to be decided by the respondents after receipt of reply/detailed reply to show cause notices impugned in this writ petition pertaining to financial years 2019-20, 2020-21 and 2021-22.
Petition dismissed.
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2023 (1) TMI 1375
Cancellation of GST registration of petitioner - time limitation - rejection of the appeal on the ground of delay in submission of appeal - non-speaking order - HELD THAT:- This Court finds that the assessee has taken grounds in his memo of appeal wherein he has explained the delay in approaching the appellate forum which the first appellate authority has not considered and has passed an order based on a format in a routine manner.
This Court finds that such type of practice cannot be accepted from an appellate authority as the cancellation of registration of GST affects the business of an assessee and by cancellation of registration in a routine manner would only lead to evasion of more taxes by a businessman - The authorities should be more sensitive while dealing with the cancellation of registration of GST and if it is found that a plausible explanation has been afforded by the assessee, the authorities should pass an order so as to see that more and more business thrives in a legal manner and no tax is evaded by any person carrying of any business.
This Court finds that the appellate order dated 19.10.2022 passed by the first appellate authority is unsustainable in the eyes of law as it is a non-speaking order and same is hereby set aside. The matter is remitted to the first appellate authority to consider and decide the appeal afresh in accordance with law.
Writ petition stands partly allowed by way of remand.
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2023 (1) TMI 1365
Prayer to quash the cancellation of GST Registration order - fulfilment of dues under the GST Act pending - HELD THAT:- It is submitted by the learned counsel for the petitioner that the issue is covered by the Division Bench judgment of this Court in VINOD KUMAR VERSUS COMMISSIONER UTTARAKHAND STATE GST AND OTHERS [2022 (7) TMI 128 - UTTARAKHAND HIGH COURT] wherein this Court has held that the Commissioner is not an adjudicating authority, and, therefore, appeal u/s 107 of the Uttarakhand GST Act, 2017 shall not lie to the Commissioner.
We dispose of the writ petition giving liberty to the petitioner to file an application before the State Tax Officer, Rudrapur, Sector-2, Uttarakhand ventilating his grievances and if the petitioner pays dues under the GST Act pending against him, then his application for restoration of GST registration may be considered liberally.
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2023 (1) TMI 1364
Levy of IGST - ocean freight for services supplied by a person located in non-taxable territory - constitutional validity of N/N. 8/2017-Integrated Tax (rate) dated 28th June and entry 10 of the N/N. 10/2017 Integrated Tax (Rate) dated 28 June, 2017 - HELD THAT:- Keeping in view of the judgment in Union of India Vs. Mohit Minerals Pvt. Ltd [2022 (5) TMI 968 - SUPREME COURT], the petitioner is not liable to pay IGST on ocean freight for services supplied by a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India.
The impugned notification No. 8/2017-Integrated Tax (rate) dated 28th June and entry 10 of the Notification 10/2017 Integrated Tax (Rate) dated 28 June, 2017 are quashed as being ultra vires.
Petition disposed off.
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2023 (1) TMI 1361
Irregular availment of input tax credit based upon fake and fraudulent invoices - Seeking for issuance of Writ of Mandamus in the nature of restraint order to respondent No. 3 to not to interfere with the liberty and peaceful life of the petitioner and not to issue further summons under the provisions of Section 41-A of Cr.P.C - HELD THAT:- No strong case is made out by the petitioner calling for interference to the summons issued as has been sought for. Nonetheless, from the materials placed, there appears to be documents which would reveal that the petitioner otherwise is a physically challenged person. Therefore, it would not be justified in the said circumstances expecting the petitioner to be subjected to interrogation on day-to-day basis which may cause great inconvenience and hardship to the petitioner.
Considering the statement of the learned counsel for the Department that there are around 151 taxpayers who are said to have involved in availing fraudulent passing on input tax credits, the investigation may take some time. That of the 151 taxpayers, the petitioner being consultant of 122 tax payers, his presence for investigation also would be required in respect of each of the tax payers case is concerned.
Petition disposed off.
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2023 (1) TMI 1351
Transition of CENVAT credit under the new regime in terms of Section 140 of CGST Act, 2017 - amount involved was more than Rs. 50 lakhs - whether the petitioner is entitled to settle the dispute under SVLDR Scheme, 2019 under the aforesaid category viz., “Investigation, enquiry or audit Category”? - HELD THAT:- The petitioner was barred from filing the application / declaration under the SVLDRS Scheme, 2019 in view of Section 125(1)(e) of The Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. as there was no quantified. If indeed there was a quantification, a Show Cause Notice No.4/2020-(ADC) dated 19.02.2020 would have been issued to the petitioner within the period of 35 days from 14.01.2020 the date of the declaration filed by the petitioner in Form SVLDRS-1. On the date of hearing when the case was reserved for orders on 10.07.2023, the respondent has filed a copy of Order in Original No.24/2023-GST(ADC) dated 31.03.2023. wherein the demand proposed in SCN No.4/2020(ADC) dated 19.02.2020 has confined the demand.
The petitioner was not entitled to settle the dispute under the aforesaid scheme, although the Designated Committee of the 1st respondent has concluded that the Committee examined the case and found that an amount of Rs. 8,36,913/- was paid towards interest and the SVLDRS scheme does not allow the set off of interest against duty liability. Accordingly the Committee decided to accept only the pre deposit of duty of Rs. 20,76,274/- towards pre deposit.
The Division Bench of this Court in M/s.Win Power Engineering (P) Ltd., Represented by its Director T.K.Kumar Vs. The Designated Committee Sabka Vishwas Legacy Disputes Resolution Scheme, 2019 [2022 (12) TMI 603 - MADRAS HIGH COURT] has held The question of issuing statement by the Committee under Section 127 read with Rule 6 of the SVLDRS Rules, 2019 would arise only where the application filed itself falls within the four corners of Section 124(1)(d) as extracted above. Only where there was quantification of tax or duty in arrears, the scheme was applicable.
There is no merits in this writ petition. The Writ Petition has to therefore fail and is liable to be dismissed. The Writ Petition accordingly, stands dismissed.
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2023 (1) TMI 1350
Requirement to make pre-deposit - bank account of petitioner is frozen - HELD THAT:- The Court directs that limited to the amount required for making the predeposit, one of the bank accounts of the Petitioner i.e. its account with State Bank of India (SBI) which stands attached in form of a letter dated 15th July, 2022 addressed to the Bank by the Additional CT and GST Officer, Keonjhar (Annexure-2) shall remain lifted.
In other words, the SBI will permit the Petitioner to operate the said bank account only for the purposes of withdrawing the pre-deposit amount and for nothing else. Once that withdrawal is done, the attachment of the said account will continue and will be subject to the further orders that may be passed by the Appellate Authority in accordance with law.
In explaining the delay in filing the appeal, it will be open to the Petitioner to cite the pendency of the present petition as the reason and that will be considered in accordance with law by the Appellate Authority. The Court clarifies that it has not expressed any view in the matter.
Petition disposed off.
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2023 (1) TMI 1339
Cancellation of GST registration of the petitioner - obtaining such registration by fraud, wilful misstatement or suppression of facts - HELD THAT:- Section 29(2)(e) of the CGST Act undoubtedly enables the proper officer to cancel the registration even with retrospective effect. However, it should be borne in mind that such cancellation may be effected under clause (e) only based on material supporting an inference that the registration was obtained by means of fraud, wilful misstatement or suppression of facts. In this case, the registration was obtained in the year 2019 and no material has been placed on record to support the inference that the registration was obtained in early 2019 by means of fraud, wilful misstatement or suppression of facts. Therefore, the impugned order calls for interference.
The impugned order is quashed and the matter is remanded to the first respondent. Consequently, the respondents are directed to restore the registration subject to the outcome of re-adjudication.
Petition disposed off by way of remand.
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2023 (1) TMI 1329
Maintainability of petition - availability of alternative remedy of appeal - HELD THAT:- The petition stands disposed of with liberty to the petitioner to avail the alternative remedy observing that the petitioner shall be at liberty to seek exclusion of time spent in prosecuting this petition.
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2023 (1) TMI 1311
Penalty imposed under clause (a) of Section 129(1) of the Central Goods and Services Tax Act, 2017 - E-way bill not generated at the time of dispatch - huge difference in the value of goods declared in the Delivery Challans issued by the appellant - Stock transfer or goods removed to another person - HELD THAT:- The penalty imposed under clause (a) of Section 129(1) of the Central Goods and Services Tax Act, 2017 for violation of provisions made under the Central Goods and Services Tax Act, 2017, and rules made thereunder. The appellant is a registered company and has a good reputation in the market of windmill. Further, events made for not following the provisions of GST Law are inadvertently and there is no mala fide intention of the appellant to evade payment of GST. Therefore, the various plea made by the appellant in respect of imposing a minor penalty for this bona fide mistake is genuine and proper.
The penalty imposed under clause (a) of Section 129(1) of the Central Goods and Services Tax Act, 2017 by the adjudicating authority and calculating 200% of tax amount. The transaction in question is not attracting any tax liability as the same is stock transfer and goods removed under Delivery Challans. This action of the appellant is not attracting any tax liability under GST Law only procedures are prescribed for such transactions such as the issuance of a Delivery Challan for the movement of such goods and the issue of an e-way bill. As per the definition provided under section 2(47) of the said act prescribed such type of non-taxable supply also considered as 'exempt supply'. Therefore, the stock transfer of goods by the appellant is considered as exempted goods.
Any contravention of provisions made under the Central Goods and Service Tax Act, 2017, and rules made thereunder during the transit of goods, the same should be penalized under section 129 ibid. In present case it is undisputed facts that the E-way is not tendered by the transporter. The contention of the appellant in this regard is that there was glitch in GST E-way Portal hence E-way was not generated - the goods in question is non-taxable and as per Section 2(47) ibid, the goods which are non-taxable also considered as exempted supply hence penalty provision provided under section 129(1) ibid related to exempted goods, is applicable in the present case. Therefore, the Order for penalty under section 129(1)(a) of the Central Goods and Services Tax Act, 2017 is amended and the penalty Rs. 25,000/- under the Central Goods and Services Tax Act, 2017 and Rs. 25,000/- under of the Gujarat Goods and Services Tax Act, 2017 is imposed instead of Penalty of Rs. 42,22,604/- each under imposed under the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017.
Appeal allowed in part.
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2023 (1) TMI 1265
Request for refund rejected on the ground of time limitation - Availment of alternative remedy - HELD THAT:- It is trite that alternative remedy itself is no reason to reject a writ petition when it can be shown that the impugned orders are ex facie contrary to the settled propositions, including positive directions by the higher Courts. If it is undisputed that the limitation for the petitioner’s subject refund applications expired during the period between 01.03.2020 and 28.02.2022, the petitioner would be entitled for an extended limitation of ninety [90] days from 01.03.2022 and the applications are within this time, this Court is of the considered view that the impugned order sustained.
The petition is allowed quashing the impugned orders dated 20.07.2022 in Nos.44/2022, 45/2022 and 46/2022 (Annexures – A, A-1 and A-2) by the third respondent and the petitioner’s refund applications are restored for reconsideration.
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2023 (1) TMI 1256
Deletion/modification of condition on which regular bail was granted - deletion of condition of providing bank guarantee of an amount of Rs.3 Crore, for a period till final disposal of the case - HELD THAT:- On going through the averments made in the application that the applicant is in jail since September, 2022 and during his jail period, his conduct is also good. Keeping in mind the offence alleged, the application deserves to be allowed by modifying the condition imposed by Chief Judicial Magistrate, Vadodara.
The application is hereby allowed and the Condition imposed by Chief Judicial Magistrate, Vadodara vide order dated 14.12.2022 is hereby modified to the extent that the applicant is ready and willing to furnish bank guarantee of Rs.1.5 Crore, before Chief Judicial Magistrate, Vadodara, within period of two months from the date of receipt of the order of this Court. However, rest of the conditions imposed by Chief Judicial Magistrate, Vadodara remain intact.
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2023 (1) TMI 1250
Seeking grant of bail - evasion of tax based on false calculation - forging of documents - compounding of offences - HELD THAT:- Recently, the Hon’ble Supreme Court of India has, in case of RATNAMBAR KAUSHIK VERSUS UNION OF INDIA [2022 (12) TMI 263 - SUPREME COURT] has held that in a case of the present nature, the evidence to be tendered by the respondent would essentially be documentary and electronic. The ocular evidence will be through official witnesses, due to which there can be no apprehension of tampering, intimidating or influencing. Therefore, keeping all these aspects in perspective, in the facts and circumstances of the present case, we find it proper to grant the prayer made by the petitioner.
In present case, the petitioner is in custody since 21.07.2022 and charge sheet has been filed on 16.09.2022. Taking into consideration the contentions advanced by learned counsels for the respective parties and especially the law laid down by the Hon’be Supreme Court of India in case Ratnambar Kaushik; but, without expressing any opinion on the merits of the case, this Court deems it just and proper to enlarge the petitioner on bail.
The bail application is allowed and it is directed that accused-Vishesh Sahal S/o Shri Dinesh Prakash Sahal shall be released on bail under Section 439 Cr.P.C. in connection with afore-mentioned FIR registered at concerned Police Station, provided he furnishes a personal bond in the sum of Rs. 1,00,000/- together with two sureties in the sum of Rs. 50,000/- each to the satisfaction of the trial court with the stipulation that he shall comply with all other conditions laid down under Section 437(3) Cr.P.C.
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2023 (1) TMI 1238
Levy of penalty under Section 129(1)(b) of UPGST Act - respondents submitted that the petitioner having not come forward in response to notice issued for assessment of the amount, the penalty was to be levied in terms of Section 129(1)(b) of the Act - HELD THAT:- The order, imposing penalty on the petitioner, passed under Section 129(1)(b) of the Act, deserves to be set aside. It is undisputed case of the parties that the goods were accompanied by invoice and e-Way Bill, wherein the name of the petitioner is mentioned as consignor. The fact, that the petitioner is a registered dealer, is also not in dispute as even survey of petitioner's business firm was carried out immediately after detention of the goods and the firm was found to be carrying on its business.
Once the documents clearly establish the name of the consignor, who is a registered dealer in the State, the proceedings should have been initiated against the owner of the firm instead of the driver, so as to enable him to respond to the notice. In any case, once from the facts on record, which have gone undisputed, the petitioner, who is consignor in the invoice and e-Way Bill, claims himself to be the owner of the goods, the provisions of Section 129(1)(b) of the Act could not be invoked for imposing penalty.
The impugned order dated December 15, 2022 passed by the respondent no. 2, is set aside giving him the liberty to pass fresh order in accordance with law, after affording opportunity of hearing to the petitioner - Petition allowed.
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2023 (1) TMI 1237
Seizure of goods alongwith vehicle - levy of penalty - it is alleged that the goods were not matching with the invoices as certain goods were found either to be more or less than the quantity mentioned in the invoices - HELD THAT:- The present writ petition deserves to be allowed and the order impugned dated October 7, 2022 deserves to be set aside for the reason that the consignors and consignees are present and accepting ownership of the seized goods. The consignors are registered dealers in the State of U.P.
In view of the clarification given by the Board vide its Circular dated 31, 2018, levy of penalty under Section 129(1)(b) of the Act was not called for and could not be justified as Section 129(1)(a) of the Act provides that where owner of the goods comes forward for payment of penalty, the amount has to be two hundred per cent of the tax payable, whereas, in the case in hand, the penalty has been levied to the tune of hundred per cent of the value of the goods.
The impugned order dated October 7, 2022 passed by respondent no. 2 is set aside. The writ petition is allowed - The matter is remitted back to the competent authority for passing fresh order within a period of two weeks from the date of receipt of copy of the order.
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2023 (1) TMI 1231
Cancellation of registration of petitioner - case of the petitioner is that he has not been able to get the show cause notice issued by the respondent and, therefore, he could not submit the reply within the stipulated time - HELD THAT:- The present petitioner is also entitled for the benefit of the order passed by this Court in TECHNOSUN INDIA PVT. LTD. LUCKNOW THRU. ITS DIRECTOR AMIT KUMAR GAUTAM VERSUS UOI THRU. PRIN. COMMISSIONER, CENTRAL G.S.T., LKO. U.P. AND 2 OTHERS [2022 (9) TMI 1412 - ALLAHABAD HIGH COURT] - In the said judgment, the Court has held that the impugned order does not assign any reason whatsoever for cancelling registration of the petitioner and is passed only on the ground that reply to the show cause notice is not given. The non-submission of reply to the show cause cannot be a ground for cancellation of the registration.
The present petitioner is also entitled for the same relief. The benefit of the order shall also be made available to the present petitioner.
The order is set aside and the petitioner is permitted to appear before the respondent along with the reply to show cause notice and the certified copy of this order within three weeks from today - Petition allowed.
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2023 (1) TMI 1225
Classification of supply - inter-state supply or intra-state supply? - supply of mobile recharge coupons and Direct To Home (DTH) recharge vouchers to recipients, who are located in other States - HELD THAT:- In view of the fact that the amount of tax due on the transaction has already been paid and only dispute is whether it is to be treated as intra-state sale or inter-state sale, recovery of the demand raised vide order dated December 3, 2022 shall remain stayed till the next date of hearing.
Adjourned to April 27, 2023.
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2023 (1) TMI 1224
Detention of goods - Movement of goods through valid e-way bill - Levy of penalty under Section 129(1)(b) - bogus firms - it is alleged that selling dealer was non existent at the place where his firm is said to have been registered and only through the e-way bill generated, goods were being sent from some other undisclosed place and ITC was to be claimed - HELD THAT:- Both the authorities have recorded a categorical finding to the effect that selling dealer, M/s. Sunshine Overseas was registered at Shri Ram Colony, Siya Wali Masjid, Rajeev Nagar, North East Delhi, Delhi. The e-way bill mentioned the goods to have been dispatched from the said place. The statement of the driver recorded disclosed that goods were loaded from Mayapuri, Delhi, which is 18 kms. away from Rajeev Nagar. On physical verification of the premises of M/s. Sunshine Overseas, it is clear that no business transaction was being done from that place and the GST registration was suspended on 04.05.2022. The selling dealer till date has not responded to the notice of the taxing authorities nor has come forward to state that goods were sent by him through the e-way bill alleged to have been generated from the portal from the address mentioned therein. The taxing authorities had also scrutinized the records of the selling dealer for the assessment year 2021-22 and found that it was not indulging in any sale and purchase and bogus transactions were only made for claiming ITC.
Once, it is found that selling dealer was bogus firm, the goods carrying the e-way bill generated by such firm is of no benefit to the petitioners as the same has been used for transiting the goods from non bona fide dealer from undisclosed place.
Thus, no interference is required in the orders passed by respondent nos. 3 and 4 - petition dismissed.
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