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GST - Case Laws
Showing 61 to 80 of 123 Records
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2022 (6) TMI 605 - MADRAS HIGH COURT
Detention/seizure of vehicle alongwith the goods - it is alleged that the goods were being re-routed without proper e-way bill - Section 129 of CGST Act - HELD THAT:- In law and on the clear language of Section 129 of the Central Goods and Services Tax Act, 2017 (Act), the impugned retention of the vehicle is clearly invalid. The provisions of Section 129 provide for the detention and seizure of the vehicle and contents upon condition that an order of detention/seizure shall be passed at the time of detention/seizure, and duly served upon the person transporting the goods.
In the present case, Mr.Prasanth, on instructions, confirms that no such order of detention has been issued and consequently the question of service upon the petitioner does not arise. That apart, the provisions of Section 129 (3) require the proper officer detaining or seizing the goods to issue a notice specifying the penalty payable and thereafter pass an order within 7 days from the date of service of the notice in relation to the detention/seizure effected - In the present case, admittedly, no such notice has been issued till date though the seizure has been effected as early as on 30.05.2022 - In the aforesaid circumstances, the act of the respondent in insisting that the petitioner retain the vehicle at the present location is in gross contravention of the statutory provisions.
Writ petition is allowed.
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2022 (6) TMI 604 - JHARKHAND HIGH COURT
Recovery of Government dues - alleged dues towards Central Goods and Services Tax without giving the benefit of Input Tax Credit, admissible to the Petitioner - Section 79 of the CGST Act - HELD THAT:- The original cause of action raised by the writ petitioner and also the subsequent development brought on record through the supplementary affidavit filed on 08.06.2022, has been noted. Upon deposit of 10% of the disputed tax amount during pendency of two appeals preferred by the petitioner, recovery of any remaining balance is deemed to have to been stayed in view of Section 107 Sub-section (6) and (7) of CGST Act, 2017. The impugned Garnishee proceeding therefore, cannot be given effect to and in fact has become infructuous. Any fresh demand arising out of the decision of the Appellate Authority can be realized by issuance of GST APL-04. As such, there is no purpose in keeping the writ petition pending.
Application disposed off.
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2022 (6) TMI 603 - GUJARAT HIGH COURT
Seeking release of vehicle alongwith the goods - Section 129(1) of the CGST Act - trading of copper and copper scrap - Genuinness of transaction was under doubt - HELD THAT:- It is not in dispute that when the conveyance was intercepted along with the goods, the driver of the conveyance did produce necessary documents which are required under the Act as well as the Rules like invoice, E-way bill, Lorry receipts.
On depositing an the amount of Rs. 17 lacs and furnishing the bond of Rs. 65 lacs with the respondent-Authority, without prejudice to the rights and contentions to be raised before the adjudicating authority in the pending proceedings by the petitioner, the respondent-authority shall release the vehicle and goods in question. The inquiry with respect to Form GST MOV-10 shall proceed further in accordance with law.
Petition allowed in part.
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2022 (6) TMI 602 - TELANGANA HIGH COURT
Provisional attachment of Bank Accounts - time limitation - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Section 83 of the CGST Act provides for provisional attachment to protect revenue in certain cases - As per Sub-Section (2) of Section 83 of the CGST Act, every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under Sub-Section (1) of Section 83 of the CGST Act.
In the instant case, provisional attachment was ordered on 09.02.2021. Thus, the period of one year has expired. Though a statement has been made in the counter affidavit that the provisional attachment was reviewed by the Commissioner on 11.03.2022 whereafter such attachment for further period was approved, no such order has been placed on record. In any case, Sub-Section (2) of Section 83 of the CGST Act is very clear. Every provisional attachment made under Sub-Section (1) of Section 83 of the CGST Act shall cease to have effect after expiry of a period of one year from the date of the order made under Sub-Section (1) of Section 83 of the CGST Act.
Continuance of the impugned order of provisional attachment dated 09.02.2021 cannot be sustained. The same is accordingly set aside and quashed - Petition disposed off.
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2022 (6) TMI 553 - CALCUTTA HIGH COURT
Disbursal of refund amount - Revenue and assessee both have filed writ petition - non-consideration of definition of ‘non-taxable supply’ as defined in the CGST Act, 2017 or not - whether the CGST authorities concerned have ignored the expression ‘mutatis mutandis” appearing in Section 2 (2) of Cess Act and have not given any justification as to why domestic supply of finished goods which are subject to nil rate of Compensation Cess cannot be construed as exempted supplies. - HELD THAT:- From legislative scheme of the Cess Act it appears that the cess is an impost to counterbalance the loss of revenue of the States on account of subsumption of various taxes commencement of the GST regime. Hence, cess is a levy which partakes the character of all the levies, which now are subsumed in GST. Cess is akin to the components of GST, which is a constitutionally approved amalgam of State taxes, which existed prior to the commencement of the GST regime. The goods and services Tax Compensation Cess Rules, 2017 were also framed and made effective from 1st July, 2017 wherein the Central Goods and Services Tax Rules, 2017 were adapted.
There are no reason to interfere with the impugned order dated 5th February, 2021, for the reason that Appellate authority while passing the impugned order has neither committed any procedural irregularity nor any jurisdictional error nor any violation of principles of natural justice and the impugned order is based on cogent reasons and is speaking one and so far as findings of fact is concerned, in exercise of constitutional writ jurisdiction under Article 226 of the Constitution, this Writ Court is not inclined to act as an Appellate authority and differ with the same and substitute the said findings of the Appellate authority.
Action of withholding of the petitioner/assessee’s claim of refund in question by the respondent CGST authority and not refunding the same to the petitioner in spite of the order of the Appellate authority dated 5th February, 2021, holding such claim in favour of the assessee company/petitioner, is arbitrary and unjustified and accordingly respondent CGST authorities concerned are directed to refund the amount as per the aforesaid order of the Appellate authority
Petition disposed off.
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2022 (6) TMI 552 - CALCUTTA HIGH COURT
Validity of refund order - Failure to get Certificate of Export in time - the revisional authority passed an order assessing the tax liability of the appellant/writ petitioner - undue benefit of circumstances which are beyond the control of the appellant/writ petitioner - HELD THAT:- The appellant/writ petitioner received the document dated August 25, 2021 which impacts the tax liability of the appellant/writ petitioner. The appellant/writ petitioner is not at all fault in not receiving the document dated August 25, 2021 that the appellant/writ petitioner seeks to place before the revisional authority. It is not a case that the appellant/writ petitioner was in possession of certain documents which the appellant/writ petitioner did not place before the revisional authority. Rather, it is a case where the appellant/writ petitioner received a document subsequent to the order of the revisional authority.
Tax authorities are to adjudicate upon the tax liability in accordance with law. The liability to taxation in respect of assessee should not escape assessee and likewise where the assessee was not in a position to show certain evidences which impacts the tax liability, reasonable opportunity should be afforded to such assessee to bring such evidences to the notice of the tax authorities.
Another opportunity should be granted to the appellant/writ petitioner to place the document dated August 25, 2021 before the revisional authority - the appellant/writ petitioner is at liberty to approach the revisional authority within fortnight from date with regard to the order of assessment dated May 3, 2021. If so approached, the revisional authority is requested to reconsider its order passed on refund taking into account the document dated August 25, 2021 in accordance with law.
Application disposed off.
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2022 (6) TMI 532 - BOMBAY HIGH COURT
Refund of GST - services rendered abroad (export of services) - Principles of unjust enrichment - incidence of tax passed to the recipient company or not - burden to prove - HELD THAT:- The Petitioner has placed on record a copy of the agreement. It shows that the ASCL is located outside of India and the petitioner company is located in India. And the production services are rendered by the petitioner in the U.K. It is, thus, clear that the services rendered by the petitioner fall within the expression ‘export of services’.
The applicant is entitled to the refund of the amount if the incidence of tax has not been passed on to the recipient of the services. If the incidence of tax has been passed on , petitioner is not entitled to the refund - Agreement executed between the petitioner and the ASCL shows that the approved production budget includes all costs in connection with the production services including the amount of Indian Goods and Services Tax Act. This shows that GST is included in all costs in connection with production services. Petitioner is a service provider and ASCL is the service recipient.
This court relying on the Apex court judgment in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] held that when services are rendered abroad, CGST will not apply - In the case at hand also, the petitioner has rendered services to the ASCL abroad i.e. in U.K. Therefore, GST does not apply to the services rendered abroad as they amount to the export of services. In addition to that the respondent could not establish that the incident of tax has been passed on to the recipient ASCL located in London. Thus, both, the Adjudicating Authority and the Appellate Authority committed error in rejecting the refund of GST of the petitioner. Therefore, orders of both the authorities cannot be sustained and need to be set aside.
Petition allowed - decided in favor of petitioner.
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2022 (6) TMI 531 - DELHI HIGH COURT
Reimbursement of Service Tax / GST - Scope of mutual contract - Levy of Service Tax - onboard catering services provided by the respondent under a temporary license issued to it - respondent is obliged to serve a welcome drink to the passengers who boarded the subject trains or not - Goods and Services Tax (GST) on production charges/supply of meals after 01.07.2017 - person liable for financial burden concerning the food which got wasted due to cancellation or the failure of the passengers to turn up - entitlement of relief alongwith interest.
HELD THAT:- It is only on 06.04.2017, when IRCTC indicated to the respondent, that unless it gave its unconditional acceptance to the policy framework captured in its communication dated 07.02.2017, its temporary license, which was expiring on 18.06.2017, would not be extended, that the respondent agreed to provide a welcome drink and bear the financial burden qua the same - Faced with this difficult choice, and having regard to the fact that it had already invested funds in the contractual arrangement arrived at with IRCTC, on 12.04.2017, the respondent accepted the terms indicated in the communication dated 07.02.2017, concerning the supply of welcome drink for the period that was to extend beyond 18.06.2017 - the claim of the respondent qua welcome drink was restricted to the period spanning between 19.12.2016 and 18.06.2017. To be noted, the temporary license was extended by IRCTC till 04.07.2018.
The learned arbitrator, correctly concluded that IRCTC could not have deducted the amounts expended by them towards serving welcome drink to the passengers from the bills of the respondent.
Whether IRCTC is obliged to reimburse the amount deposited by the respondent towards GST levied, with effect from 01.07.2017, on production charges? - HELD THAT:- IRCTC also does not seem to have disputed the fact, that it has recovered GST from the passengers by factoring the same in the train fare - the argument advanced by IRCTC, that it is not obliged to reimburse GST to the respondent, even if it establishes proof of payment of same, seems completely untenable.
As correctly concluded by the arbitrator, GST from 01.07.2017 would have to be reimbursed to the respondent by IRCTC, upon the proof of deposit of the same with the concerned statutory authority - IRCTC has already factored GST in the train fare, lends heft to the stand taken by the respondent, that it should be reimbursed GST deposited by it with the concerned statutory authority. Furthermore, IRCTC was in a position to, in fact, perhaps, claim ITC, at least for the period spanning between 01.07.2017 and 31.03.2018.
The partial/interim award dated 15.12.2020, rendered by the learned arbitrator is neither patently illegal nor perverse, as was sought to be portrayed by Mr Majithia, on behalf of IRCTC - Appeal dismissed.
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2022 (6) TMI 530 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Maintainability of application for advance ruling - recipient of services - Benefit of Concessional rate of tax - works contract service received from the contractors - applicability of Entry No. 3(v) (da) of Notification 11/2017 Central Tax (Rate) dated 28/06/2017, as amended time to time - construction of common amenities such as club house, swimming pool and amenities of like nature - HELD THAT:- Sub-section (1) of section 103 of the CGST Act, 2017 categorically speaks that the ruling pronounced is binding only on the applicant and on the concerned officer or the jurisdictional officer in respect of the applicant. If an application is filed by the recipient of goods or services or both on the taxability of his inward supply of goods or services and ruling is pronounced accordingly, such ruling shall be binding only on him and on the concerned officer or the jurisdictional officer of him. In no way, the ruling shall be binding on the supplier of such goods or services.
Any provisions of the Law, therefore, should not be interpreted in a way which defeats the very purpose of the objective and purpose of the legal provision. Thus, in the subject application, the applicant cannot seek an advance ruling in relation to the supply where it is a recipient of services.
Since provisions of Sec 95 (a) are very clear and unambiguous that only a supplier can file application for advance ruling, hence, the contentions of the applicant are not accepted.
Thus, no ruling can be given on the Questions, since the applicant is recipient of services in respect of supplies involved.
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2022 (6) TMI 529 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Scope of Advance Ruling application - Levy of Service tax - pure agent or not - Applicant acted in the capacity of being a NEEM facilitator - receiving reimbursement of stipend amounts from the various Trainer Institutes and remitting the same to the trainees - stipend amount forms a part of the taxable value or not - HELD THAT:- In the case of this Authority, Advance ruling means a decision provided by the Authority to an applicant on matters or on questions specified in sub-section (2) of section 97, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the appellant - the question regarding pure agent service, does not pertain to any of the matters specified in clauses (a) to (g) of Section 97 (2) of the CGST Act, 2017 and therefore the same is not answered.
Valuation - inclusion of stipend paid tot he trainees, as per the agreement - Pure Agent - HELD THAT:- A monthly stipend shall be paid to the trainees by Trainer Institute by way of issuing a cheque in the name of the Applicant who is required to make such payment to the trainees. The sample agreement submitted mentions that, the Applicant is to act as a “Pure Agent” of the Trainer Institute.
In the case of IN RE: M/S. YASHASWI ACADEMY FOR SKILLS [2021 (8) TMI 1017 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] also, the Applicant Company was registered as an Agent under National Employment Enhancement Mission ('NEEM') of the Government of India and acted as a facilitator or extending support for mobilizing the trainees under NEEM Scheme of Government of India as per regulations, under notification issued by All India Council for Technical Education (AICTE), for providing on the job practical training in industries to trainees to enhance their future employability, and for which the applicant entered into agreements with various companies/ organizations (called as industry partners) to impart actual practical training to the students. In the said case also, the applicant in addition to taxable amounts received from its Industry Partners for services rendered, also received Stipends amounts (payable by the Industry Partners to the Trainees) which was paid in full to the trainees - the issue is thus answered in negative.
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2022 (6) TMI 528 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of goods - PV DC Cables manufactured and supplied by Leoni Cable Solutions (India) Pvt Ltd to its Customers (who are into business of manufacturer of Solar Power Generating System or EPC Company setting up a solar power plant) - classifiable under Entry number 234 of Schedule I of Notification No. 1/2017- Central Tax (Rate) (as amended) dated 28 June 2017 liable to CGST at 2.5% or under Entry number 395 of Schedule III of Notification No. 1/2017- Central Tax (Rate) (as amended) dated 28 June 2017 liable to CGST at 9%?
Whether the impugned cables which connect the solar modules & inverters in a photovoltaic system and are used to carry electricity from the SPGS to the inverters can be treated as parts of the SPGS? - HELD THAT:- The applicant is clearly stating that the impugned cables are not a part of the SGPS i.e. the actual System which generates electricity from Sunlight. The impugned cables as per the application have no part to play in the generation of Solar Power which is the function of SGPS. These cables only transfer the electrical energy generated by the SGPS, to the Inverters where such electrical energy is stored for further use - the SGPS generates electrical energy from sunlight and the impugned cables, as any cables, just carries the generated electricity from the SGPS to the Inverters. Further as per Notes to Section XVI of GST Tariff, in Note 2 referring rules for classification of parts of machines, the parts of the articles of heading 8544 have been excluded.
The applicant has not been able to bring clearly out as to how the impugned cables can be considered as parts of the SGPS. In fact, the submissions clearly show that it the impugned cables just carry electricity to the inverters and in our opinion the subject cables cannot be considered as a parts of the SGPS and therefore cannot be covered under Sr. No. 234 mentioned above. Another fact to understand is that the said Sr. No. 234 has been totally omitted from Schedule I of Notification No. 01/2017 dated 28.06.2017, vide Notification No. 08/2021 - CTR dated 30.09.2021.
Whether the impugned cables can be covered under Sr. No. 395 of Schedule III of Notification No. 01/2017 dated 28.06.2017? - HELD THAT:- The description of goods at Sr. No. 395 of Notification No. 01/2017 CTR dated 28.06.2017 is “Insulated (including enamelled or anodised) wire, cable (including co-axial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors.” - From a reading of para nos 5.7, 5.7.1 and 5.7.2 it is observed that the description of goods in Sr. No. 395 exactly tallies with the Tariff Entry 85.44 which goes to show the intention of the government to classify the impugned goods under Sr. No. 395 of Schedule III of Notification No. 01/2017 CTR dated 28.06.2017 as amended from time to time.
Notification No. 41/2017 - CTR dated 14.11.2017 is effective from 14.11.2017. Prior to this date Sr.No. 395 of Notification No. 01/2017 - CTR dated 28.06.2017 covered only Winding wires; coaxial cables; Optical Fiber (Chapter 85.44) and there was another Heading at Sr. No. 161 of Notification on No. 01/2017 - CTR dated 28.06.2017 which covered the impugned cables - the impugned cables are covered under Sr. No. 395 of Schedule III to Notification No. 01/2017 dated 28.06.2017. Sr. No. 395 (taxable @ 18% GST) as amended by Notification No. 41/2017 - CTR dated 14.11.2017. Therefore Sr. No. 395 is applicable in the instant case only with effect from 14.11.2017.
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2022 (6) TMI 527 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - construction service supplied by the Respondent - it is alleged that the Respondent had not passed on the benefit of input tax credit to him by way of commensurate reduction in the price - violation of the provisions of Section 171 (1) of the CGST Act, 2017 or not - penalty - HELD THAT:- The Authority finds that, it is established that there had been no additional benefit of ITC to the Respondent and hence he was not required to pass on the benefit to the Applicant No. 1 by reducing the price of the flat. The Applicant No.1 could have availed the above benefit only if the above project was under execution/implementation before coming into force of the GST as the Respondent would have been eligible to avail ITC on the purchase of goods and services after 01.07.2017 on which he was not entitled to do so before the above date. Since there was no basis for comparison of ITC available before and after 01.07.2017, the Respondent was not required to recalibrate the price of the flat due to additional benefit of ITC. Hence, the allegations of the Applicant No. 1 made in this behalf are incorrect and therefore, the same cannot be accepted.
The Authority finds that the Respondent has not contravened the provisions of Section 171 (1) of the CGST Act, 2017 and there are no merit in the Application filed by the Applicant and the same is accordingly dismissed.
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2022 (6) TMI 526 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Duplex Row House - it is alleged that the Respondent had not passed on the benefit of ITC although he had charged GST @12% w.e.f. 01.07.2017 from the said Applicant - contravention of section 171(1) of GST Act - penalty - HELD THAT:- It is clear from a plain reading of Section 171 (1), that it deals with two situations- one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the said issues, it is apparent from the DGAP's Report and the available record that the Completion Certificate for the project “Sahej Valley” was issued on 31.03.2016, i.e. prior to the date of introduction of GST through which the provisions of Anti-Profiteering were introduced. In support of the claim, the Respondent has also produced a copy of sale deed for other units sold post completion in October, 2017, to establish that the project was completed in March, 2016 and that no Service Tax/GST was charged on such units sold post completion. Since, the Completion Certificate was obtained for the subject project before the introduction of GST and also there has not been any reduction of GST rate in the instant case, the provisions of Section 171 dealing with Anti-profiteering cannot be made applicable to the said project in the view of the fact that there was no additional ITC which had been utilized by the Respondent, which was relevant for establishing allegation of profiteering. Further, no fresh demand has been raised by the Respondent upon Applicant No.1 in the post-GST regime, only a reminder for previous demand was issued.
Launching of the project, Agreement to sell and Completion Certificate of the project had taken place in the pre-GST regime and hence, there was no post-GST tax rate or ITC structure which could be compared with the pre-GST tax rate and ITC and also the anti-profiteering provisions related to Section 171 were not in existence at that time. Accordingly, it is clear that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it does not qualify to be a case of profiteering.
As per the provisions of Rule 133 (1) of the CGST Rules, 2017 this order was required to be passed within a period of 6 months from the date of receipt of the Report from the DGAP under Rule 129 (6) of the above Rules. Since, the present Report has been received by this Authority on 31.12.2020 the order was to be passed on or before 30.05.2021 However, due to prevalent pandemic of COVID-19 in the Country this order could not be passed on or before the above date - Hon'ble Supreme Court in Suo Moto Writ Petition (C) no. 3/2020, vide its Order dated 10.1.2022 [2022 (1) TMI 385 - SC ORDER] has directed that In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, the longer period shall apply.
The instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. Therefore, the allegation that the Respondent has not passed on the benefit of ITC in this case is not found sustainable - Application dismissed.
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2022 (6) TMI 467 - CALCUTTA HIGH COURT
Blocking of input tax credit / electronic credit ledger account - Grant of interim order sought for in the writ petition - recovery of tax - HELD THAT:- This court is of the view that while declining to interfere with the order of the learned Single Judge, it is deemed appropriate to direct the concerned respondent to dispose of the representation dated 21.02.2022 by taking note of the legal position and also bearing in mind that unless the appellant, who is a registered dealer, is allowed to carry on business and tax cannot be recovered. We should not be mistaken for saying as if errant dealer should be left scot free, if there is any illegal arrangement of input credit tax stringent action should be taken. However, till final orders are passed, if the credit which was not availed on the date when the blocking was done namely 16.02.2022 is also to be blocked, then it might cause prejudice to the dealer.
The appeal stands disposed of.
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2022 (6) TMI 466 - CALCUTTA HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Violation of principles of natural justice - opportunity of being heard provided or not - HELD THAT:- The merits of the matter are not entertained but it is convincing that the arguments made by the learned counsel for the appellant that there has been violation of principles of natural justice. It is because of the fact that the appellant has been granted seven days time to submit its reply to the show cause notice dated 27.03.2022. The appellant’s case is that they were not communicated with the same on 27.03.2022 but received the same only on 29.03.2022. Even going by the date of the show cause notice dated 27.03.2022, the appellant had time to submit its reply on or before 02.04.2022. However, the impugned order was passed on 31.03.2022 i.e. before the stipulated time limit.
When an opportunity is given to show cause it should be an effective opportunity and not an empty formality. The interest of the revenue has been sufficiently safeguarded as the goods have been released on furnishing of bank guarantee and bond. Therefore, adequate opportunity should be granted to the appellant and thereafter the authority should take a decision in the matter.
Appeal allowed.
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2022 (6) TMI 465 - DELHI HIGH COURT
Freezing of Bank Accounts of petitioner - Rule 86A(3) of the CGST Rule 2017 - HELD THAT:- Issue Notice.
List the matter on 31.08.2022.
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2022 (6) TMI 464 - DELHI HIGH COURT
Freezing of Bank Accounts of petitioner - Rule 86A(3) of the CGST Rule 2017 - HELD THAT:- Issue Notice.
List the matter on 31.08.2022.
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2022 (6) TMI 463 - PUNJAB AND HARYANA HIGH COURT
Cancellation of registration of petitioner - application of revocation filed beyond prescribed time - invocation of extended period of limitation - Section 30 of the CGST Act - erroneous reading of N/N. 34 of 2021 dated 29.08.2021 - HELD THAT:- Reliance placed in the case of case of AARCITY BUILDERS PRIVATE LIMITED, M/S. NAND SPARK SHINE COMPANY, M/S. VSL SECURITY SERVICES PVT. LTD. AND ORION AUTOMOBILES PVT. LTD. VERSUS UNION OF INDIA AND OTHERS, STATE OF HARYANA AND OTHERS [2021 (12) TMI 890 - PUNJAB AND HARYANA HIGH COURT] where it was held that 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.
The proposition of law laid down in Aarcity Builders Private Limited case need not be disputed - also it is not a case where a vested right has accrued in any of the parties by efflux of time. Thus, to hold that the plea of limitation would have an effect to defeat the right to livelihood vested in the petitioner, shall be against the spirit of Constitution of India.
It is directed that in case, the petitioner now moves an application/appeal 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 be decided on merits, in accordance with law - petition allowed.
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2022 (6) TMI 462 - AUTHORITY FOR ADVANCE RULING, GUJARAT
Liability of GST - person liable to pay GST for transportation of goods of customers located by an independent agency engaged by the applicant - refrigerated vehicles used for transportation of the applicant’s goods travelled back on return journey, after unloading and delivering the applicant’s goods at the destination - person liable to GST for transportation of goods of the customers located by an independent agency when the vehicles used for transportation of the applicant’s goods are used for further transportation, after unloading the applicant’s goods at the destination of the applicant’s branches or depots - person liable to pay GST in respect of goods transport agency service used for bringing back empty plastic trays belonging to the applicant from various places (like branches or depots) to the applicant’s premises - Availment of Input Tax Credit of the entire amount of GST paid on the transaction of the applicant’s goods in refrigerated vehicles although such vehicles travel empty (i.e. without the applicant’s goods being loaded therein) during the return journey.
HELD THAT:- The Serial no 1 to the Notification 13/ 2017-CT (R) dated 28-6-17 reads that the GST liability for supply of service by a GTA in respect of transportation of goods by road to a registered person shall be paid by the recipient of such services. We find M/s Vadilal liable to GST under RCM for the GTA service supplied to it.
As per GST scheme of law, consignment note issuance, by whatever name called, is mandatory for a GTA. The issuance of consignment note indicates that the lien on goods has been transferred to the transporter and the transporter becomes responsible for the goods till its safe delivery to the consignee. This aspect is evident in the relationship between Vadilal and its GTA but is absent in the relationship between Vadilal and Celcius - the requirement of consignment note issuance by a GTA cannot be brushed aside - there are no merit to deem Vadilal as a GTA.
Person liable to pay GST for transportation of goods of customer of Celcius (an independent agency engaged by Vadilal) - HELD THAT:- Vadilal has no locus standi, vide Section 95 CGST Act, to seek Ruling on the tax liability for a transaction entered between M/s Celcius and its (Celcius’s) customers, wherein Celicus is the service provider and its customers are the service recipient - Section 103(1) CGST Act, which reads that Advance Ruling shall be binding only on the applicant who had sought it and on the concerned officer/ jurisdictional officer in respect of the applicant. In this case, our Ruling is binding on the Vadilal. This subject Ruling, vide Section 103(1) CGST Act is not binding on Celcius and its service recipients. Further, Section 95(a) CGST Act defines advance ruling as a decision provided in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant.
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2022 (6) TMI 424 - BOMBAY HIGH COURT
Execution of Arbitral Award passed in favour of the Applicant and against the Municipal Corporation of Greater Mumbai (MCGM) - withholding of amount towards the alleged GST liability of the Applicant - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It can hardly be disputed that in case of a normal taxable supply, the supplier issues a tax invoice to the recipient of the goods and services and receives the amount from the recipient along with the GST and then discharges its GST liability to the Government. This, as Mr. Andhyarujina puts it, is a “forward charge”. Then a concept of “Reverse Charge” is also introduced in the GST regime. In the case of a Reverse Charge, the supplier of the services or goods does not charge GST on the invoice and receives the amount from the recipient without adding GST to his invoice. This is because under the Reverse Charge Mechanism, the liability to pay the GST is on the recipient of the goods or services instead of the supplier of such goods or services. This is however only in respect of the categories notified under Sections 9(3), 9(4) & 9(5) of the CGST Act and Sections 5(3), 5(4) and 5(5) of the IGST Act. There are similar provisions, namely, Sections 9(3), 9(4) & 9(5), even in the Maharashtra Goods and Services Tax Act, 2017 (the State Goods and Services Tax Act).
From the N/N. 10 of 2017-Integrated Tax (Rate) dated 28th June 2017, it is clear that any service supplied by any person, who is located in a non-taxable territory to any person located in the taxable territory [other than a non-taxable online recipient], it is the recipient of the service who would be liable to pay the GST on a Reverse Charge basis - In the present case, it is not in dispute that the Applicant was the supplier of services who is located in a nontaxable territory. The MCGM is a person located in the taxable territory and is not a non-taxable online recipient. This being the case, by virtue of the aforesaid Notification, it would be the MCGM [the recipient of the service] who would be liable to pay the GST on a Reverse Charge basis as contemplated under Section 5(3) of the IGST Act.
In the present case, the liability to pay GST has arisen because there were disputes between the Applicant and the MCGM on the amounts payable by the MCGM to the Applicant. Since, the MCGM did not make those payments, the Applicant invoked Arbitration which finally culminated into an Arbitral Award dated 23rd June 2014. Since the Arbitrator found that there were monies due and payable by the MCGM to the Applicant and which were not paid, the Arbitral Tribunal awarded interest on the aforesaid amounts at the rates more particularly mentioned in the Arbitral Award - The rates and prices bid submitted by the Applicant in the priced Bill of Quantities and which were to include all taxes and duties would certainly not have taken into consideration that the MCGM would not make payment in a timely manner, raise disputes, which would then make them liable to pay interest and which would be subjected to the levy of GST. This is also made clear from clause 4, which stipulates that the rate of price (which is to include all taxes and duties) shall be entered against each item in the priced Bill of Quantities whether quantities are stated or not. The costs of item against which the contractor has failed to enter a rate of price shall be deemed to be covered by other rates and prices entered in the Bill of Quantities.
When one reads clauses 3 & 4 of the contract in conjunction with each other, the inescapable conclusion is that the “taxes and duties” referred to in clause 3 did not in any way contemplate the liability of GST that may arise due to payment of interest for delayed payment of any consideration for the supply of the services. This, according to me, was never in contemplation of the parties when they entered into the contract. It is therefore opined that clause 3 of the contract does not come to the assistance of the MCGM to deduct the GST of Rs.67,94,965.02/- from the Applicant. It is the MCGM, under Notification No.10 of 2017 – Integrated Tax (Rate) issued by the Government of India, Ministry of Finance (Department of Revenue), dated 28th June 2017, read with the provisions of Section 5(3) of the IGST Act, who would be liable to pay the GST to the Government on a Reverse Charge basis and the same cannot be deducted from the dues payable to the Applicant.
Thus, it is directed that the MCGM shall credit Bank Account No.5020035159821 in HDFC Bank Limited, Nariman Point, Mumbai – 400 021 with the sum of Rs.67,94,965.02 on or before 30th August 2022. Once this amount is credited in the aforesaid Bank Account, the Arbitral Award dated 23rd June 2014 shall be marked as fully satisfied and the Applicant would thereafter have no claim whatsoever against the MCGM.
The Execution Application is disposed of.
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