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GST - Case Laws
Showing 41 to 60 of 156 Records
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2020 (2) TMI 1185
Effect of order of Moratorium declared under IBC - proceeding pending before the GST authorities under the GST Act 2017 - HELD THAT:- The Commissioner takes a view that by the order dated 26.08.2019, the National Company Law Tribunal has declared a moratorium under Section 14 (Section 13) of The Insolvency and Bankruptcy Code, 2016 against the corporate debtor in respect of execution of any judgment and decree or order of any court of law, tribunal, arbitration panel or other authority. Accordingly, in the order of the Commissioner a question was raised whether issuance of show cause notice by the GST authorities would mean to be an execution of an order or it be treated as decree against the petitioner. By raising such question, the objection that the further proceeding is not maintainable because of the order of moratorium of the National Company Law Tribunal was overruled.
From the order dated 15.1.2019, it is discernible that the aspect as to whether a pending proceeding before GST authority is also a proceeding as provided in Section 14- (1) (a) has not been examined by the Commissioner of GST and consequently the implication thereof i.e. if it is a proceeding whether the order of moratorium would also cover the said proceeding, has also not been looked into.
The matter is remanded back for a fresh consideration by examining the aspect as to whether the order of moratorium of the National Company Law Tribunal also covers the proceeding pending before the GST authorities under the GST Act 2017 - Petition allowed by way of remand.
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2020 (2) TMI 1184
Reduction in the rate of GST - Situation pre and post GST implementation - It is pointed out by learned senior counsel for the petitioner that the respondents have acted unreasonably, inasmuch, as, for the period prior to reduction of GST from 12% to nil w.e.f. 27.07.2018, the DGAP had computed the base price on average basis. However, for the period after the GST rate became nil w.e.f. 27.07.2018, the base price has been worked out item by item.
HELD THAT:- Our attention has been drawn to the tabulation filed by the petitioner before the DGAP, which shows that in respect of several items sold by the petitioner, after the reduction of GST to nil, the price actually fell, however, while computing the profiteered amount; such cases have been excluded from consideration - Prima facie, it appears to us that the impugned order needs consideration and the petitioner has been able to make out a strong case for grant of interim relief.
List on 24.09.2020.
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2020 (2) TMI 1159
Release of detained goods alongwith vehicle - Section 129 and 130 of the GST Acts - it was argued by the learned counsel appearing for the writ applicants that the integrated goods and services tax has already been paid on the goods in question at the time of import thereof - HELD THAT:- While passing the said order, this Court, by way of interim relief, directed the respondents to release the vehicle as well as the goods forthwith - The writ applicants availed the benefit of the interim order passed by this Court and got the vehicle, along with the goods released. The proceedings, as on date, are at the stage of show cause notice, under Section 130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law.
It shall be open for the writ applicants to point out the recent pronouncement of this Court in the case of SYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT].
It is now for the applicants to make good their case that the show cause notice, issued in GST-MOV-10, deserves to be discharged - this writ application stands disposed of.
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2020 (2) TMI 1158
Demand of GST, penalty and confiscation of goods - detention of vehicles / trailers - Purchase and movement of Cranes from another state - default related to E-way Bill - Validity of proceedings initiated under Section 129(3) of the Central Goods Service Tax Act, 2017 - allegation of violation of Section 129 (3) and (6) for the consequential initiation of confiscation proceedings after expiry of fourteen days - HELD THAT:- The controversy involved in the present case assailing the impugned notices cannot be adjudicated at this stage of the matter, particularly when the petitioner has already submitted reply. The aforementioned reply is not a routine reply but backed by relevant provisions and circulars as mentioned above, which is required to be considered dispassionately and in a pragmatic manner - on the merits of the matter, it is not commented, as it may have a far reaching effect in respect of any adjudication.
It is being clarified that in the kind of a transaction referred to therein and involved in the present case, there is no question of any supply and thus applicability of the GST would, in such circumstances, be not as already observed without being examined by the authorities who issued the notices and the appellate authorities if any.
The petitioner is directed to submit a bank guarantee in terms of the provisions of Section 129 of the CGST Act for release of the vehicle. However, that would be without prejudice and subject to the outcome of the decision to be taken by the adjudicating authority - petition disposed off.
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2020 (2) TMI 1156
Maintainability of petition - alternative remedy of appeal u/s 107 of the Karnataka Goods and Services Act, 2017 - HELD THAT:- Petitioners submits that an appeal is provided under Section 107 of the Karnataka Goods and Services Act, 2017 and they would avail the same provided some interim protection is afforded by this Court, lest otherwise the purpose of filing of the appeal should be defeated. There is force in this submission apart from fairness.
These writ petitions are disposed off reserving liberty to the petitioners to file a statutory appeal within a period of four weeks keeping open all contentions of the parties.
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2020 (2) TMI 1109
Seizure of goods - release of seized goods - evasion of GST - petitioner has one declared godown and three undeclared godowns and stocks were also found at the undeclared godowns during seizure - not maintaining the Account Book / Stock Register - HELD THAT:- The facts, as revealed in the counter affidavit, clearly reflect upon the conduct of the writ petitioner post seizure of its goods. Till date, no TRAN-1 has been submitted by the writ petitioner. The enquiry preceding seizure has revealed that the petitioner has one declared godown and three undeclared godowns and stocks were also found at the undeclared godowns during seizure. As such, proceedings have been initiated under section 67 (2) of the Uttar Pradesh Goods and Services Tax Act, 2017, read with Rule 139 (1) of the Uttar Pradesh Goods and Services Tax Rules, 2017.
It is noticed that consequent upon proceedings initiated by the concerned respondent authority, the writ petitioner never deposited any tax or penalty or bond or security, as required under section 67 (6) of the Uttar Pradesh Goods and Services Tax Act, 2017. Notices / summonses have been issued but no one appeared on behalf of the writ petitioner on the date fixed - So far as the rejoinder affidavit is concerned, the stand of the writ petitioner, as contained therein, is evasive and vague.
Petition dismissed.
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2020 (2) TMI 1108
Confiscation of goods alongwith vehicle - levy of penalty u/s 130 of CGST Act - principles of natural justice - HELD THAT:- The writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on date, are at the stage of show cause notice, under Section 130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law.
It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of SYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT].
It is now for the applicant to make good his case that the show cause notice, issued in GST-MOV-10, deserves to be discharge - application disposed off.
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2020 (2) TMI 1107
Freezing of petitioner's bank account - HELD THAT:- List on 21.04.2020 - In the meantime, Mr. Jasmeet Singh Juneja, Director of the petitioner company is directed to appear before the Senior Intelligence Officer at DGGI Headquarters on 20.02.2020 i.e. Thursday at 11:00 A.M. to record his statement. We direct him to cooperate with the respondents in every way while recording the statement. Since he has expressed apprehension of him being ill-treated by the respondents, which is vehemently denied by the respondents, we permit the counsel of the petitioner to remain present during the interrogation of Mr. Juneja.
The respondent shall supply the order of freezing of bank account of the petitioner to Mr. Juneja, when he appears before the respondents on 20.02.2020 i.e. Thursday at 11:00 A.M.
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2020 (2) TMI 1106
Provisional release of bank accounts - Section 83 of the CGST Act - time limitation for filing objections - HELD THAT:- The period of 7 days prescribed in Rule 159(5) is a directory and not a mandatory period. Therefore, on account of delay on the part of the objector, if he prefers his objections beyond the period of 7 days, the objections cannot be rejected on the ground of limitation. No consequence is prescribed either in the Act or in the Rules to say that if the objections are not preferred within 7 days, they shall not be entertained.
The decision in Sambhaji (2008 (11) TMI 393 - SUPREME COURT) is clearly attracted to the present case. Moreover, it is the objector who would suffer adverse consequence on account of delay on his part in raising the objections. The respondents do not suffer any adverse consequence on account of delay, if any, in moving the objections, thus, the period of 7 days prescribed in Rule 159(5) of the CGST Rules for moving the objections to the provisional attachment is merely directory and not mandatory. Objections raised by the petitioner, therefore, could not be rejected on that ground alone.
The proceedings are remanded back to the concerned authority for passing a fresh order on the merits of the objections - petition allowed by way of remand.
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2020 (2) TMI 1105
Permission to submit TRAN-1 form electronically by opening electronic portal - input tax credit under Rule 117 of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- The petitioner is a trader as defined under the provisions of the GST Act. Under Section 140(3) of the GST Act, the petitioner was entitled for availing input tax credit. That, for the purpose of availing the input tax credit, the petitioner was required to complete the formalities as envisaged under Rule 117 of the CGST Rules. Under the original rules, TRAN-1 was required to be filled by 31.09.2017. The said period was further extended till 31.11.2017 and again extended up till 27.12.2017 - There is no proof adduced by the petitioner of his having attempted to fill TRAN-1 during the said extended period up till 27.12.2017. As is discussed in the earlier paragraph, the Govt. of India itself vide their circular dated 03.04.2018 permitted filling up of TRAN-1 by the 31.04.2018, the said extended period of 31.04.2018 was however for only those who have in the past attempted but failed to fill up TRAN-1. There is no evidence made available by the petitioner of having tried to fill up TRAN-1, but was unsuccessful for availing the facilities so provided under circular dated 03.04.2018. What is also surprising is that the petitioner also has not mentioned anything in respect of having approached any of the competent authorities in the department raising his concern about his inability in filling up of TRAN-1.
The relief sought for by the petitioner cannot be extended to those cases where the assessee defaults in not filling up of TRAN-1 even within the extended period up till 27.12.2017. The petitioner also failed to establish of having approached any of the officers in the department, nor is there any proof in his possession. There is also no document to show any correspondence made with any of the officers in the department in this regard. The writ benefit cannot be extended to such indolent persons who sleeps over their rights and duties without any plausible explanation and justification and now at the belated stage woke up from slumber and is trying to get a relief from the High Court without any bonafide ground - the petitioner had infact never tried to fill TRAN-1 within the stipulated period or within the extended period and also was not able to take advantage of circular dated 03.04.2018 if at all if he had bonafidely tried to fill TRAN-1.
This court is of the opinion that no strong case is made out by the petitioner for issuance of any sort of writ to the respondents - Petition rejected.
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2020 (2) TMI 1104
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2020 (2) TMI 1103
Detention of goods - proceedings initiated based on the report obtained by respondent No.3 from CAMPCO Limited. Petitioners claim to be the owners and consignors of the goods detained by respondent No.3 - HELD THAT:- The records indicate that much earlier to the publication of the auction, learned Additional Government Advocate had entered appearance on behalf of respondents and the notice of auction was not brought to the notice of the Court, even though the respondents participated in the proceedings. That apart, there is nothing on record to show that an opportunity was given to the petitioners to get the seized goods released in terms of Section 129 (1) (a) of the Act. Respondents have also failed to comply with Section 130 (7) of the Act. In view of the said provisions, the concerned officer was required to give reasonable time not exceeding three months to pay fine in lieu of confiscation before disposal of the goods or conveyance as stipulated therein.
The only order that could be passed is to permit the petitioners to pay the applicable tax and penalty equal to one hundred percent of the tax payable on such goods as per Section 129 of the Act and on such payment, sale proceeds of ₹ 75,33,620/- shall be returned to the petitioners - Petition disposed off.
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2020 (2) TMI 1050
Vires of Rule 117 of CGST Rules 2017 and HGST Rules 2017 - time limitation - portal for the petitioners to upload the form TRAN-01 - HELD THAT:- Today, Mr. Nimba Ram, Joint Commissioner, GST Policy Wing, CBIC and Mr. Anish Gupta, Officer on Special Duty- Legal, CBIC, Department of Revenue have appeared in the Court and informed that decision in this regard can only be taken on the recommendation of GST Council and government is, otherwise, powerless to take any decision.
Benefit of decision in the case of ADFERT TECHNOLOGIES PVT. LTD. VERSUS UNION OF INDIA AND ORS. [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] provided, where it was held that The Respondents are directed to permit the Petitioners to file or revise where already filed incorrect TRAN-1 either electronically or manually statutory Form(s) TRAN-1 on or before 30th November 2019.
The writ petitions are disposed of with the permission to the petitioners to file TRAN-0I Return, either electronically or manually, by 31.01.2020.
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2020 (2) TMI 1049
Release of vehicle - the vehicle carrying goods were found to be carried in violation of GST provisions - case of respondent is that in absence of the payment, the vehicle could not be released - HELD THAT:- It is a case where a vehicle alongwith goods were seized when it was found carrying goods in violation of the Act of 2017. The petitioner alongwith owner of the goods was served with the notice before seizure of the goods. The petitioner is the owner of the vehicle but he failed to prove that he had no knowledge about the goods carried in the vehicle so as to discharge his burden as otherwise envisaged under the Act of 2017 - In absence of discharge of burden by the owner of the vehicle, an order for release of vehicle could not be passed - there are no illegality in the order.
Liberty is given to the petitioner to again approach the authority with defence, as available to prove his innocence - Petition disposed off.
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2020 (2) TMI 1048
Maintainability of petition - alternative remedy of appeal - Detention of gods - Section 130 of the Uttar Pradesh Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner is having remedy of appeal under Section 107 of the Act of 2017 but without availing it, this writ petition has been filed. It is more so when questions of facts are involved which cannot be addressed by this Court while exercising jurisdiction under Article 226 of the Constitution of India.
The writ petition is dismissed, however with a liberty to the petitioner to avail the remedy of appeal provided under Section 107 of the Act of 2017.
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2020 (2) TMI 1047
Opening of portal for filing of TRAN-1 Form - transitional credit - HELD THAT:- The Writ Petition is disposed of in terms thereof directing the respondents to either open the portal to enable the petitioner to again file the Form GST TRAN-1 electronically or in the alternative, accept the Form GST TRAN-1 presented manually, on or before 31.12.2019.
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2020 (2) TMI 1046
Determination of rate of tax on dry coconut (copra) - Maintainability of writ petition - appeal provided under the Integrated Good Service Tax Act read with Section 107 of the Central Goods Service Tax Act, 2017 - HELD THAT:- The petitioner failed to show as to how the order impugned is without jurisdiction, so as to call for interference in extraordinary writ jurisdiction of this Court.
In view of the fact that efficacious remedy, by way of appeal, has been provided and in view of the fact that determination of rate of tax on dry coconut (copra), impugned in the present writ petition, depends upon numerous disputed questions of facts, this Court is not inclined to interfere under Article 227 of the Constitution of India.
Petition dismissed.
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2020 (2) TMI 998
Grant of Regular Bail - wrongful availment of input tax credit which is also passed on -offence punishable u/s 132(1)(b) of CGST Act - HELD THAT:- The applicant is in jail since 23.12.2019 - However, for the alleged transaction, it is always open for the respondent department to take departmental action for recovery of penalty against the applicant.
The applicant, under the instructions, submitted that without prejudice to his rights and contentions, applicant is ready and willing to deposit ₹ 25 lakh before the respondent No.2 within a period of 8 weeks from the date of his actual release.
Considering the case, the present application is allowed - The applicant is ordered to be released on regular bail, subject to conditions.
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2020 (2) TMI 959
Release of seized documents after retaining the photocopy - Levy of GST - service of man power and security guards to Government/semi Government Institutions - payment of wages withheld - HELD THAT:- Taking note of the facts and circumstances of this case as disclosed in the pleadings and materials on record, it is ordered that the 3rd respondent will take up the plea made by the petitioner in Ext.P4 and after affording reasonable opportunity of being heard, may take a considered decision on the request made therein for releasing the documents mentioned therein without much delay, preferably within a period of 3 weeks from the date of production of a certified copy of this judgment.
Petition disposed off.
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2020 (2) TMI 958
Inclusion of corrected details in the EDI system to enable the petitioner to get its refund - refund of IGST with interest - it is submitted that, since the party (the petitioner herein) has later filed amendments in the GST returns with IGST amounts, the refunds can be processed through an officer interface option, which is already availed in ICES and that the reference has also been made to the board’s circular to the Central Board of Indirect Taxes and Customs, Circular No.08/2018-Customs
HELD THAT:- Necessary action to sanction IGFT refunds in the instant case could be undertaken by the officers concerned through the office interface as detailed in the procedures provided by the Directorate General of Systems and Data Management.
It is ordered the competent authority among the respondents 2 to 5 will take necessary steps to process the claim of the petitioner for refund in the light instruction / letter dated 08.01.2020.
Petition disposed off.
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