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GST - Case Laws
Showing 1 to 20 of 154 Records
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2020 (7) TMI 809
Maintainability of Advance Ruling application - Classification of goods - Flavoured Milk - What is the appropriate chapter under the customs Tariff Act, 1975 (51 of 1975) under which the product Flavoured Milk can be classified as per the explanation (iv) of the Notification No. 1/2017-Central Tax (Rate) dated 28th June 2017? - HELD THAT:- The Directorate General of GST Intelligence, Visakhapatnam Zonal Unit had informed that an investigation had already been initiated against the same issue through summons dated 07-11-2019 for mis-classification of flavoured milk under HSN 0403 instead of HSN 2202 in his letter numbered F.No. DGGI/VZU/INV/GST/104/2019 dated 24-02-2020 requesting for rejection of the applicant's plea for admission for advance ruling in terms of provisions of sub-section (2)of section 98 of CGST Act, 2017.
This authority after examining the relevant proviso to sec 98(2), makes the observation that it is a fit case for rejection as the applicant approached the Authority for Advance Ruling for clarification while the case is still pending with the Revenue on the same issue i.e., with respect to the classification of the product under question.
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2020 (7) TMI 807
Seeking grant of regular bail - forged documents to create the profile of a non-existent Company and claimed GST refund - HELD THAT:- Undoubtedly, the petitioner has committed serious offence, however, it cannot be lost sight of the fact that he has been in custody since 15.06.2019 and the trial is not likely to be concluded at an early date. The petitioner is undergoing magisterial trial, thus, it is deemed it appropriate to grant regular bail to the petitioner.
The petition is allowed and the petitioner is directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned.
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2020 (7) TMI 805
Exemption from GST - entity registered under section 12-AA of Income Tax Act, 1961 - services provided by CREDA, scrap battery sale and sale of tender forms - applicability of GST Notification No. 12/2017-Central Tax (Rate) dated 28-06-2017 - HELD THAT:- Section 12A (a) read with Section 12AA (1) (b) does not confirm any right of exemption upon the appellant under Section 11, 12 and 13 of the Income Tax, 1961. Such exemption from taxation will be available only after the Assessing Officer is satisfied about the genuineness of the activities promised or claimed to be carried on in each financial year relevant to the assessment year and at the provision of law acted upon - The exemption under Section 12A / 12AA of the Income Tax Act, 1961 does not cover all incomes or activities of the appellant. The exemption under said provisions are admissible based on the nature of activity and source of such incomes. Hence, exemption under CGST Act, 2017 on income is admissible only if the same is towards any charitable activity.
In the instant case, CREDA implements various schemes relating to solar energy, wind energy, mini micro hydel, biomass, biogas and solid waste management. Some of the major activities include sour sujla yojna, solar drinking water pumping scheme, saubhagya yojna, solar community irrigation scheme, solar high mast, saur shakti yojna, solar on grid and roof top scheme, solar cold storage scheme, solar highmast, solar water purification, solar electrification of Government Buildings, solar water heating systems, National biogas and manure management programme, solar rural electrication/majaratola scheme, energy conservation programme, energy education park etc. The above schemes are funded by the grants received from the Central Government and State Government. CREDA creates empanelment of systems integrators, vendors and contractors to work as channel partner for implementing various solar photovoltaic/solar thermal applications in market mode in the state. The system integrator shall be the agency for integration and installation of Solar PV/Solar Thermal Systems - The contactors means civil and electrical contractors to be engaged for carrying out various small construction and repair civil works and works of laying of power distribution network at various sites as per requirement of CREDA.
For the schemes funded by the grants received from the Central Government and State Government CREDA, the appellant creates empanelment of systems integrators, vendors and contractors to work as channel partner for implementing various solar photovoltaic/solar thermal applications in market mode in the state of C.G and further the aforesaid activities are being undertaken by the integrators, vendors, contractors. Further for implementation of these schemes, the appellant receives consideration for the allied services rendered by them from their clients / channel partners, in the form of Registration Fees, Supervision / Service Charges, Processing Fees, RVE CONNECTION Charges, Processing Fees (Sour-Sujila), Entry Fees to Energy Park, Penalty Charges Received and RE issuance Charges. This apart they also receive consideration for activities such as Scrap battery sale and from sale of tender forms. Thus the said activities of CREDA the appellant, per se cannot be merely or primarily for the preservation of environment so as to qualify being considered under clause (r) of para 2 of the said Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017.
The aforesaid activities of the appellant cannot he treated as charitable activities as envisaged under the statute, as the above mentioned fees/ charges are being collected from the channel partners/ contractors/consumers as a consideration for tender work/supply of services, provided to them - the said supplies being not covered under the definition of charitable activities as envisaged, the impugned services / supply of goods rendered by the appellant are not covered under Sr.no. I of Notification No. 12/2017 - Central Tax (Rate) dated 28.06.2017
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2020 (7) TMI 804
Maintainability of appeal - HELD THAT:- While admitting the Writ Appeal., the court ordered that there shall be an order of ad-interim stay till 03.08.2020. Notice.
Call on 03.08.2020.
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2020 (7) TMI 803
Input Tax Credit - GST paid on goods and services used as inputs in execution of "Works Contracts" - execution of Road work contracts to Government Engineering Departments - on which type of goods/ services the ITC is not eligible? - blocked credit under Section 17 (5) (c) or Section17(5)(d) of the CGST Act, 2017 - HELD THAT:- As described in the agreement copy submitted by the applicant, it is evident that the applicant is engaged in the activity of construction (reconstruction) of roads for the Engineering Department, GoAP in which the following predominant goods and services are incorporated in execution of the works - it is evident that the nature of activity undertaken by the applicant is a composite supply involving both goods and services used for construction /reconstruction of roads, which is an immovable property and therefore satisfies the definition of "Works Contract Service" as defined under Section 2 (119) of the CGST Act, 2017.
The service of Works Contract Service (WCS) provided for the construction of a "road" is liable to GST © 12% (6°/o CGST + 6°/o SGST) as per SI. No. 3 (iv) (a) of Notification No.11/2017-CT(Rate) dated 28-6-2017 as amended. There is no restriction on availment of ITC in the said Notification.
Eligibility of the applicant to claim input tax credit in respect of the supply of Works Contract Service - HELD THAT:- It is evident that the inputs and input services of the applicant arc used in the course or furtherance of business i.e., works contract business and the said works contract service is a taxable service under GST and liable to tax at the rate of 12%. At this juncture it is made clear that compliance with the provisions of Section 16 (2) is a matter of fact and procedure and the applicant is to comply with the same to be finally eligible for ITC. This procedural compliance is not being challenged here and hence not commented upon by this Authority. Having said that, it is noted that the applicant is a Registered Taxpayer under the GST law, he is engaged in the provision of a taxable service (works contract service) in the course of business. As such, the applicant satisfies the basic requirements of Section 16 and is entitled to Input Tax credit (ITC) in general, of course subject to the compliance with the other procedural requirements mentioned.
Whether the ITC sought to be availed by the applicant is "Blocked" under Section 17 (5) (c) or Section17(5)(d) of the CGST Act, 2017? - HELD THAT:- It is clearly evident that what is blocked Under Section 17 (5) (c) is the ITC of tax paid on the Works Contract service when sought to be availed by the Principal (i.e., Engineering Departments). This is not the case in this appeal. The applicant in this appeal seeks a ruling on whether he can avail credit on goods and services used to provide Works Contract Service to the Principal - there is no bar under Section 17 (5) (C) to prevent the applicant from availing ITC on goods and services used in supplying Works Contract Service.
The applicant, a registered person under the GST law, engaged in the business of Works Contract Service, liable to GST at the rate of 12% vide Notification No.11/2017-CT(Rate) dated 28-6-2017 as amended, and where no restriction on availment of ITC is prescribed therein, is also not affected by the restriction under Section 17 (5) (C) and Section 17 (5) (d) of the CGST Act, 2017 and is therefore entitled to credit on the inputs i.e, goods and services used for providing the output service of Works contract service for construction of roads for the State Government Departments - the original order of the AAR is upheld.
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2020 (7) TMI 801
Levy of GST - hire charges of storage of agriculture produces - storage of exempted goods under the GST Act - Whether the tax is applicable on the same rate or different rates - HELD THAT:- On perusal of legal provisions, it is found that loading, unloading, packing, storage or warehousing of agricultural produce is exempted from GST. It is also found that Agricultural produce in the notifications has been defined to mean "any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market" - further, in terms of circular dated 15.11.2017, the storage/warehousing of goods viz pulses, jaggery, etc were taxable but with the introduction of entry 24B in the Exemption Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), storage/warehousing of pulses, jiggery, fruits, nuts & vegetables are exempted from GST w.e.f 01.10.2019.
The applicant is engaged in rendering services by way of providing storage/warehousing facilities to variety of goods and in terms of legal provisions, the rate of GST for storage/warehouse of goods is 18% - the rate of tax is same for all goods stored.
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2020 (7) TMI 800
Classification of services - rate of tax to be levied by the sub-contractor to main contractor for original work contract pertaining to Government entity - applicability of N/N. 11/2017-Central Tax (Rate) dated 28.06.2017 - HELD THAT:- On perusal of the notification, it is found that the work contract services in respect of construction/ widening of road provided by the applicant to his main contractor is covered under entry at Serial No. 3(iv) of the said notification. It is also found that before amendment vide notification dated 25.01.2018, specific entry on rate of services provided by the sub-contractor to main contractor were introduced, the activity of the applicant was remain covered under the scope of Serial No. 3(iv) of the Notification No. 11/2017 (as amended), which provided the rate of GST @ 12% on the services supplied by way of construction of road.
Thus, the services provided by the applicant as sub-contractor to principal contractors continues to be covered under the Serial No. 3(iv) of the Notification No. 11/2017-Central Tax (Rate) dated (as amended from time to time).
Further Appellate Authority for Advance Ruling, Maharashtra in the case of IN RE: M/S. SHREE CONSTRUCTION [2019 (3) TMI 1567 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA] and and Authority for Advance Rulings, Punjab in the case of IN RE : S.P. SINGLA CONSTRUCTIONS PVT. LTD. [2019 (10) TMI 315 - AUTHORITY FOR ADVANCE RULING - PUNJAB] on the same issue has passed the ruling that services provided by the sub-contractor to main contractor is covered tinder Serial No. 3(iv) of the Notification No. 11/2017 -Central Tax (Rate) dated 28.06.2017 (as amended from time to time) and attracts GST @ 12%.
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2020 (7) TMI 793
Levy of GST - freight in the case of indigenous supplies - reverse charge mechanism - inclusion of ocean freight in the case of imports on the CIF value - Double taxation - revenue neutrality - Section 9(3) of the CGST Act, 2017 - HELD THAT:- The applicant is a limited company incorporated under the Companies Act and engaged in the manufacturing and supply of the paper. Hence, the Notification No. 13/2017-CT (Rate) dated 28.06.2017 (as amended) is squarely applicable on them and they are liable to pay the GST on the freight paid, under the reverse charge mechanism.
Revenue neutrality - HELD THAT:- Having no additional financial impact on the applicant. It is observed that as per the mandate provide to the Advance Ruling Authority, under Section 97 of the CGST Act, 2017, the Authority has to decide specific issues, as specified under Section 97(2) of the CGST Act, 2017, on the basis of existing Law/Rules/Notifications/Circulars. The Authority cannot venture outside its purview and give rulings on the issue which are not under its mandate - the matter of double taxation is outside the purview of the Authority.
When the GST has been paid on the ocean freight in the case of imports on the CIF value and the value of the ocean freight is included in the value of the imported goods, whether any further GST liability is there under RCM? - HELD THAT:- The services supplied by the foreign shipping entity of transportation of goods in a vessel to a port in India is an 'inter-state supply' in terms of section 7 of the IGST Act, 2017. Hence, IGST is leviable on the same under Section 5 of the IGST Act. As per the charging section i.e. Section 5, IGST has to be paid by the taxable person - in terms of the Notification No. 10/2017- Integrated Tax (Rate) dated 28.06.2017 (as amended), in the case of import of goods on CIF basis, the applicant is liable to pay GST on the component of Ocean freight paid by the foreign supplier to the shipping company.
In term of Notification No. 13/2017-Central Tax (Rate) dated 28.06.2017 (as amended) the applicant is liable to pay GST under reverse charge mechanism, on the freight paid - The applicant is liable to pay IGST on transportation of goods by vessels under Reverse Charge Mechanism (RCM) under Notification No. 10/2017-Integrated Tax (Rate) dated 28.06.2017, as amended.
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2020 (7) TMI 746
Maintainability of petition - statutory remedy to file an appeal before the appellate authority available - Validity of assessment order - petitioner submits that the petitioner instead of filing an appeal, has approached this Court and as such, some delay has occurred - HELD THAT:- Once a statute provides for effective remedy, the High Court must refrain from exercising jurisdiction under Article 226 of the Constitution of India. In that view of the matter, there is no reason to examine correctness of the assessment order by this Court.
The Writ Petition stands disposed of granting liberty to the petitioner to approach the appellate authority by filing an appeal. If such appeal is filed in accordance with law within ten (10) days, the appellate authority may examine the same and pass appropriate order. As an interim measure, to enable the petitioner to file an appeal, the respondents are restrained from taking any coercive step against the petitioner for a period of two weeks - Petition closed.
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2020 (7) TMI 737
Recovery of arrears of GST due - assessment year 2018-2019 (November 2018 to March 2019) - HELD THAT:- The petitioner, who is an assessee under the GST Act, is not disputing his liability to tax, or the quantum thereof, for the period in question. It only seeks an instalment facility to pay the admitted tax, together with interest thereon, in view of the financial difficulties faced by it during the Covid pandemic situation, when its business has come to a total standstill.
During the pendency of this Writ Petition, the petitioner has established its bonafides by effecting a payment of ₹ 4 lakhs towards the tax liability for the period 2018-2019. It is also relevant to note that, as of today, there is no demand against the petitioner for the unpaid tax amount. Under the circumstances, since the petitioner is not disputing his liability, and wishes to put a quietus to the matter, it is deemed appropriate to direct the respondent to accept the belated return filed by the petitioner for the period November 2018 to March 2019, without insisting on payment of the admitted tax declared therein - The respondents shall adjust the amount of ₹ 4 Lakhs paid by the petitioner during the pendency of this writ petition, towards the admitted tax liability, and thereafter permit him to discharge the balance tax liability, inclusive of any interest and late fee thereon, in equal successive monthly instalments commencing from 25th August 2020 and culminating on 25th March, 2021.
Petition disposed off.
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2020 (7) TMI 735
Maintainability of application - appropriate forum - High Court or Supreme Court - Issue involving determination of rate of Service Tax.
HELD THAT:- Connect with Tax Appeal No.2332 of 2010 - Let both the appeals be listed on 20.07.2020.
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2020 (7) TMI 726
Refund of ITC in case of inverted duty structure - Not allowing refund of unutilized input tax credit relatable to input services - Validity of amended Rule 89(5) of the CGST Rule, 2017 - Circular no.79/53/2018-GST dated 31.12.2018 - HELD THAT:- Rule 89(5) and more particularly explanation (a) thereof, provides that Net Input Tax Credit shall mean “input tax credit” availed on “inputs” during the relevant period other than the “input tax credit” availed for which refund is claimed under sub-rule (4A) or (4B) or both. Therefore, the grievance of the petitioner is that only the “inputs” is referred to in explanation (a) to sub-rule 5 of Rule 89 of CGST Rules 2017 and therefore, “input tax credit” on “input services” are not eligible for calculation of the amount of refund by applying Rule 89(5). Thus, it results into violation of provision of sub-section 3 of Section 54 of the CGST Act, 2017, which entitles any registered person to claim refund of “any” unutilised input tax credit. Sub-clause (ii) of the proviso to sub-section 3 of Section 54 negates the claim of refund of unutilized input tax credit other than where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies, except supplies of goods or services or both as may be notified by the Government on the recommendations of the GST Council.
The provision of section 7 provides that “scope of supply” includes all forms of supply of goods or services. Therefore, for the purpose of calculation of refund of accumulated “input tax credit” of “input services” and “capital goods” arising on account of inverted duty structure is not included into “inputs” which is explained by the Circular No. 79/53/2018-GST dated 31.12.2018, wherein it is stated that the intent of law is not to allow refund of tax paid on “input services” as part of unutilised “input tax credit”. Therefore, it is required to consider whether the refund of unutilised input tax credit arising due to inverted duty structure can be denied or not.
Section 66 levies service tax at a particular rate on the value of taxable services. Section 67 (1) makes the provisions of the section subject to the provisions of Chapter V, which includes Section 66. This is a clear mandate that the value of taxable services for charging service tax has to be in consonance with Section 66 which levies a tax only on the taxable service and nothing else. There is thus in built mechanism to ensure that only the taxable service shall be evaluated under the provisions of 67 - Rule 5 (1) of the Rules runs counter and is repugnant to Sections 66 and 67 of the Act and to that extent it is ultra vires. It purports to tax not what is due from the service provider under the charging Section, but it seeks to extract something more from him by including in the valuation of the taxable service the other expenditure and costs which are incurred by the service provider “in the course of providing taxable service”. What is brought to charge under the relevant Sections is only the consideration for the taxable service. By including the expenditure and costs, Rule 5(1) goes far beyond the charging provisions and cannot be upheld.
By prescribing the formula in Sub-rule 5 of Rule 89 of the CGGST Rules,2017 to exclude refund of tax paid on “input service” as part of the refund of unutilised input tax credit is contrary to the provisions of Sub-section 3 of Section 54 of the CGST Act,2017 which provides for claim of refund of “any unutilised input tax credit” - as per provision of sub-section 3 of Section 54 of the CGST Act,2017, the legislature has provided that registered person may claim refund of “any unutilised input tax”, therefore, by way of Rule 89(5)of the CGST Rules,2017, such claim of the refund cannot be restricted only to “input” excluding the “input services” from the purview of “Input tax credit”. Moreover, clause (ii) of proviso to Sub-section 3 of Section 54 also refers to both supply of goods or services and not only supply of goods as per amended Rule 89(5) of the CGST, Rules 2017.
In view of the above analysis of the provisions of the Act and Rules keeping in mind scheme and object of the CGST Act, the intent of the Government by framing the Rule restricting the statutory provision cannot be the intent of law as interpreted in the Circular No.79/53/2018GST dated 31.12.2018 to deny the registered person refund of tax paid on “input services’ as part of refund of unutilised input tax credit.
Explanation (a) to Rule 89(5) which denies the refund of “unutilised input tax” paid on “input services” as part of “input tax credit” accumulated on account of inverted duty structure is ultra vires the provision of Section 54(3) of the CGST Act, 2017.
Explanation (a) to the Rule 89(5) is read down to the extent that Explanation (a) which defines “Net Input Tax Credit’ means “input tax credit” only. The said explanation (a) of Rule 89(5) of the CGST Rules is held to be contrary to the provisions of Section 54(3) of the CGST Act. In fact the Net ITC should mean “input tax credit” availed on “inputs” and “input services” as defined under the Act - respondents are therefore, directed to allow the claim of the refund made by the petitioners considering the unutilised input tax credit of “input services” as part of the “net input tax credit” (Net ITC) for the purpose of calculation of the refund of the claim as per Rule 89(5) of the CGST Rules,2017 for claiming refund under Sub-section 3 of Section 54 CGST Act,2017.
Petition allowed.
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2020 (7) TMI 696
Constitutional validity and legality of Section 17(5)(c) and Section 17(5)(d) of the Central Goods and Services Tax Act, 2017 and the Delhi Goods and Services Tax Act, 2017 and the Circular No.28 dated 01st January, 2018 - denial of Input Tax Credit - Works Contract - HELD THAT:- Issue Notice.
List on 15th September, 2020.
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2020 (7) TMI 695
Power to conduct search - reason to believe to conduct search, present or not - section 69 of GST Act - HELD THAT:- The assurance given by the learned counsel for the Revenue that no further recovery shall be effected till the demand is raised in accordance with law and that the matter is being kept for 05.08.2020 for further hearing, we direct that no coercive action shall be taken against the petitioner. The respondents shall remain bound by their statement made today till then.
However, it is clarified that the grant of interim protection regarding coercive steps shall not debar the respondents from carrying on the investigation till the next date of hearing.
List on 05.08.2020.
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2020 (7) TMI 670
Profiteering - Jurisdiction - time limitation - principles of natural justice - commensurate reduction in GST prices to its recipients, by grammage increase - HELD THAT:- Petitioner is directed to deposit the principal profiteered sum of ₹ 2,33,456/- within two weeks. Upon deposit of the said amount, interest amount as well as the penalty proceedings initiated by the respondents shall stand stayed till further orders.
List the matter on 24th August, 2020 along with other connected matters.
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2020 (7) TMI 669
Maintainability of appeal - alternative remedy of appeal - Release of seized goods along with conveyance - Confiscation - appealable order or not - section 130 of CGST Act - HELD THAT:- As a final order of confiscation has been passed and the same being an appealable order, we relegate the writ applicant to file a statutory appeal as provided under Section 107 of the Act. Along with the appeal, it shall be open for the writ applicant to prefer a Miscellaneous Application under section 67(6) of the Act 2017 for provisional release of the vehicle pending the final disposal of the appeal.
If any such application under section 67(6) of the Act is filed by the writ applicant, then the authority concerned shall look into the same at the earliest and pass an appropriate order in accordance with law - application disposed off.
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2020 (7) TMI 650
Attachment of Bank Account of petitioner - Jurisdiction to issue the order - violation of principles of natural justice - HELD THAT:- The learned counsel for petitioner had stated that the petitioner was willing to offer a bank guarantee to the respondent No.3 of a nationalised bank of the amount in dispute claimed to be fraudulent availment of ITC i.e. ₹ 60,08,750/- in terms of communication dated 10.06.2020 issued by the Respodent, placed on record as annexure P5 to the petition.
Direction issued to provisionally release/ lift the debit freeze instructions subject to conditions and bank guarantee.
List on 10th September, 2020.
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2020 (7) TMI 635
Detention of goods along with the vehicle - invoices did not bear continuous numbers - power to detain a vehicle in the course of transit - section 129 of CGST Act - HELD THAT:- In the instant case, it is not in dispute that e-way bills did accompany the goods. It is also not in dispute that the transportation was covered by tax invoices. The objection of the respondents is only that the invoices did not bear continuous numbers and hence they suspect that the invoices bearing serial numbers that fell between the numbers on the invoices produced at the time of transportation, could have been used for transportation of other goods that had not been brought to the notice of the Department.
The entertainment of such a doubt by the authority cannot be a justification for detaining the goods in question, especially when they were admittedly accompanied by tax invoices as also e-way bills that clearly indicated the particulars that were required by Rule 46 of the GST Rules - The detention in the instant case cannot be justified under Section 129 of the GST Act.
The respondents are directed to forthwith release the goods detained by Ext.P4 notice - petition allowed.
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2020 (7) TMI 634
Freezing of petitioner's bank accounts - Section 159 (5) of the Central GST Rules, 2017 - HELD THAT:- The present petition is disposed of with the directions to the authority concerned to positively decide the same on or before 27.07.2020 by passing a speaking order.
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2020 (7) TMI 633
Revocation of cancellation order - cancellation of registration of petitioner - contention of the petitioner is that the orders of the Assessing Authority and of the First Appellate Court cannot be sustained now in view of the Central Goods and Services Act (Removal of Difficulties Order), 2020 issued under Section 172 of the Act - HELD THAT:- It was held in the Gazette Notification issued on 25.6.2020 about the time limits of filing application - Learned Standing Counsel did not dispute that the Gazette Notification.
The order dated 10.1.2020 passed by the Assessing Authority and the Appellate Order dated 13.2.2020 are set aside - The application dated 7.12.2019, which was filed by the petitioner for the revocation of the cancellation order dated 19.9.2019, shall now be decided in accordance with law within a period of 15 days from the date of production of a copy of this order.
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