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GST - Case Laws
Showing 201 to 218 of 218 Records
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2021 (1) TMI 218 - NATIONAL ANTI-PROFITEERING AUTHORITY
Rectification of mistake in SHRI JOTBIR SINGH BHALLA, DIRECTOR-GENERAL OF ANTI-PROFITEERING, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, VERSUS M/S. SUNCITY PROJECTS PVT. LTD., [2020 (12) TMI 888 - NATIONAL ANTI-PROFITEERING AUTHORITY] - HELD THAT:- In the above case, the 5th and 6th lines of the Para on page No. 26 instead of “deposited in the CWFs of the Central and the Haryana State Government as per the details given above” would be read as “passed on to all the eligible buyers.”
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2021 (1) TMI 217 - ALLAHABAD HIGH COURT
Grant of anticipatory bail - GST evasion - Fake firms - bogus invoices - Section 70 of the C.G.S.T. Act, 2017 r/w Section 174 of the C.G.S.T. Act, 2017 - HELD THAT:- Relying upon the judgement of the Punjab and Haryana High Court, in the case of AKHIL KRISHAN MAGGU AND ANR. VERSUS DEPUTY DIRECTOR, DIRECTORATE GENERAL OF GST INTELLIGENCE AND ORS. [2019 (11) TMI 942 - PUNJAB AND HARYANA HIGH COURT], this Court finds that the applicant has no prior criminal antecedents brought on record. His implication can be made under cognizable and non-bailable offences u/s 132 (5) of the C.G.S.T. Act, if the allegations are found to be correct. The applicant has not given any statement in inquiry till date due to fear of arrest. The personal liberty guaranteed under Article 21 of the Constitution of India is a fundamental right and in every case, arrest is not necessary. Under Section 438 Cr.P.C., where the implication of a person is for a non-bailable offence, he can apply for anticipatory bail - If the applicant cooperates with the inquiry, there is no requirement of his arrest. The applicant is having his own address of residence and business. He can give surety ensuring his appearance. He does not appears to be habitual offender, prosecuted or convicted earlier.
The applicant shall be enlarged on anticipatory bail for a period of six weeks or till the inquiry is concluded by the Proper Officer under Section 70 (1) of the C.G.S.T. Act, whichever is earlier, on execution of a personal bond of ₹ 5,00,000/- and two sureties of the like amount before the Proper Officer - application allowed.
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2021 (1) TMI 216 - KARNATAKA HIGH COURT
Detention of conveyance and seizure of Goods - proceedings under section 129(3) of Act started and then notice under 130 (4) of the Act issued - subsequent forming of opinion - controversy in the present case is that, after the goods are seized in transit with the conveyance being detained, the respondent, on the basis of the information collected and available, has formed an opinion that there is an effort to evade payment of tax.
Whether there cannot be independent or simultaneous confiscation proceedings under Section 130 of the Act with the detention and seizure proceedings under the provisions of Section 129 of the Act, in the case of contravention of the provisions of the Act/Rules when the goods are being transported, or goods are stored in transit?
HELD THAT:- The respondent, who had issued notice under sub-clause (4) of Section 129 of the Act (Show Cause Notice dated 25.08.2020), has issued subsequent notice under sub-clause (4) of Section 130 of the Act (the impugned Show Cause Notice dated 07.09.2020) observing that the earlier notice has abated and calling upon the petitioner to show cause against confiscation and why the tax, penalty and other charges payable in respect of such goods and the conveyance should not be paid by the petitioner. The chief contention is that there cannot be independent or simultaneous confiscation proceedings under Section 130 of the Act with the detention and seizure proceedings under way in accordance with the provisions of Section 129 of the Act in the case of contravention of the provisions of the Act/Rules when the goods are being transported, or goods are stored in transit.
It is settled that a decision is an authority for what it decides. The Hon’ble Supreme Court in ROYAL MEDICAL TRUST AND ANOTHER VERSUS UNION OF INDIA AND ANOTHER [2017 (9) TMI 1849 - SUPREME COURT] has held that every judgement must be read as applicable to the particular fact proved, or assumed to be proved, since the generality of the expressions which may be found are not intended to the expositions of the whole law, but are governed and qualified by the particular fact of the case inwhich such expressions are to be found - When the decision in Sree Enterprises is examined as against this touchstone, this Court must hold that the question which is presented for consideration in the present case did not come up for consideration before this Court in such case and therefore, this decision is not helpful to the petitioner.
If a person transports any goods, or store any goods while they are in transit in contravention of the provisions of the Act or the rules made thereunder consequences would have to follow to ensure there is substantial deterrent in continuing with such contravention. There cannot be any doubt, or quarrel, that the provisions of Section 129 of the Act are intended to achieve this object. The provisions of Section 130 of the Act deals with confiscation. Under Section 130 of the Act, proceedings for confiscation could be initiated if there is reason for the authorities to opine that there is contravention with the provisions of the Act/Rules in the supply or receipt of goods with the intention to evade tax Section 130(1)(i) and (iv) or there is inability to account for the goods Section 130(1)(ii) or goods liable to tax under the Act are supplied without having applied for registration Section130(1)(iv) or if conveyance is used as a means of transport for carriage of goods in contravention of the provisions of the Act Section 130(1)(v). The object of the provisions of Section 130 of the Act, when seen with the object of the provisions of section 129 of the Act, are wider i.e., it is to curb contraventions of the provisions of the Act/ Rules with a certain intent.
The consequences of the proceedings Section 129 and Section 130 are different though there is cross reference as regards the determination of applicable Tax and Penalty. If there has to be determination of penalty as contemplated under Section 129(1)(a) or 129(1)(b) of the Act and payment thereof along with applicable tax for closure of the proceedings under Section 129 of the Act. Even for the completion of the confiscation proceedings under Section 130 of the Act there has to be determination of such penalty and payment of applicable tax. Though, both the owner of the goods and owner of the conveyance, can avoid confiscation by paying different Fine as prescribed, this will be in addition to the liability to pay any tax, penalty and charges payable in respect of such goods/conveyance.
In SYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT], a Division bench of the Gujarat High Court, whileconsidering the question whether both Sections 129 and 130 of the Act are independent of each other or they could be used interchangeably at the discretion of the authorities, after a conspectus reference to the decisions by the Hon’ble Apex Court on different aspects given the specific features of these provisions such as both the provisions beginning with the non-obstante clauses, the cross reference in each of these provisions to the liability to pay the applicable tax, penalty and fine, the conditions attached for initiation of proceedings for confiscation under Section 130 of the Act, the need for restraint in the authorities to initiate proceedings for confiscation for every infraction and to initiate such proceedings only if it could from the circumstances of the case form an informed opinion.
Thus, this Court is of the considered view that the it cannot be held that the provisions of Section 130 of the Act could be invoked in cases of conveyance/ goods detained/ seized while in transit only if there is a failure to pay the amount of tax and penalty as provided under section 129 (6) of the Act. This Court, for the reasons discussed hereafter, would also hold that the failure to pay the amount of tax and penalty as contemplated under Section 129(6) of the Act would be just one of the circumstances in which proceedings under Section 130 of the Act could be initiated in cases of conveyance/ goods detained/ seized while in transit - If in the use of conveyance for transportation of goods or storing of goods in transit, the contravention of the provisions of the Act/Rules is established, there can be no doubt, with the provisions of Section 130(1)(v) of the Act, the consequence of confiscation would be visited. If the intention to evade payment of tax in transporting the goods by conveyance is established, would be it outside the purview of the provisions of Section 130(1)(iv) of the Act which stipulates that if any person contravenes any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax then there shall be confiscation (without limiting to the goods).
Thus, it can be concluded that If after interception of conveyance with goods in transit and detention of the conveyance and seizure of the Goods with issuance of notice under section 129(3) of the Act, and when there is information about the intent to evade payment of tax, it is not open to the proper officer to treat the notice under section 129(3) of Act as having abated or truncate such proceedings and initiate proceedings under 130 of the Act for confiscation with the issuance of notice thereunder. The proper officer, who has detained the conveyance and seized the goods, when he is able to form opinion that there is an attempt to evade payment of tax, will have to determine the applicable tax and penalty under Section 129 of the Act while simultaneously initiating proceedings for adjudging confiscation under Section 130 of the Act. If during the pendency of these proceedings, a request for provisional release as contemplated under sub-clause (3) of Section 129 of the Act, is submitted, the same will have to be considered in the light of the provisions of Section 129 read with sub-clause (6) of Section 67 of the Act. If after adjudging confiscation, the option to pay Fine in addition to the tax payable, penalty and other charges is not exercised despite opportunity under section 130(7) of the Act, the Proper officer will have to take and hold possession of the things confiscated subject to consequences as contemplated the re-under.
The writ petition is disposed of restoring the Show Cause Notice directing the respondent to decide, in accordance with law, on the proposed levy of tax, penalty and cess as proposed therein with reasonable opportunity of hearing to the petitioner, who shall have the liberty to seek provisional release of goods/conveyance as provided for under sub-clause (2) of Section 129 of the Act.
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2021 (1) TMI 215 - PATIALA HOUSE COURT
Grant of Bail - Fraudulent Input Tax Credit - allegation that applicant/accused knowingly participated in receipt of only paper invoices to the tune of ₹ 150 crores without any movement of goods and has fraudulently availed/passed input tax credit of approximately ₹ 7 crores to Government exchequer - HELD THAT:- The economic offences are required to be treated as a separate class and bail cannot be granted as a matter of routine - Applicant/accused is Masters in Business Administration. He is reported to be the sole proprietor of M/s Sri Siddhivinayak Ventures and reportedly raised taxable invoices to the tune of ₹ 150 crores without any movement of goods. During the course of investigation, it was revealed that input tax credit of approximately ₹ 7 crores has been fraudulently availed/passed by M/s Sri Siddhivinayak Ventures.
Considering the seriousness of allegations, enormity of charge and the fact that investigation is at crucial stage, the applicant/accused cannot be released on bail - bail application dismissed.
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2021 (1) TMI 175 - ANDHRA PRADESH HIGH COURT
Job Work - Consideration for Levy of GST - value of broken rice, bran and husk obtained by the petitioner on milling of the paddy of the respondent No. 4 - milling charges - compensation/exchange for the own rice supplied by the petitioner to the respondent No. 4 to make up the shortfall in the yield - by-products were left to the petitioner as compensation to replenish the shortfall of the rice to make 67% of yield on milling - According to Revenue, not only the milling charges @ ₹ 15/-per quintal but also the by-products received by the petitioner constitute the consideration, whereas, the contention of the petitioner is that by-products were just left by 4th respondent with the petitioner as they were not useful to it, for, their disposal was not economically viable.
HELD THAT:- It is pertinent to mention here that in similar circumstances, in the case of FOOD CORPORATION OF INDIA VERSUS STATE OF AP [1997 (4) TMI 483 - ANDHRA PRADESH HIGH COURT], a Division Bench of the High Court of Andhra Pradesh held that when the terms between the parties are under an agreement, those terms are sacrosanct and cannot be explained otherwise by adducing oral evidence. The facts in that case briefly are that the FCI entered into agreements with different millers to whom it supplied paddy for the purpose of milling and paid hire charges and milling charges. As per the milling agreement, the FCI agreed to give the by-products such as broken rice, husk and bran to the millers. The Assessing Authority added the value of the by-products to the turnover of the FCI for the purpose of computation of Sales Tax, treating such by-products to have been sold by the FCI to the millers. The contention of the FCI was that it just allowed the millers to treat the by-products as their property but there was no sale between them and it did not receive any remuneration in that regard and therefore same cannot be added to its turnover - The Division Bench observed There is nothing to show that the transfer of property in the goods or the by-products to be by way of sale, but only indicates that the FCI does not concern or bother itself for the broken rice, etc., for which it has no use and does not want to be burdened with the clause would not lead to the proof of there having been a sale. The transfer of property in the goods might take place even when there is no sale, say where there is a voluntary transfer or gifting away of the goods in question.
In the case on hand, the Assessment Order was passed 29-10-2018 and as per Section 107 of GST Act, an appeal shall be filed within three (3) months from the date of communication of the order. The Writ petition is filed on 17-12-2018 i.e., well within the period of limitation for filing appeal. Having regard to the dictum laid in Glaxo Smith's case (2 supra), this Court can either entertain the writ petition or refer the petitioner to Appellate authority. Since the impugned order was passed having no regard to the law laid down in the case of Food Corporation of India v. State of A.P, the writ was entertained.
The objection raised by learned counsel for the 4th respondent that in view of the arbitration clause, the writ petition is not maintainable, has no teeth. It should be noted that there are no disputes between the petitioner and the 4th respondent with regard to the implementation of the terms of the agreement. On the other hand, the dispute is between the Revenue and the petitioner as to whether or not the by-products form part of the consideration. Since such a dispute cannot be referred to and resolved by the Arbitrator, the Writ Petition is very much maintainable.
The impugned Assessment Order passed by the 1st respondent in so far as it relates to the levy of GST on the value of by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for milling of the paddy, is set aside - Petition allowed.
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2021 (1) TMI 174 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supplies of Snacks (HSN Code 21069099) - allegation that the benefit of GST rate reduction to his recipients not passed on by way of commensurate reduction in price - contravention of section 171 of CGST Act - penalty - HELD THAT:- It has been revealed that the Respondent has wrongly charged GST @ 5% on his unregistered brand “Dev Snacks” HSN Code 21069099 from his buyers w.e.f. 27.11.2017 to 31.12.2017 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017 - It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) of the CGST Act, 2017, it is clear that the violation of the provisions of Section 171 (1) is not covered under Section 122 (1) (i) of the CGST Act, 2017 as it does not provide penalty for not passing on the benefits of tax reduction and ITC and hence the penalty prescribed under Section 122 cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act.
Since, no penalty provisions were in existence between the period w.e.f. 27.11.2017 to 31.12.2017 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) can not be imposed on the Respondent retrospectively. Accordingly, the notice dated 11.03.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2021 (1) TMI 173 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supplies of “HP 678 LOS24AA Combo, Pack Ink Advantage Cartridges (Black & Tricolors) BOOUHG8BFI” - allegation that the benefit of reduction in the rate of tax of GST not passed on by way of commensurate reduction in price - Contravention of section 171 of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of reduction in GST rate from 28% to 18% on the above products w.e.f. 15.11.2017 to 31.07.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) of the CGST Act, 2017, it is clear that the violation of the provisions of Section 171 (1) is not covered under Section 122 (1) (i) of the CGST Act, 2017 as it does not provide penalty for not passing on the benefits of tax reduction and ITC and hence the penalty prescribed under Section 122 cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act.
Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.07.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) can not be imposed on the Respondent retrospectively. Accordingly, the notice dated 11.03,2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2021 (1) TMI 132 - AUTHORITY FOR ADVANCE RULING, HIMACHAL PRADESH
Maintainability of Advance Ruling application - requisite fee has not been deposited by the applicant - section 97 of Central Goods and Service Tax Act, 2017 and Himachal Pradesh Goods and Service Tax Act, 2017 - HELD THAT:- Section 97 (1) of CGST Act, 2017 provides that an applicant desirous of obtaining an advance ruling may make an application in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought. Similar provision is provided under section 97(1) of the HPGST Act, 2017. The prescribed fee as per provisions of Rule 104 of CGST Rules, 2017 is ₹ 5000/- under CGST head. Rule 104 of HPGST Rules, 2017 also provides for a fee of ₹ 5000/- under SGST head. Since the Advance Ruling has been sought with regards to applicability of provisions of CGST Act and HPGST Act, therefore the prescribed fee would be ₹ 5000/- each under CGST & SGST heads.
Since the application in this case is not accompanied by requisite fee of ₹ 10,000/- therefore the same is rejected - This ruling however does not in any way affect the right of the applicant to file a fresh application for seeking ruling on the same points provided it satisfies the provisions of section 97(1) of the CGST/ HPGST Act, 2017.
Application dismissed.
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2021 (1) TMI 131 - AUTHORITY FOR ADVANCE RULING, HIMACHAL PRADESH
Maintainability of Advance Ruling application - requisite fee has not been deposited by the applicant - HELD THAT:- Section 97(1) of CGST Act, 2017 provides that an applicant desirous of obtaining an advance ruling may make an application in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought. Similar provision is provided under section 97(1) of the HPGST Act, 2017. The prescribed fee as per provisions of Rule 104 of CGST Rules, 2017 is ₹ 5000/- under CGST head. Rule 104 of HPGST Rules, 2017 also provides for a fee of ₹ 5000/- under SGST head. Since the Advance Ruling has been sought with regards to applicability of provisions of CGST Act and HPGST Act, therefore the prescribed fee would be ₹ 5000/- each under CGST & SGST heads.
Since the application in this case is not accompanied by requisite fee of ₹ 10,000/-, therefore the same is rejected - This ruling however does not in any way affect the right of the applicant to file a fresh application for seeking ruling on the same points provided it satisfies the provisions of section 97(1) of the CGST/ HPGST Act, 2017.
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2021 (1) TMI 130 - ALLAHABAD HIGH COURT
Parallel enquiry proceedings by the officers of different jurisdiction - Issuance of summon in case survey has been conducted once, even if basis of material of inquiry/ investigation may be different - Section 70 of the C.G.S.T. Act - HELD THAT:- Section 6(2)(b) prohibits initiation of proceedings by the proper officer under U.P.G.S.T. Act on the same subject-matter where a proper officer under the C.G.S.T. Act has initiated any proceedings on the same subject-matter subject to the conditions specified in the notification issued under sub-Section (1). Section 6(2)(b) of C.G.S.T. Act imposes similar prohibition upon the proper officer under the C.G.S.T. Act. Thus, Section 6(2)(b) of the C.G.S.T. Act/ U.P.G.S.T. Act prohibits initiation of any proceedings on the same subject-matter by a proper officer under the C.G.S.T. Act/ by a proper officer under the State G.S.T. Act, as the case may be, on the same subject-matter - Section 70 of the U.P.G.S.T. Act or C.G.S.T. Act is part of Chapter XIV which contains provisions for inspection, search, seizure and arrest. Section 70 of both the Acts are pari materia which empowers the proper officer under the Act to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry.
Proper officer under the U.P.G.S.T. Act or the C.G.S.T. Act may invoke power under Section 70 in any inquiry. Prohibition of Section 6(2)(b) of the C.G.S.T. Act shall come into play only when any proceeding on the same subject-matter has already been initiated by a proper officer under the U.P.G.S.T. Act - Thus, the words “any proceeding” on the same “subject-matter” used in Section 6(2)(b) of the Act, which is subject to conditions specified in the notification issued under sub-Section (1); means any proceeding on the same cause of action and for the same dispute involving some adjudication proceedings which may include assessment proceedings, proceedings for penalties etc., proceedings for demands and recovery under Sections 73 and 74 etc.
Thus, there is no proceeding by a proper officer against the petitioner on the same subject-matter referable to Section 6(2)(b) of the U.P.G.S.T. Act. It is merely an inquiry by a proper officer under Section 70 of the C.G.S.T. Act - petition dismissed.
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2021 (1) TMI 129 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supplies of “Fortune ADW Detergent 1Kg” and “Fortune Rinse Aid 500 ml.” - allegation that the benefit of reduction in the rate of tax has not been passed on - violation of the provisions of Section 171 (1) of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of reduction in GST rate from 28% to 18% on the above products w.e.f 15.11.2017 to 31.03.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the Act.
Since, no penalty provisions were in existence between the period from 15.11.2017 to 31.03.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 28.03.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2021 (1) TMI 128 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supply of “Gamier Nat Shade 3” - allegation that the benefit of reduction in the rate of tax has not been passed on - violation of the provisions of Section 171 (1) of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of reduction in the rate of tax to the customers by way of commensurate reduction in the price of the product “Gamier Nat Shade 3” during the period from 15.11.2017 to 31.03.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the Act.
Since, no penalty provisions were in existence between the period from 15.11.2017 to 31.03.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 28.03.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2021 (1) TMI 127 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - supply of “Matchless Plus TTWG Grinder” - allegation that the benefit of reduction in the rate of tax has not been passed on - violation of the provisions of Section 171 (1) of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of rate reduction to the customers who had purchased the “Matchless Plus TTWG Grinder” for the period from 15.11.2017 to 31.07.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the Act.
Since, no penalty provisions were in existence between the period from 15.11.2017 to 31.07.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 28.03.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2021 (1) TMI 101 - HIMACHAL PRADESH HIGH COURT
Maintainability of petition - availability of alternative remedy - Delegation of powers by the commissioner - Provisional attachment - Proceedings initiated u/s 83 - petitioner admits that there is alternate remedy available, but contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions - HELD THAT:- It is not in dispute that respondent No.3 and the Divisional Commissioner, who has been appointed as Commissioner (Appeals) under the GST Act, are constituted under the Act and therefore, it is assumed that there is no illegal or irregular exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case, it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority, which is competent to pass the order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non-compliance of procedure, the same cannot be a ground for granting one of the writs prayed for. The defect, if any, can according to the procedure established by law, be corrected only by a court of appeal or revision.
The Hon’ble Supreme Court has in one of its latest judgments in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] held that even though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law.
Thus, what can be deduced from the aforesaid exposition of law is that the Hon’ble Supreme Court has recognized some exception to the rule of alternative remedy, i.e. where the statutory authority has not acted in accordance with the provisions of the Act or in defiance the fundamental principles of judicial procedure or has resorted to invoke the provisions, which are repealed or where an order has been passed in total violation of the principle of natural justice, but the High Court will not entertain a petition under Article 226 of the Constitution of India, if efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken in mechanism for redressal of grievance still holds the field. Meaning thereby, that when a statutory form is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation.
Thus, the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable.
Lastly and importantly, we find that the writ petition filed by M/S GM POWERTECH AND OTHERS VERSUS STATE OF H.P. & OTHERS [2020 (12) TMI 482 - HIMACHAL PRADESH HIGH COURT], the company against whom same and similar allegations, as have been levelled against the petitioner herein, being CWP No. 5462 of 2020, has not been entertained and the company has been relegated to avail of the alternative remedy.
The present petition is dismissed.
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2021 (1) TMI 100 - ORISSA HIGH COURT
Grant of Bail - availment/utilisation of bogus input tax credit (ITC) of ₹ 2.48 crores on the strength of fake purchase invoices issued in the name of 21 fictitious entities - guilt of the accused person have not crystallized yet - HELD THAT:- This Court while dealing with the contention of the counsels for the parties has taken note of the fact that in such matters the evidence is largely based on documentary evidence. Once the charge-sheet has been filed unless antecedents to the contrary can be demonstrated, the presence of the accused may not be required to take the prosecution to its logical conclusion.
The object of the law in question is to act as a deterrent in blocking loopholes in an otherwise nascent law which concerns itself with the collection of revenue for the State. Section 132(1) (i)of the Act provides that in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken, exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine. Similarly, Section 132(ii) of the Act provides a punishment with imprisonment for a term which may extend to three years and with fine when the amount in question is greater than ₹ 2 crores but does not exceed ₹ 5 crores. Likewise, the punishment prescribed under Section 132 (1)(iii) for amount between one crore to two crores, the maximum imprisonment can be for a maximum period of one year. In cases where the amount is less than one crore of rupees, the same has been made compoundable.
It may also be noted that the present proceedings are still at a teething stage and may, if the parties choose, be subject to the rigours of law as prescribed under the Statute i.e. assessment, appeal and revision etc. Till such time the guilt of the accused person would not have crystallized and it would difficult to pre-judge at the stage of hearing an application for bail what the ultimate punishment imposed would be. In such circumstances, keeping an accused in custody, might not ultimately achieve the ends of justice.
Reliance may be placed in the case of M/S. JAYACHANDRAN ALLOYS (P) LTD. VERSUS THE SUPERINTENDENT OF GST AND CENTRAL EXCISE, THE DEPUTY COMMISSIONER OF GST AND CENTRAL EXCISE HEAD QUARTERS PREVENTIVE UNIT, THE ADDITIONAL COMMISSIONER OF GST AND CENTRAL EXCISE, THE COMMISSIONER OF GST AND CENTRAL EXCISE [2019 (5) TMI 895 - MADRAS HIGH COURT], where on similar issue it was held that When recovery is made subject to ‘determination’ in an assessment, the argument of the department that punishment for the offence alleged can be imposed even prior to such assessment, is clearly incorrect and amounts to putting the cart before the horse.
It is directed that the petitioner be released on bail on furnishing a bail bond with one surety for the like amount to the satisfaction of the learned trial court with the conditions imposed.
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2021 (1) TMI 99 - GUJARAT HIGH COURT
Principles of Natural Justice - Service of Demand Notice - Detention/Confiscation of goods - case of petitioner is to the effect that the petitioner M/s. Lakshay Logistics was never served with any notice before the order of confiscation was passed on 16.03.2020 in Form MOV-11 - whether the transporter or the owner of the conveyance has been served with the notice or not, if not, whether it was mandatory or not? - HELD THAT:- Section 130 of the GST Act, provides for confiscation of goods or conveyance under given circumstances. Subsection (4) of Section 130 of the GST Act specifically provides that no order for confiscation of goods or conveyance or for imposition of penalty would be issued without giving the person an opportunity of being heard. The person in the said context would be the person interested in the goods as also the conveyance - Therefore, opportunity of being heard is to be given to both the owner of the goods as also the owner of the conveyance. In the present case, we do not find any notice affording opportunity of hearing to the owner of the conveyance. As such the impugned order of confiscation would be in violation of Section 130(4) of the GST Act. The order of confiscation would be without affording due opportunity of hearing. The impugned order as such cannot be sustained as the same has serious civil and financial consequences.
The matter is remanded to the competent authority to pass a fresh order strictly in accordance with law after affording opportunity of hearing to the parties concerned - Petition allowed by way of remand.
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2021 (1) TMI 59 - MADRAS HIGH COURT
Violation of principles of Natural Justice - validity of assessment orders - It is the case of the petitioner, that even though the representations given by the petitioner are reflected in the impugned assessment orders, the reason for rejection of the same has not been disclosed in the impugned assessment orders - Section 75 (5) of the Central Goods and Service Act, 2017 - HELD THAT:- It is clear from the Section 75 (5) of CGST Act that the respondent has got the power to grant further time to reply to the show cause notice if sufficient cause is shown by the dealer (assessee). The proviso also makes it clear that the respondent has got the power to grant three extensions to the dealer (assessee) for submission of reply. In the instant case, the reason for seeking extension of time by the petitioner to submit their reply was that they have to consult an Auditor with regard to the defects pointed out by the respondent in the show cause notice. When 33 defects have been pointed by the respondent for the assessment year 2017-18 and 38 defects for the assessment year 2018-19, and that too when spot inspection was conducted by the Enforcement Wing Officials of the respondent for a period of 22 days, this Court is of the considered view that the reason given by the petitioner for seeking extension of time to send reply to the show cause notice is a genuine one and they have shown sufficient cause for seeking extension. Admittedly, the respondent has also not considered, whether the reasons given by the petitioner is a genuine one or not in any of their correspondence or in the impugned assessment orders. As observed earlier, the show cause notice was issued on 11.10.2019 and the impugned assessment orders has been passed on 19.11.2019, within a very short span of time.
This Court is of the considered view that principles of natural justice has been violated, as no proper reasons have been given by the respondent for rejecting the petitioner's request for extension of time to send a reply to the show cause notice and as seen from the impugned assessment orders, a fair hearing was also not afforded to the petitioner - the tax demand under the impugned assessment orders almost works out to ₹ 1 Crore. After giving due consideration to the same, this Court is of the considered view that the petitioner must be put on terms before the impugned assessment orders are quashed.
The matter remanded back to the respondent for fresh consideration and the respondent shall pass final orders on merits and in accordance with law after affording sufficient opportunity to the petitioner - Petition allowed by way of remand.
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2021 (1) TMI 58 - MADRAS HIGH COURT
Principles of Natural Justice - validity of assessment order - assessment order challenged on the ground that no sufficient opportunity was granted by the respondent to the petitioner before passing of the impugned assessment orders and the principles of natural justice has been violated - HELD THAT:- Admittedly, the show cause notices were issued on 03.08.2020 and the impugned assessment orders have been issued on 31.10.2020, within a short period of three months. When the petitioner has been seeking for sufficient time for sending a detailed reply and that too when he has sought for documents, which was furnished only on 20.10.2020, the respondent ought to have given some more time to the petitioner to place all his objections with regard to the demand made by the respondent as per the show cause notices, dated 03.08.2020. However, as seen from the impugned assessment orders, sufficient time has not been granted to the petitioner to raise all objections available to them under law.
When it is the categorical stand of the petitioner that they are not liable to pay the demand as claimed by the respondent, the respondent ought to have given sufficient opportunity to the petitioner to raise all objections. However, the respondent has not done so, while passing the impugned assessment orders. However, this Court considering the huge amount of taxes payable as seen from the impugned assessment orders, this Court will have to put the petitioner on terms, before the impugned orders are quashed and remanded back to the respondent for fresh consideration on merits and in accordance with law - this court is of the considered view that the petitioner will have to pay a sum of ₹ 3,00,000/- in respect of each of the impugned assessment order on or before 05.01.2021 and on such payment, the impugned assessment orders shall stand quashed.
The matter remanded back to the respondent for fresh consideration and the respondent shall pass final orders on merits and in accordance with law, after giving adequate opportunity to the petitioner - petition allowed by way of remand.
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