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GST - Case Laws
Showing 1 to 20 of 157 Records
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2021 (4) TMI 1354
Maintainability of appeal - appeal rejected on the ground of non-submission of certified copy of the Order appealed against without grant of any opportunity of being heard and without taking into reference the certified copy of the Order appealed against - gravamen of the petitioner’s submission being that the certified copy of the impugned order as supplied by the authority stands placed on the records of the Appellate Authority, but notwithstanding the same, the appeal stands rejected solely on ground of non-filing thereof.
HELD THAT:- It is not in dispute that the copy of the order impugned, annexed along with the appeal is the very same copy of the record which stands supplied to the petitioner through digital mode during the time of current Pandemic Covid-19.
The impugned order, passed by the Additional Commissioner (Appeal), Bihar State GST, Patna West Division, Patna [Annexure-P/5] stands quashed and set aside with the petition being disposed of and the matter being remanded to the Appellate Authority for consideration afresh.
Petition disposed of on mutually agreeable terms.
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2021 (4) TMI 1345
Condonation of delay in filing application - sufficient reasons/difficulties submitted by the Applicant or not - Whether the ruling of Authority for Advance Ruling, Odisha can be set aside or modified based on changed facts/circumstances as the contract is terminated on dt. 04.03.2021? - Place of supply - reverse charge mechanism - HELD THAT:- The delay happened due to the practical difficulties faced by the Applicant on account of restrictions prevailed during that time and outbreak of COVID-19 pandemic. Therefore, the delay of six days as empowered under proviso to sub-section 2 of Section 100 of CGST/SGST Act, 2017 is condoned.
The Advance Ruling Authority has made the advance ruling based on the facts that the Applicant will use the office premises of OPTCL for rendering the consultancy service in India. This situation does not arise as the contract has been terminated. Whatever service has been rendered by M/s. Tokyo Electric Power Company (TEPCO) are executed from Japan. Now it is clear that the fact and circumstances based upon which the advance ruling has been made now changed. In such situation, we hold that ruling passed by the Authority for Advance Ruling, Odisha is not legal & proper as per law.
Taxability of consultancy service rendered (training conducted in Japan) by the Applicant in Japan - HELD THAT:- In such situation, the place of supply of service is more important. It is already enumerated under sub-section 2 of Section 13 of the IGST Act, 2017 that under such situation place of supply will be location of the recipient of the services. As the recipient of service is M/s. OPTCL in India, then the place of supplied service by M/s. Tokyo Electric Power Company (TEPCO) will be treated as in India.
The supplier of service M/s. Tokyo Electric Power Company(TEPCO) is located in Japan, which is non-taxable territory. The recipient of service M/s. Odisha Power Transmission Corporation Limited is located in India, which is the taxable territory and place of supply of service will be in India. Therefore, in our view, the consultancy service rendered by M/s. Tokyo Electric Power Company (TEPCO) to M/s. Odisha Power Transmission Corporation Limited upto dt.04.03.2021 covered under Entry Sl.No.1 of Notification No. 10/2017-Integrated Tax(Rate) dated 28.06.2017. Accordingly, the tax liability rest upon the recipient of the service i.e. M/s. Odisha Power Transmission Corporation Limited, on reverse charge basis.
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2021 (4) TMI 1314
Maintainability of petition - time limitation - appeal was dismissed while observing that the same has not been filed within stipulated period as prescribed under Section 107 (1) of Central Goods and Services Tax Act, 2017 - opportunity of hearing to the present petitioner not provided - HELD THAT:- From perusal of impugned order dated 20.03.2020 (Annexure P/1) shows that the appeal was preferred by the petitioner on 16.03.2020 and the same has been dismissed on 20.03.2020. The order does not reflect that any opportunity of hearing was afforded to the present petitioner to produce material to explain delay and, therefore, apparently the appeal has been dismissed within a short period of 4 days.
Thus, since prima-facie the order impugned appears to have been passed in violation of principle of natural justice, without commenting on merits of the case, it is deemed proper to quash the order impugned dated 20.03.2020 and remit the matter to the Appellate Authority to consider and decide the petitioner’s explanation pertaining to condonation of delay - petition allowed by way of remand.
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2021 (4) TMI 1292
Classification of goods - HSN code - flavoured milk - whether it is to be considered under either 0402 or 2202 90 30? - Notification No.1/2017 Central Tax (Rate) dt: 28.6.2017 - whether ‘flavoured milk’ can be considered a beverage containing milk? - HELD THAT:- A beverage is "(chiefly in commercial use) a drink other than water. It is a liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed". The instant product, the flavoured milk is undoubtedly a beverage containing milk. It is moreover, a ‘preparation’ which was proved, substantiating the present argument.
Even though the product in question is a dairy produce and also an edible product of animal origin, the qualifier that it is “not elsewhere specified or included” makes it ineligible to be classified under the chapter 4. The product in dispute as it is already specified and included under chapter 22 dealing with goods /items of “Beverages, spirits and vinegar” makes it ineligible to be classified under chapter 4 - the commodity ‘flavoured milk’ merits classification under beverage containing milk under tariff heading 2202 90 30. The rate of tax applicable for the said tariff item is 12% GST (6% CGST + 6% SGST) under entry no. 50 of Schedule II of Notification No.1/2017 – Central (Rate) dated 28.06.2017 as amended.
The Ruling of the AAR is in tune with legal position and it needs no interference and the appeal is accordingly dismissed.
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2021 (4) TMI 1286
EOU - refund of Input Tax Credit - inward supply utilized for Export of Services without payment of Tax - Section 54 of CGST Act, 2017 - HELD THAT:- In the instant case though the message was conveyed to the appellant through GST portal regarding issuance of SCN (RFD-08) and rejection of his refund claim, but the appellant could not view/download the copy of show cause notice (RFD-08) as well as Order-in-Original (RFD-06) through GST portal hence, he could not reply to show cause notice as well as could not attend the personal hearing on the scheduled date and time.
There is no doubt that the appellant had not got the opportunity to be heard as well as to defend his case. Therefore in the instant case, it is found that principle of natural justice has not been followed properly. Further, ongoing through the column No. 3 of Order-in-Original dated 10-12-2020 (RFD-06) it is found that the whole amount of refund claim mentioned as inadmissible but in the order portion neither the rejection amount has been mentioned nor any provisions/acts/rules has been mentioned by which refund has been rejected.
Order-in-Original is non-speaking, non-reasoned order and proper opportunity to be heard has also not been given as per Rule 92(3) of CGST Rules, 2017 to the appellant. Therefore, it is not possible at the appellate level to decide the case on merits - matter remanded back to the adjudicating authority to provide the proper opportunity of being heard to the appellant and decide the case afresh with proper reason and details speaking order by following the principle of natural justice.
Appeal allowed by way of remand.
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2021 (4) TMI 1275
Seeking modification in the condition to move outside Sundargarh district in relation to his business work - HELD THAT:- Having heard both the parties, learned J.M.F.C., Rourkela or the court in seisin over the matter is directed to permit the petitioner to move outside the jurisdiction of Sundargarh in appropriate cases keeping in view his genuine requirement for the purpose.
Application disposed off.
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2021 (4) TMI 1232
Demand of tax with penalty - petitioner was not afforded reasonable opportunity of presenting his case before the said authority - violation of principles of natural justice - HELD THAT:- In plain terms the order passed by the said authority suffers from grossest possible violation of principles of natural justice. Having issued notice calling upon the petitioner why certain demand of tax with penalty not be confirmed he passed the final order confirming the demand on the same date as the notice and long before the time he had granted the petitioner to respond to the notice. We may recall the show-cause notice was issued on 06.11.2018 which required the petitioner to appear before the said authority on 23.11.2018. Without permitting the petitioner to appear and file reply and oppose the demands the Inspector confirmed the demand by passing separate orders on 06.11.2018. This was wholly impermissible - Petition disposed off.
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2021 (4) TMI 1223
Seeking enlargement of applicant on Regular Bail - applicant has undergone almost 16 months of incarceration and now prays for the release - HELD THAT:- The issue decided in the case of PARESH NATHALAL CHAUHAN VERSUS STATE OF GUJARAT [2020 (5) TMI 170 - GUJARAT HIGH COURT] where it was held that The loss of ₹ 60 Crores to the public exchequer so far cannot be considered as a small amount. It appears that it is only owing to timely detection of the crime that the loss so far is ₹ 60 Crores; it would have been much-much more in absence of detection of the crime. It is not as if the petitioner stopped at ₹ 60 Crores; in all probability he would have continued the racket in absence of its detection.
The present application is filed seeking the same prayer. This Court is of the considered opinion that there is no substantial change in circumstances after the rejection of the earlier application. The aspect of recovery of amount of ₹ 14,10,87,517/- till 17.03.2020 as mentioned in the affidavit dated 08.04.2020 was before the passing of the order dated 05.05.2020 by this Court in Criminal Misc. Application No.6237 of 2020 - Application dismissed.
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2021 (4) TMI 1222
Bail application - evasion of tax - inculpatory statement of the applicant under duress and coercion - It is submitted that the present offence is triable by the Magistrate and considering the burden of work and pending cases in trial court the applicant may be released on bail as the applicant is in jail since 14.12.2020 - HELD THAT:- Keeping in view nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant.
The applicant shall deposit an amount of ₹ 2,00,000/- before the State Tax Officer and on depositing the aforesaid amount and producing appropriate document with regard to the depositing of the amount the applicant is ordered to be released on regular bail and further the applicant shall also file an undertaking to deposit the remaining amount of ₹ 13,00,000/- within the period of eight weeks - application allowed.
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2021 (4) TMI 1219
Grant of Bail - pendency of the trial on the ground that chargesheet was not filed - evasion of tax by creating fake invoices - HELD THAT:- Without discussing the evidence in details as well as without going into details, primafacie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with the complaint being ACST/FSU11/ PUNDRIK TRIVEDI/201920/ B64 dated 27.01.2020 and complaint dated 24.03.2020 filed in Criminal Case No. 30267 of 2020 on executing a bond of ₹ 50,000/- with two local sureties of ₹ 25,000/- each to the satisfaction of the trial Court and subject to the conditions imposed.
Application allowed.
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2021 (4) TMI 1213
Refund of IGST - goods exported out of India - grievance of the petitioner is that exports were made in September 2017, but till date, IGST is not refunded to the petitioner - HELD THAT:- The issue involved decided in case of M/S. PRECOT MERIDIAN LIMITED VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT COMMISSIONER OF CUSTOMS [2020 (1) TMI 90 - MADRAS HIGH COURT] where it was held that respondents are directed to refund the amount of IGST paid by the petitioner for the goods exported from India which are zero rated supplies, within a period of six weeks from the date of receipt of a copy of this order.
The first respondent herein is directed to sanction the refund of IGST of ₹ 2,54,449/- paid by the petitioner in respect of the goods exported i.e 'Zero Rated Supplies' made vide shipping bills mentioned herein above along with entitled interest @ 9% to the petitioner till the date of actual refund, within a period of six weeks from the date of receipt of a copy of this order - petition allowed.
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2021 (4) TMI 1212
Refund of IGST - Export of goods - zero rated supplies - grievance of the petitioner is that exports were made in September 2017, but till date, IGST is not refunded to the petitioner - HELD THAT:- The issue involved decided in case of M/S. PRECOT MERIDIAN LIMITED VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT COMMISSIONER OF CUSTOMS [2020 (1) TMI 90 - MADRAS HIGH COURT] where it was held that respondents are directed to refund the amount of IGST paid by the petitioner for the goods exported from India which are zero rated supplies, within a period of six weeks from the date of receipt of a copy of this order.
The first respondent herein is directed to sanction the refund of IGST of ₹ 2,35,008/- paid by the petitioner in respect of the goods exported i.e 'Zero Rated Supplies' made vide shipping bills mentioned herein above along with entitled interest @ 9% to the petitioner till the date of actual refund, within a period of six weeks from the date of receipt of a copy of this order - petition allowed.
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2021 (4) TMI 1209
Levy of GST - license fee granted to the Private Contractors to run parking of vehicles - HELD THAT:- The license, rental, lease amounts to supply and as per Schedule II of the Act, license to occupy the land and renting of an immovable property, are also supply of services - It is an admitted fact that all the writ petitioners are Contractors, who were granted license to run parking areas for vehicles in the Railway premises by the Southern Railway. All the writ petitioners participated in the tender process and were successful in the tender and entered into an agreement with the Southern Railway, agreeing certain terms and conditions stipulated.
When there is no provision to collect the GST from the contractors on the license fee, then the terms and conditions of the agreement became null and void and therefore, the conditions imposed in the agreement would not be binding on the contractors. In this regard, the learned counsel for the petitioner relied on Section 32 of the CGST Act and sub-clause (2) to Section 32 stipulates that “no registered person shall collect tax except in accordance with the provision of this Act or the Rules made thereunder” - In the present cases, even before the introduction of the present CGST Act, the Contractors were paying the taxes based on the erstwhile Act, mainly Service Tax Act. After the implementation of the CGST Act, when there is prohibition of unauthorised collection of tax, the demand now made by the Southern Railways is in violation of the provisions of the CGST Act and therefore, the writ petitions are to be allowed.
When there is a specific bar under the Act, more specifically, under Section 32, there is no reason whatsoever to make a demand for recovery of GST from the writ petitioners. Such a collection of tax is unauthorised and it is clarified that the collection of tax in such circumstances, more specifically, from the licensees are impermissible - In these cases, the respondent-Railways have treated the parking as rented out of property and therefore, the same would not fall under the provisions of the CGST Act and the writ petitioners are not liable to pay the tax.
This Court is of the considered opinion that, the liability regarding tax regime is concerned, the Courts are expected to adopt strict interpretation of law. Liberal interpretation is impermissible, which can be adopted only in respect of certain welfare legislations and as far as the tax laws are concerned, it is to be borne in mind that strict interpretation of provisions are to be adopted, so as to recover taxes from the assessees by following the procedures contemplated - In the present cases, liability of the licensees are well enumerated with reference to Section 7 and Schedule II to the Act. As discussed above, when the liability is unambiguous and the nature of services are also falling within the scope of Section 7 r/w Schedule II, then there is no reason to consider the claim of the writ petitioners for invoking Section 32 of the Act.
It is made very clear that the Southern Railways is liable to pay service tax for the license fee collected from the respective contractors and the respective contractors are liable to pay service tax for the collections made from the end users/customers in respect of the parking slot services. Such contractors are bound to register their name under the CGST Act, by following the procedures contemplated therein there are two services involved in the entire transactions and the first service is from the Railway to the contractors and the second service is from the contractors to the customers/end users - there are two services involved in the entire transactions and the first service is from the Railway to the contractors and the second service is from the contractors to the customers/end users.
Petition dismissed.
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2021 (4) TMI 1203
Cancellation of petitioner's registration - no reasons cited for such cancellation - principles of natural justice - HELD THAT:- Whatever be the tax demand of the department against the petitioner, the action under challenge cannot survive the test of law. The impugned notice has been issued only for cancellation of registration, that too without citing any particular reason. The reason stated is picked up from the statute itself namely, non-compliance of any specified provisions of GST Act or the Rules made thereunder.
Without specifying which provisions of the Act or the Rules and in what manner the petitioner has approached, granting hearing to the petitioner would be an empty formality. This apart, admittedly, so far no order cancelling the petitioner’s GST registration has been passed. If that be so, without resorting to the power of suspending the registration, if there is any, the respondent surely cannot block the petitioner’s GST account on the official portal. Any such action would prevent the petitioner from carrying on his business in lawful manner. Such an action would have the effect of suspension of the petitioner’s registration.
SCN is quashed on the ground of being vague and imprecise - the respondents are directed to unblock the petitioner’s GST account on its official portal - Petition disposed off.
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2021 (4) TMI 1177
Refund of GST - rejection of ITC debited relating to export of goods without payment of duty - rejected on the ground that appellant have not submitted the supporting documents in respect of the refunds filed under Rule 92(3) of CGST Rules, 2017 and Circular No.79/53/2018- GST dated 31.12.2018 - HELD THAT:- There are force in the appellant’s plea that the said impugned order was passed without issue of deficiency memo in GST Form -03 and also without issue of RFD-08 without being heard to him. Further, it is also provided in Rule 92(3) of CGST Rules, 2017 that no application for refund shall be rejected without giving the applicant an opportunity of being heard - the adjudicating authority while rejecting the refund claims of the appellant neither deficiency memo in Form GST RFD-03 nor show cause notice in Form RFD-08 has been issued and also any relevant provisions of law/rules for rejection of their refund claims has been discussed.
It is also found that non-passing of speaking order indeed amount to denial of natural justice. Before passing of order atleast deficiency memo and show cause notice and at least speaking order should have been passed by giving proper opportunity of personal hearing in the matter to the appellant and detailing factors leading to rejection of refund claims. Such order is not sustainable in the eyes of law - In view of the above legal provisions provided in CGST Act and Rules made thereunder it would be appropriate at the part of adjudicating authority to provide the proper opportunity of being heard to the appellant and pass of fresh speaking order accordingly impugned order is set aside - appeal allowed by way of remand.
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2021 (4) TMI 1172
Seeking grant of Bail - irregular input tax credit claimed without any transportation of goods - fake bills and invoices input tax credit was passed on to firms which were existing in papers - HELD THAT:- The bail cannot be granted to petitioner - bail application rejected.
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2021 (4) TMI 1137
Levy of CGST and SGST - Supply of branded packaged rice or not - assessment based on quantity of rice found in the godown - HELD THAT:- The officials of GST department had carried out a surprise visit to the premises of the petitioner- company from where several incriminating documents and sizable quantity of packaged rice were seized. The invoices and other sales details established that for the period under consideration, the petitioner had supplied rice in packages of 25 kg each which carried the brand name Aahar Normal, Aahar Gold or Aahar Premium. Sizable quantity of such packaged branded rice was also seized from the premises. It was on the basis of such materials that the adjudicating authority came to the conclusion that the petitioner was engaged in supply of packaged branded rice. The Appellate authority confirmed the finding of the adjudicating authority and dismissed the Appeal of the petitioner. The authorities did not accept the petitioner’s ground of the seized rice being only for the internal use and purposes.
There are no error in the view of the authorities. Firstly, the conclusions of these authorities are based on assessment of materials on record. Secondly, the seizure of sizable quantity of packaged branded rice was an indication of the petitioner dealing in such product. Thirdly, the tax is not demanded on rice stored and seized but on the quantity of rice already supplied which was assessed from the bill books and invoices seized from the premises of the petitioner-company. Further, the petitioner’s defence that the quantity of rice lying in the godowns was merely for internal use was also not backed by any evidence. Close to three thousand bags of rice were found lying in the godown. The petitioner’s bare contention that it was not meant for supply but only for internal purposes of grading the rice or part of the stock was lying because of quality disputes, was not backed by any evidence and was therefore correctly not accepted by the authorities. Lastly, the petitioner’s contention that the brand was not a registered brand and therefore the petitioner had no liability to pay tax also was rightly not accepted - The brand names under which the petitioner was selling the rice may not have been registered, nevertheless it could lead to an actionable claim in a court of law. In order to avoid inviting liability of tax, the petitioner had to forgone such actionable claim which also the authorities found the petitioner had not done.
Petition dismissed.
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2021 (4) TMI 1112
Levy of GST - Supply of services or not - Principles of mutuality - amount collected as membership subscription fees paid by the members of the applicant towards facilities provided by the applicant - amount collected as infrastructure development fund for the development and maintenance of the facilities provided by the applicant - HELD THAT:- Finance Act, 2021 has over ruled what the Courts have held till now and has countered the Principle of Mutuality by way of Explanation which states that the members or constituents of the club and the club are two separate entities and persons for the purpose of Section 7 of CGST Act, 2017 which defines Supply - by virtue of Section 1 of Finance Act, 2021, the amendment brought in Section 7 of CGST Act, 2017 by way of Section 108 of Finance Act, 2021, will only come into effect on the date when Central Govt notifies the same and then the same will be notified with the corresponding amendments passed by the respective States and Union territories in respective SGST/ UTGST Act.
Thus, unless the amended Section 7 of CGST Act, 2017 is notified, the applicant is not liable to pay GST on subscription fees and Infrastructure development fund collected from the members as per the Hon'ble Supreme Court judgment in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] - application allowed.
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2021 (4) TMI 1110
Copy of reply not placed on record - HELD THAT:- Mr. Ravi Prakash will ensure that the reply is placed on record. Furthermore, Ms. Venus Mehrotra, who appears on behalf of Ms. Sonu Bhatnagar, i.e., the counsel for respondent no. 2 and 8 says that a reply to the captioned application as well as a counter-affidavit to the main writ petition will be filed.
In the previous order, i.e., order dated 17.03.2021, the appearance of Ms. Sonu Bhatnagar has been recorded, albeit incorrectly, for respondents no. 2 to 8. We are told that Ms. Bhatnagar appears on behalf of respondent no. 2 and 8. Furthermore, Mr. Ravi Prakash appears on behalf of respondent no. 1, 3, 4, 5, 6, 7, and 9. The record shall stand corrected to that extent.
List on 07.07.2021.
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2021 (4) TMI 1102
Seeking a direction to the respondents to extend the period of time for submitting of Form GSTR-9 and GSTR-9C for the financial year 2019-20 - Section 44 of the CGST Act, 2017 read with Section 35(5) of the RGST Act and Rule 80 of the CGST Rules, 2017 - HELD THAT:- The arguments advanced by the learned counsel for the petitioner cannot be accepted since the period for filing of the return is fixed by the Statute and it is the statutory authority alone who has power and authority to extend any period for compliance. Therefore, we are not inclined to entertain the instant writ application and leave it to the petitioner, if so advised, to approach the statutory authority to seek further extension.
We refrain to entertain the present writ application and the same stands dismissed.
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