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GST - Case Laws
Showing 21 to 40 of 157 Records
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2021 (4) TMI 1097
Failure of the petitioner to furnish monthly returns under Section 39 of GST Act - Principles of natural justice - HELD THAT:- The impugned orders dated 29.10.2018, 31.7.2019, 7.8.2019, 24.7.2019 and 20.8.2019 passed by the Respondent No.3, the Joint Commissioner of Sate Taxes, Danapur Circle, East Circle, Muzaffarpur in Form ASMT-13 need to be quashed and set aside, for the same to have been passed without following the principles of natural justice.
In terms of the impugned order, financial liability stands fastened. Thus, it entails civil consequences, seriously prejudicing the petitioner inasmuch as, without affording any adequate opportunity of hearing or assigning any reason. Shri Satyabir Bharti, learned counsel for the petitioner states that without prejudice to the respective rights and contentions of the parties, petitioner is ready and willing to deposit a sum of ₹ 5 lacs with the appropriate authority within a period of two weeks from today.
Petition disposed off.
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2021 (4) TMI 1095
Opening of portal for filing of form GST TRAN-I electronically or to accept the same manually - migration to GST regime - Kerela VAT Act - HELD THAT:- When the first respondent had all valid reasons to assume that the facilities to upload the necessary form was available till 30.12.2017, it is not available in the eye of law for the respondents to loathe the action of the first respondent in attempting to upload on 29.12.2017 - It is an undisputed fact that the assessees as well as the department have faced several difficulties, especially during the transitional stage of the new tax regime and even a Grievance Redressal Committee had also been formed for redressing the grievance of the dealers.
The learned Single Judge was perfectly justified in issuing the judgment impugned - Appeal dismissed.
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2021 (4) TMI 1094
Confiscation of goods - jewellery items - evasion of GST or not - HELD THAT:- Perusal of section 129 of the GST Act, 2017 makes it clear that the authorities under the Act are vested with powers to detain or seize and after detention or seizure to proceed further in the matter for assessing the tax and penalty, in case if it is found that the person transporting the goods or storing the goods while they are in transit indulge in contravention of the provisions of the GST Act or the Rules made thereunder. However, Section 130 of the GST Act deals with mens rea of a person who intends to avoid payment of taxes. If any person supplies or misuses any goods in contravention of the provisions of the GST Act or Rules with intend to evade payment of taxes or fails to account for any goods, on which he is liable to pay tax, the provisions of Section 130 of the GST Act applies.
Notice issued under section 130 of the GST Act (Ext.P2) makes it clear that, officers of the respondent department during shadow operation noticed two persons entering and coming out of the jewellery shop. The bags held by them were checked and those were found to be containing gold ornaments weighing 2270.13 grams including stone weight. Ext.P2 notice makes it clear that goods were not accompanied by any documents showing or reflecting payment of tax on them as per the provisions of the GST Act, 2017 - petition dismissed.
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2021 (4) TMI 1093
Refund of unutilized input tax credit - Validity of the attachment of the bank account of the petitioner - HELD THAT:- Without expressing any opinion on the stand taken by the respondents at this stage, we are of the view that petitioner may file rejoinder affidavit to the stand taken by the respondents so that the case can be decided one way or the other.
Let the rejoinder affidavit be filed within two weeks.
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2021 (4) TMI 1091
Input tax credit - seeking rectification of the GSTR-1 Form for the period of January 2018 to March 2018 - application was rejected on the ground that the period for making such an application expired at the end of September 2018 as per Section 37 of the West Bengal Goods and Services Tax Act, 2017 - period of January 2018 to March 2018 - HELD THAT:- As per Section 37(3) of the West Bengal Goods and Services Tax Act, 2017, It is to be noted that the Act does not provide any provision for appeal. Furthermore, there is no provision for condoning of such a delay.
There are no reason to interfere as the statute has provided a period of limitation for seeking rectification. The writ court cannot, by itself, condone such a limitation period. Condoning such delay would make the provision otiose and open the floodgates for similar cases - application dismissed.
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2021 (4) TMI 1059
Bail application - claiming false input tax credit on the basis of false sales invoices - HELD THAT:- The statement of accused was recorded and the accused in his statement has admitted that no goods were received by his firm dt his registered address from his suppliers and he claimed fake ITC on behalf of these fake firms. During investigation, the fifteen companies are found to be fake and the record of these firms and the E-way bill are filed with photographs of the persons which are found to be non-existent and even the premises of M/S Lotus Enterprises are not to be found on the address and on verification it was found that the address shown in the firm detail has never been running on the address and Mr. Omveer Singh was stated to be died on 31-07-2017, the death certificate and the panchnama of the company is also filed by the department and another panchnama of fake companies are found to be non-existent at the time of verification which clearly established that the accused has availed fake ITC credit on the basis of fake companies without doing any transactions with the firms.
The investigation in the matter is still under progress and the department has tried to interrogate the accused during investigation after taking permission from the Court but the accused on his health ground refused for being interrogated. As far as the argument of jurisdiction of the case and the nature of punishment of the offence is concerned, it is transpired that the department after getting the information that the accused firm is involved in supply of goods in UP and on the basis of the notification of the department as produced before this Court also seems to have power to investigate the present case and since the offence relates to tax evasion and fall under the economic offence which does not fall in ordinary offence punishable upto 5 years imprisonment and such type of offences should not be considered liberally particularly in the manner in which the offence is alleged to have been committed by the accused and if in such type of offences accused is granted bail, there is every livelihood that the investigation of the case will be hampered and as such I do not find it to be a fit case for bail.
This is not a fit case for bail and hence the bail application is liable to be rejected - bail application dismissed.
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2021 (4) TMI 1055
Validity of the Entry No.3(if) read with para2 of the Notification No.11/2017 Central Tax (Rate) dated 28.6.2017 amended by Notification No.3/19 Central Tax (Rate) dated 29.3.2019 - this according to the petitioner has created artificial restriction on the value of the land for undivided share of the land for the purpose of transfer of property for the undivided share - ultra vires to Section 7(2) of the CGST Act read with Entry 5 of Schedule III and Sections 9(1) and 15 of the CGST Act - HELD THAT:- Issue notice making it returnable on 14.6.2021. Ms.Nidhi Vyas, learned AGP waives service of notice on behalf of the State Government. Over and above regular mode of service, service through e-mode is permitted.
To be heard with Special Civil Application No.850 of 2017.
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2021 (4) TMI 1054
Validity of authority of the summary order in FORM GST DRC-07 dated 18.02.2021 - challenge on the ground that the summary order is suffering from the vice of non-consideration of submissions made by the petitioner and this also is the case of serious breach of principles of natural justice - HELD THAT:- The statutory provision of section 107 of CGVAT which provides for the appeal to the Appellate authority, if any person is aggrieved by the decision or order passed under CGST Act or the SGST Act or the UTGST Act by the adjudicating authority, within three months from the date on which the decision of the order is communicated to the person concerned.
It is deemed appropriate and justifiable to relegate the Petitioner to the appellate authority prescribed under the statute without entering into the merits of the matter. All issues, which have been raised before the Court can be raised before the appellate Authority within the prescribed time of three months, raised in this petition, on seeking a reasoned order from the concerned authority.
Let the reasoned order, if not already supplied to the petitioner, be provided within 07 days of the receipt of the copy of this order - Petition disposed off.
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2021 (4) TMI 1053
Detention of goods alongwith the vehicle - detention on the ground that the goods loaded could have been taken via other route which was shorter and instead 450 km long route has been taken via Gujarat - possibility of delivery of the goods in Gujarat or to the nearer place to Gujarat - HELD THAT:- Noticing the fact that the petitioner had sought the time before the respondent No.4 for the hearing of the show cause notice twice, only on the ground of the matter pending before the concerned authority for adjudication, it is deemed appropriate to relegate the petitioner to the concerned officer for adjudication of the show cause notice without entering into merits of the matter.
The parties are relegated to the respondent authorities for adjudication of SCN within one week - petition allowed by way of remand.
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2021 (4) TMI 1048
Refund of CGST - zero rated supply - Disposal of the case within 60 days - Section 16 of the Integrated Goods and Services Tax Act, 2017 - HELD THAT:- Issue notice to the respondents.
List the matter on 03.05.2021.
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2021 (4) TMI 1031
Refund of IGST - IGST on ocean freight - It is clarified that while the question of the Petitioner being entitled to refund will await the final decision of the Supreme Court in UNION OF INDIA AND ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2021 (1) TMI 647 - SC ORDER], the Opposite Parties will not require the Petitioners before this Court hereafter to pay IGST on ocean freight until further orders.
These writ petitions are adjourned sine die with liberty to the parties to mention them for listing after disposal of the SLPs pending before the Supreme Court.
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2021 (4) TMI 996
Detention of goods alongwith the conveyance - E-way Bill was not tendered for all the Invoices/Goods in movement which are the one of the documents for transportation of goods - scope of appeal - Demand of IGST alongwith the penalty u/s 129(1)(a) of CGST Act, 2017.
Whether submissions made by respondent through cross objections are beyond the purview of appeal filed by the Appellant/Department? - HELD THAT:- The appeal have been filed by the appellant being aggrieved with the penalty imposed under Section 109 (1) (a) of the CGST Act, 2017. Therefore, the respondent was required to file their cross objections upto the extent of the issue raised by the appellant in their appeal memo. But on the contrary to this, it is found that the respondent has raised the fresh plea in their cross objections which I do not find proper as per provisions of Section 107(1) of the CGST Act and Rules made thereunder. If the respondent was aggrieved with the said Order in Original he should have file separate appeal within the prescribed time limits - the cross objections filed by the respondent is beyond the purview of appeal. Therefore, it would not be proper to discuss the issues in the instant matter which are out of scope of the appeal.
Whether penalty imposed under Section 129(1)(a) of CGST Act,2017 by the Adjudicating Authority is proper or not? - HELD THAT:- In the instant case, penalty should have been imposed by the adjudicating authority equal to the fifty per cent of the value of the goods reduced by the tax amount paid thereon, whereas it is found that adjudicating authority has imposed penalty equal to 100% per cent of the tax payable on the detained goods which is not proper and correct - In the instant case value of seized goods is ₹ 12,83,589/- therefore, penalty is stands modified to ₹ 6,41,795/- (rounded up) under clause (b) of sub section (1) of Section 129 of CGST Act, 2017 and the penalty already deposited by the respondent may be considered for appropriation accordingly.
Appeal allowed in part.
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2021 (4) TMI 981
Concessional rate of duty - Works contract - tender agreement for wet leasing of Robotic spot-welding machine and laser cutting and welding machine - activities under tender agreement for comprehensive Annual Maintenance Contract - benefit under Schedule VI(a) and VI(b) are eligible for serial no. 3 (v)(a) or 3 (vi) of Notification No.11/2017-CT(Rate) dated 20.06.2017 as amended and corresponding entry under state notification.
HELD THAT:- In the case at hand, all the Supplies in the tender are not supply made by the appellant to ICF in as much as in respect of the disposal of the obsolete M&Ps, the supply is by the ICF and the appellant is the recipient. Further, the supplies are not made in conjunction with each other in as much as the Wet-leasing of M&Ps is for a period of 10 years; Construction, supply, installation, commissioning, etc is to be completed within 20 months of LOA and Comprehensive AMC is to be supplied for 5 years after the warranty period. Therefore, the supplies under the Tender in Schedule-I to Schedule-VI are not supplies made to a recipient nor done in conjunction with each other and hence the entire supplies based on the Tender is not a Composite Supply - there is no merit in the claim of the appellant that the supplies based on the entire tender is a Composite supply of Works Contract and the benefit of entry S.No.3(v) of notification No.11/2017-C.T.(Rate) dated 28.06.2017 is not available for the entire tender.
As per the contract agreement for wet-leasing, it is an activity consisting of leasing of M&Ps in working condition, providing skilled and unskilled manpower, spares, consumables for the entire period of leasing during which the leased goods are reflected in the books of the lessor. The lease charges are paid on a quarterly basis to the appellant based on the productivity. The M&Ps are transferred to ICF at the, end of the lease period. Just because, there is a transfer of property in goods after the lease period, the activity is not a works contract. The activity of wet-Leasing is squarely classifiable under SAC 9973 Leasing or rental services with or without operator as held by the LA. Therefore the benefit of entry at 3(v)(a) of Notification No.11/2017-C.T.(Rate) dated 28.06.2017 is not applicable in respect of Wet-Leasing of the M&Ps.
CAMC, the activity being Maintenance - HELD THAT:- The same is not covered under entry 3(v) of Notification No. 11/2017-C.T.(Rate) dated 28.06.2017 as amended, which is applicable only to works contract by way of construction, erection, commissioning or installation of original works pertaining to railways.
Benefit of entry Sl.No. 3 (vi)(a) of the Notification No. 11/2017-C.T.(Rate) dated 28.06.2017 as amended - HELD THAT:- The above entry is applicable in the case of composite supply of works contract of maintenance of a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession to the class of receivers specified. ICF is a ‘Production unit’ of Railways and belongs to ‘Central Government’ and manufacturing steel coaches is not an activity where the Government is engaged as public authorities. As per the Explanation to the said entry, it is evident that when the activity is not in the capacity of ‘Public authority’, then the activity is for ‘business’ only. ICF is putting up the said Plant to manufacture Stainless Steel coaches, which is not an activity undertaken as a ‘Public Authority’ and therefore, the benefit of the above entry is not applicable to the appellant in respect of CAMC.
There are no reason to interfere with the Order of the Advance Ruling Authority in this matter. The subject appeal is disposed of accordingly.
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2021 (4) TMI 980
Grant of Interim Bail - learned Senior Advocate further submits that his client shall file an Undertaking within five days to the effect that she shall not create any encumbrance with respect to the properties of the business as well as her personal properties till further orders and that his client will deposit the amount representing the admitted duty element - HELD THAT:- Issue notice, returnable on 10.05.2021 subject to conditions imposed.
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2021 (4) TMI 979
Grant of anticipatory bail - alleged non payment of GST - non -filing of GSTR 3B returns for the period from October onwards - Sections 18 and 18A of the SC/ST( Prevention of Atrocities) Act, 1989 - HELD THAT:- The applicant has not yet been made an accused. On the basis of the alleged statement given by Abdul Saleem, the applicant has allegedly dealt with the filing of returns of the Agency. He had allegedly made false invoices. But as of now, no concrete evidence sufficient either to implicate him as an accused or proceed against him has been collected. Admittedly, A.R Agencies is a proprietorship belonging to Rajoob. He alone is to answer for anything done by the agency. Applicant has nothing to do with the Agency and has not gained any income from that business. His Bank accounts are available for scrutiny, and the applicant is willing to cooperate by producing those documents. His custodial interrogation may not be necessary under the circumstances. The CGST officials had sufficient power to implicate the applicant in case they had the required materials with them. The fact that they have not arraigned him as an accused indicates lack of material. The applicant's apprehension of arrest is reasonable, because Abdul Saleem, who is also not a proprietor, has been arrested.
It is settled position that the applicant apprehending arrest need not be made an accused in a crime to seek the relief of anticipatory bail. Its is sufficient in case he succeeds in establishing that his apprehension of arrest is reasonable - the applicant is entitled to the relief of anticipatory bail.
The bail application is allowed and the applicant is directed to appear before the investigating officer within three weeks.
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2021 (4) TMI 974
Validity of adjudication order - Commissioner (Adjudication), CGST, Delhi (East) is the competent officer - the grievance raised by Mr. Mittal with regard to the competency need not detain us, as, in effect, the contesting respondents have taken the position that, the demand made against the assessee, no longer subsists - HELD THAT:- It is only when, the contesting respondents were to recall and/or review the order, this aspect may gain significance, and, at that point in time, the petitioner would be entitled to contest the matter and, perhaps, revive the writ petition. Liberty, in that behalf, is granted in the event such a situation arises.
Insofar as Mr. Mittal's grievance, as regards the typographical error, is concerned, he is right. Consequently, the order dated 05.04.2021 shall stand corrected to the extent that Mr. Hriday Singh’s rank would be shown as Assistant Commissioner, CGST - Application disposed off.
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2021 (4) TMI 973
Clandestine removal - cigarette sticks - perishable goods or not - prohibition in removal of 190 cartons comprising 22,26,000 cigarette sticks - HELD THAT:- Issue notice. Mr. Arunesh Sharma accepts service on behalf of Mr. Harpreet Singh, who appears on behalf of respondent nos. 1, 2, 4 and 5 while Mr. Aditya Singla accepts service on behalf of respondent no. 3. 4.1 Counter affidavits will be filed within four weeks. Rejoinders, thereto, if any, will be filed before the next date of hearing. 4.2 In the meanwhile, the petitioner is given liberty to approach the concerned officer for release of the goods qua which the prohibition order has been passed.
List the matter on 25.05.2021.
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2021 (4) TMI 970
Provisional attachment of bank account of the petitioner - HELD THAT:- The petitioner has made certain adhoc payments pending investigation as a consequence of which the attachment of the bank account of the petitioner i.e. Mutharamman Iron and Steels has been lifted.
The challenge to the provisional attachment does not survive any longer and recording the aforesaid, this writ petition is closed.
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2021 (4) TMI 968
Principles of Natural Justice - input tax credit - whether the term “other civil structure” used in the definition of ‘Plant and Machinery’ restricts the Landfilling pit from considering it as Plant and Machinery and thereby restricts the Input Tax Credit (ITC) under Section 17(5)(d) of the GST Act? - HELD THAT:- In the present case principles of natural justice and fair play have certainly been violated as the report of the Principal Commissioner of Central Tax was never given to the petitioner at any point of time. The petitioner has now obtained a detailed report submitted by the Principal Commissioner of Central Tax from the Right to Information Act and he is having the aforesaid report.
Keeping in view the fact that the principles of natural justice and fair play has been violated, alternative remedy will not be a bar in the present case, the matter is remitted back to the Authority for Advance Ruling - The petitioner shall appear before the Authority for Advance Ruling on 26.04.2021 - Petition allowed by way of remand.
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2021 (4) TMI 963
Refund of ITC versus claim of duty draw back - option to select one scheme - Circular No.37/18-Customs dated 09.10.2018 - HELD THAT:- It is clear from a reading of Section 54(3) that the petitioner is entitled to one or the other of two benefits, i) duty draw back or ii) Input Tax Credit. Thus, an option has been extended to an assessee engaged in zero rated sale to either claim the benefit of duty drawback or the benefit of refund of ITC. That is why, in the present case, the petitioner, for the month of July, 2017 has opted to stick with the claim of duty draw back seeing as the amount of drawback is higher than the ITC for the months of August and September, 2017 - On a plain reading of Section 54 (3) it is found that the claim of refund to be in order. The orders of the appellate authority are set aside and the authority is directed to refund the sanctioned amounts within a period of six (6) weeks from today. In doing so, the contents of paragraph 2.5 of the Circular will not stand in the way since a circular cannot stand in the way of a benefit offered under a statutory scheme.
Paragraph 2.5 of the circular, insofar as it is contrary to the statutory provisions of Section 54(3) is bad in law.
Petition allowed.
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