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GST - Case Laws
Showing 1 to 20 of 75 Records
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2021 (5) TMI 1057
Grant of ad-interim relief of release on bail - appellant submits that apart from Rs.1 Crore deposited pursuant to the direction issued on the last occasion, the appellant has also deposited a sum of Rs.53 Lakhs. He further submits that his client be given some time to deposit the balance amount so as to make up Rs.3,85,20,886/- - HELD THAT:- The order dated 22.04.2021 absolute. The relief of bail shall be available to the appellant during the pendency of trial of Case No.167 of 2020.
It is made clear that the effect of the Undertaking shall continue to be operative till the proceedings are disposed of by the concerned authorities.
Appeal allowed.
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2021 (5) TMI 1052
Levy of Compensation Cess - total quantity of raw coal or washed coal - coal rejects supplied by Coal Washery are exempt from levy of Compensation Cess once Compensation Cess on raw coal or, washed coal and coal rejects, as the case may be, is discharged, or not - whether subsequent supply (or sale) of coal rejects attracts Compensation Cess?
HELD THAT:- It is of paramount importance to analyze the relationship between the two parties involved under CMDA and the contractual arrangement between them. PKCL, the Applicant has entered into a contract for rendering mining services to RVUNL including washing of coal and the Applicant has, in turn, contracted the work of actual mining to AEL, who is the Mining Contractor. The mining contractor raises an invoice for mining services and discharges GST at the rate applicable to services, which is 18%. Thereafter, the Applicant, on a back to back basis, as per the CMDA with RVUNL, raises an invoice on RVUNL. The Applicant levies and collects 18% GST on the mining fee charged by it under the contract - As per the conditions envisaged under the contractual CMDA, between the Applicant and RVUNL, the Mining Contractor AEL not only undertakes mining, but has also been entrusted upon with the work of washing of the coal. Accordingly, once the mined raw coal is subjected to the process of washing, emergence of rejects is inevitable in the course of washing of raw coal.
There is no ambiguity as regards the fact that washed coal and coal rejects are two separate commercial products arising consequent to the process of washing of raw mined coal. It is also seen from the CMDA that both the parties involved viz.. Applicant and RVUNL Chhattisgarh have also separately recognized and dealt with washed coal and rejects in the said CMDA. RVUNL Chhattisgarh transfers washed coal to RVUNL Rajasthan. This is a supply under Section 7 of the CGST Act, 2017. RVUNL Chhattisgarh and RVUNL Rajasthan are distinct persons having separate GST registrations. Consequently, RVUNL Chhattisgarh, as required under law issues a taxable invoice in the name of RVUNL Rajasthan for the quantity of the washed coal supplied - it follows that the Applicant has a right to receive the coal rejects from RVUNL. It also follows from the said CMDA that RVUNL raises a tax invoice in favour of the Applicant for the rejects, to give effect to the above clause in the CMDA. Such tax invoice is evidence of transfer of property in the coal rejects from RVUNL to the Applicant, as contemplated in Clause 3.4.1 of the CMDA. The same constitutes a supply within the meaning of Section 7 of the CGST Act, 2017 on which GST as well as Compensation Cess has to be discharged by the supplier.
What is important is that the supplier of coal, which is RVUNL in the present case, has declared that they are paying the appropriate tax and cess on the total quantity of the coal raised / mined, through the mining services received by it from the said mining contractor - Sr. No. 41A of Notification no. 01/2017- Compensation Cess dated the 28th June, 2017 as amended vide Notification no. 02/2018-Compensation Cess (Rate) dated 26/07/2018, read with corrigendum issued under F.No.354/255/2018-TRU (Pt-11) dated 2/8/2018, effective from 27th July, 2018, in very unambiguous terms provides that NIL rate of Compensation Cess would apply only in the case of coal rejects supplied by a coal washery, arising out of coal on which Compensation Cess has been paid and no input tax credit of the Compensation Cess paid on coal is availed by any person. The expression 'arising out of would mean 'to originate from' or 'come into being' and the expression 'arise' has been defined in the Concise Oxford Dictionary to mean 'to occur as a result of'. In the facts and circumstances of the present case, the raw coal is the genus of which washed coal and reject coal are subsets. The reject coal arises on account of washing of the raw coal.
The coal rejects supplied by the Applicant should arise out of the raw coal mined and Compensation Cess on the entire quantity of raw coal mined as applicable has been paid and further that it would not be sufficient compliance of the conditions of Sr. No. 41A of Notification No. 1/2017-CC, if Compensation Cess has been paid only on the washed coal and not on the entire quantity of row coal raised /mined. Besides this for availing the said exemption, input tax credit on the compensation cess so paid on the said raw coal raised should also not be availed by any person.
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2021 (5) TMI 1044
Valuation of supply - water and electricity charges as well as the notional rent of the land, provided free of charge by BHEL CFFP to the applicant - to be included in the value of supply of oxygen gas by the applicant or not? - HELD THAT:- This authority has no doubt that Oxygen gas is emerged out as a new product by extracting it from the atmospheric air with the help of refrigerator, compressors, separators etc. and during this process electricity and water is constantly used.
It is categorically stated that value of supply is the transaction value i.e. the price actually paid or payable for the said supply of goods and the price is the sole consideration for the supply. Further, value of supply shall also include any amount that the supplier Is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both - consideration includes any payment whether in money or otherwise made or to be made or monetary value of any act or forbearance for the inducement of the supply of goods.
The value of supply is the price actually paid/payable and price is the sole consideration and consideration includes monetary value of any act or forbearance. In the instant case BHEL CFFP are providing rent free land and free electricity & water to the applicant and thus tolerating all the expenditure incurred on these free of cost items. Therefore, inputs provided free of cost by the recipient of resultant goods shall also form part of value of supply in view of Section 15(1) and Section 15(2)(b) of the Act as the cost of these inputs has to be paid by the supplier of goods but actually incurred by the recipient and this cost is also not include in the price actually paid/payable by the recipient - In the instant case also, BHEL CFFP are also providing rent free space alongwith free water & free electricity to the applicant for manufacturing & supply of Oxygen gas to them. The applicant has contended that the ownership of land, water and electricity remains with BHEL CFFP during all stages of the process till receipt of manufactured oxygen by it. In no circumstances, would the ownership of the said rent free space or water or electricity would pass on to the applicant. In such a case, all the said facilities provided by BHEL CFFP cannot be said to be a consideration for the applicant and thus, would not form part of the value of manufactured oxygen within the boundaries of Section 15(1) of the CGST Act.
The value of rent free space alongwith free water & free electricity will form part of value of oxygen supply.
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2021 (5) TMI 1016
Seeking grant of bail - HELD THAT:- Issue notice returnable on 30-7-2021. Dasti, in addition. Liberty to serve the Learned Standing Counsel for the respondent.
Let the petitioner be produced before the concerned Court within three days from today and the petitioner shall be released on interim bail on such terms and conditions as said Court may deem appropriate to impose.
List on 30-7-2021.
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2021 (5) TMI 996
Recovery of amount without of issuance of SCN - Section 74 of the CGST Act, 2017 - HELD THAT:- Issue notice of the writ petition as well as stay application, returnable within eight weeks - In the meanwhile, the goods lying with the respondent/s shall be released subject to submitting a surety bond of the equivalent amount of the value of the goods by the petitioner. The petitioner shall not be insisted for submitting the Bank guarantee.
List this case again in fourth week of July, 2021.
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2021 (5) TMI 994
Provisional attachment of Bank Accounts - HELD THAT:- Learned Senior Counsel appearing for the Petitioner seeks time to get instructions from the Petitioner in that regard.
Post the matter along with W.P. No. 2723 of 2021 on 12.05.2021.
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2021 (5) TMI 992
Reversal of locking the Input Tax Credit - operation of the appellate order, by which reversal is made - submission is that the Revisional Authority has passed the order impugned without application of mind, merely paraphrasing the words of the statute with no reference to the facts of the case, or other material on record to reach his conclusion in favour of passing an interim order of stay - violation of principles of natural justice.
HELD THAT:- The State shall clarify in its instruction the aforesaid fallacy urged on behalf of the petitioner.
Lay this matter as fresh again on 20.05.2021 before the appropriate Bench.
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2021 (5) TMI 982
Validity of order of Magistrate in which he has ordered for police investigation after taking cognizance - it is alleged that the Magistrate had the power to call for police investigation, but he had previously not taken cognizance of the offences - prime contention of the petitioner is that the Magistrate having previously taken cognizance of the offences, cannot revert to calling for police investigation - Non-payment of GST - HELD THAT:- The Magistrate had taken cognizance of the offences disclosed in the complaint. His action of perusal of the case record which led to his decision to examine the witnesses under Section 200 of Cr.P.C. at a later date clearly establishes application of mind on his part onthe allegations made in the complaint and which led to his making up his mind about the requirement of carrying out examination under Section 200 of Cr.P.C. Had the Magistrate perused the case records and was of the opinion that before deciding to take cognizance of the offence it was necessary to call for the police investigation, it was open for him to do so - The very fact that after perusal of the case record he was persuaded that there is a requirement of examination under Section 200 of Cr.P.C, would establish that he had already taken cognizance of the offence. It is well settled that the stage of examination of witness under Section 200 of Cr.P.C. would not arise before taking cognizance by the Magistrate. Thus, these two twin facts namely, the perusal of the case record by the Magistrate and the decision that he arrived on upon perusal of the case records of examining the witnesses under Section 200 of Cr.P.C. would leave no manner of doubt that on 27.11.2020 itself he had taken cognizance of the offences. It was thereafter not open for him to change the course and revert back to the initial option of requiring police investigation and calling for police report. - Unfortunately, on 02.01.2021 this is precisely what he did.
In the said order, he has recorded that after hearing the learned P.P. and after perusal of the complaint, he was of the opinion that before taking cognizance, the matter may be investigated by the police. In the process, the learned Magistrate lost sight of the fact that the stage of taking cognizance had already been crossed on 27.11.2020 itself.
This does not put an end to the complaint lodged before the concerned Magistrate, who shall proceed further in accordance with the law from the stage of taking cognizance of the offences disclosed - the impugned order dated 02.01.2021 is quashed - Petition allowed.
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2021 (5) TMI 980
Attachment of property - allegation against the petitioner company is that the petitioner company had fraudulently availed input tax credit on fictitious invoices to discharge the GST liability - petitioner submits that Section 67 cannot be against the future receivables so as to strangulate the entire business module of the petitioner - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Admittedly, an amount of ₹ 5.68 Crores, which was lying in the account has been appropriated till date. The petitioner has also agreed to remit another sum of ₹ 1 Crore. Thus, as against the proposed/estimated tax due involved i.e. ₹ 21 Crores, the petitioner has already discharged a sum of ₹ 5.68 Crores i.e. 27.05%. After all, there is a mechanism provided under the Act for proper adjudication of the tax due and determination under Sections 73 and 74 of the Act. Therefore, there is no meaning in attaching the bank accounts further - The respondents have reportedly commenced the investigation during October, 2020. The respondents can issue notice under Section 73 of the CGST Act, 2017 and thereafter, determine the amount due and recover the amounts.
The impugned attachment orders dated 12.01.2021 and 28.01.2021 are required to be interfered with - It is made clear that the attachment proceedings cannot be at the cost of right of provision under Article 19(1)(g) of the Constitution of India - the petitioner shall deposit a sum of ₹ 1 Crore within a period of one week from the date of receipt of a copy of this order, as was undertaken by the learned Senior Counsel for the petitioner. On such deposit of Rupees One Crore, the impugned attachment orders shall stand vacated - petition allowed.
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2021 (5) TMI 936
Refund claim of excess tax paid - time limitation - refund claims were liable to be rejected on the grounds hit by limitation of time limit as the appellant has filed refund claims after expiry of 2 years from the relevant dates - also the refund claim was filed in the category of excess payment of tax and excess payment of tax falls under the phrase “any other amount paid” as prescribed under sub-section (1) of Section 54 of the CGST Act, 2017 - HELD THAT:- It is clear from the provision of Section 54(1) that any application for refund for any amount paid under CGST Act, 2017 has to be filed within two years from the relevant date. In the instant case, relevant date is the date of filing of GSTR 3B return.
The appellant has never made any concerted efforts for rectification of errors made while filing their FORM GSTR-3B nor any corroborative evidence regarding the above has been provided whereas, sufficient period of time was made available to the appellant for rectification of errors through various circulars and guidelines issued from time to time. Moreover, in the present case, the appellant has confessed himself that the excess amount of tax has been paid inadvertently due to mistake of their staff and the mistake has been committed by the appellant himself not by the department. The adjudicating authority while passing the Orders in Original has taken the “relevant date” for refund claims i.e. the GSTR-3B filing date as per Section 54(1) of the CGST Act, 2017 for counting the limitation period of two year and on this basis the adjudicating authority has held that the refund claims filed by the appellant is barred by limitation. The refund claims were required to be filed within two years from the relevant date (i.e. the GSTR-3B filing date) but the appellant has failed to do so.
There are no reason to interfere in the impugned orders passed by the adjudicating authority - refund claims had been correctly rejected on the grounds as hit by limitation as per Section 54(1) of the CGST Act, 2017 - appeal dismissed.
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2021 (5) TMI 935
Detention of goods alongwith the conveyance - Quantity loaded in the conveyance found excess than the quantity mentioned in the invoice - HELD THAT:- It is found from the records that the quantity of goods in the conveyance found excess than the quantity mentioned in the invoice. Less quantity of goods shown in the invoice with intent to evade the GST and tried to escape from correct liability.
The contention of the appellant cannot be agreed with, that the measurement taken by the officers was wrong and unjustified and copy of calculation of quantity has not been served and the proceedings under Section 130 is wrong and illegal and only one fine i.e. on goods or conveyance can be imposed under the said section - it is clear that the impugned goods found excess i.e. quantity 3947 Sq. Ft on physical verification than the quantity mentioned in invoice were loaded intentionally to evade the GST. The excess quantity was supplied without declaring in the invoice with intent to evade the payment of tax therefore, the Section 130 of the Act was rightly invoked and the said section also provides for confiscation of goods or conveyance and find in lieu of confiscation.
The excess found goods were loaded intentionally to evade the payment of GST - Appeal dismissed - decided against appellant.
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2021 (5) TMI 934
Profiteering - supply of Services by way of admission to exhibition of cinematograph films where the price of admission ticket was one hundred rupees or less - despite the reduction in the rate of GST, the benefit had not been passed on - contravention of section 171 of CGST Act - HELD THAT:- The Central and the State Governments had reduced the rates of GST on “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was above one hundred rupees” from 28% to 18% and “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was one hundred rupees or less” from 18% to 12% w.e.f. 1-1-2019, vide Notification No. 27/2018-Central Tax (Rate), dated 31-12-2018, the benefit of which was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the above Act.
In this case, since the Respondent has increased the price of the movie tickets of the First and the Second class categories only in the month of May, 2019, this price increase cannot be correlated to provisions of Section 171 of the CGST Act, 2017. It is also a fact that the DGAP has reported that in the post-tax-rate reduction period, the Respondent has maintained the same base prices in respect of the Upper and Lower Balcony categories of movie tickets and hence, it is observed that there is no profiteering in the above category of these movie tickets. Therefore, though profiteering has been established against the Respondent in the categories of First class and Second class movie tickets, the computation of profiteering merits to be limited only up to 10-3-2019 as the Respondent had reduced the base prices commensurately for the First class and Second class movie tickets after 11-3-2019. No profiteering can thus arise for the period after 11-3-2019. Therefore, this case is a fit case for recomputation of the amount of profiteering - under the provisions of Rule 133(4) of the CGST Rules, 2017, this Authority directs the DGAP to recompute the amount of profiteering in line with the observations made in the preceding paragraph. The DGAP is further directed to furnish his Report under Rule 129(6) of the CGST Rules, 2017.
As per the provisions of Rule 133(1) of the CGST Rules, 2017 this order was required to be passed within a period of 6 months from the date of receipt of the Report from the DGAP under Rule 129(6) of the above Rules. Since the present Report has been received by this Authority on 30-10-2019 the order was to be passed on or before 29-4-2020. However, due to the prevalent pandemic of COVID-19 in the Country, this order could not be passed on or before the above date due to force majeure. Accordingly, this order is being passed today in terms of the Notification No. 65/2020-Central Tax, dated 1-9-2020 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Indirect Taxes & Customs under Section 168A of the CGST Act, 2017 - application disposed off.
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2021 (5) TMI 928
Grant of Bail - offence punishable under Sections 132 (1)(B) & (C) read with 132(1)(I) Central Goods & Service Tax (CGST) Act, 2017 - non-bailable and cognizable offence or not - HELD THAT:- The present bail application deserves to be allowed for the reasons; firstly, the maximum sentence provided for the alleged offence under the Act is 5 years; secondly, there is no apprehension, if any, shown by the respondent-department about the accused-petitioner of running away, or tempering or influencing the witnesses in any manner; thirdly, challan has already been presented in the court and due to ongoing Covid-19 problem, the trial is not proceeding; fourthly to show his bona fides the petitioner has already deposited Rupees One Crore Fifty Four Thousand with the department and lastly the petitioner is a 68 years old person and he is not required for any custodial interrogation/investigation.
Petitioner be admitted to regular bail subject to satisfaction of the trial Court - Petition allowed.
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2021 (5) TMI 885
Non-compliance with directions contained in order dated 05.04.2021, regarding remission of amount due - HELD THAT:- Having regard to the fact that there is a Coronavirus pandemic raging in the country, we are inclined to give a short accommodation to Ms. Malhotra, to place the petitioner’s difficulties on record, by way of an affidavit - In the meanwhile, Ms. Vibhooti Malhotra states that the petitioner, to show its bona fides, will remit ₹ 25,00,000 to the respondents, on or before 01.06.2021.
Application disposed off.
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2021 (5) TMI 884
Profiteering - Mr. Prakash’s say that, since Nirala Projects Pvt. Ltd. did not furnish the necessary details, the reconciliation exercise could not be carried out - HELD THAT:- Given the fact that two out of three entities have, it appears, passed on a substantial amount qua the purported profiteered amount, to their customers, the respondents will not, for the moment, subject the petitioners to coercive measures.
List the matters on 09.08.2021.
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2021 (5) TMI 878
Remission of balance due alongwith interest - HELD THAT:- Petition to be admitted subject to payment of amount in two installments.
Since the remittance involves an interest component, Mr. Aggarwala says that he would be able to inform us as to what would be the balance amount payable only after the instalment payable by the petitioner on or before 20.05.2021 is remitted.
Mr. Aggarwala is directed to indicate, on the next date of hearing, as to what would be the balance amount payable towards tax, after the instalment payable on or before 20.05.2021, is remitted by the petitioner - List the matter on 24.05.2021.
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2021 (5) TMI 813
Supply of services or deemed supply - Liaison office - applicant connects businesses in India with business partners in Dubai - intermediary - non-profit organization - requirement to obtain registration or not - levy of GST - HELD THAT:- While on one hand applicant has submitted that it is not undertaking any supply, on the other hand applicant accepts that it connects businesses in India with business partners in Dubai, which is nothing but supply of services. Thus the applicant acts as a conduit between some business partners in Dubai and certain businesses in India. It therefore appears that the applicant is acting as an intermediary in the subject case.
Intermediary - HELD THAT:- The applicant is satisfying all the conditions of an intermediary and there are no hesitation in holding that, the applicant is an intermediary. As per the provisions of Section 13 (8) of the IGST Act, 2017, we find that the place of supply in subject case of the applicant as an intermediary would be the location of the supplier of services i.e. the location of the applicant which is located in the State of Maharashtra, India.
Non-profit organization - HELD THAT:- From the website of Dubai Chamber, UAE, it is seen that they are providing various services for which fees are charged. Thus it is clear that the applicant’s Head Office appears to be a profit making organization, in which case the applicant cannot be considered as a non-profit making organization.
Supply or not - HELD THAT:- There is definitely, a supply of services by the applicant to various businesses in India and Dubai and such supply is done by the applicant as an intermediary - activities under taken by the DCCI is nothing but “Business”. The terms “Supply” and “Business” are defined under GST Act, in an inclusive manner and have wide connotations. Hence the reply filed by the applicant to cross objection is incorrect. Activities undertaken by the applicant are covered by the scope of word “Commerce”, “Business” and also covered under the scope of “Supply”.
The applicant connects businesses in India with business partners in Dubai. In other words applicant is providing services, to various business in India and Dubai. Hence, the facts of both the cited cases are different from the facts of the present case - the applicant is receiving consideration from its Head Office in excess of expenses incurred by it, we agree with the jurisdictional officer’s view that, the applicant cannot be treated as a non-profit organization. Also, the application is providing intermediary services for which it is liable to pay GST.
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2021 (5) TMI 811
Correction of mistake in the return - contention of the learned counsel for the petitioner is that certain mistakes have crept in at the time of filing the GSTR-1 in Form B2B, due to which the invoice had been reflected in column B2Chf though the petitioner had paid all taxes as and when they were due - HELD THAT:- Without entering into the merits of the claim of the petitioner, the present petition is being disposed of with a direction that the petitioner may file a fresh representation raising all his grievances before the competent authority which according to Sri Dhananjay Awasthi learned Advocate is Commissioner, CGST & Central Excise Jhansi Division, Jhansi.
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2021 (5) TMI 809
Confirmation of demand of GST with interest and penalty - Non filing of reply to Show Cause notice (SCN) - non-compliance of mandatory provisions of sub-section (4) of Section 75 of the CGST Act, 2017 - Opportunity of hearing - HELD THAT:- In the instant case, admittedly, proposing an adverse action, by way of a show cause notice, 1st respondent initiated action under the above provision of law. It is evident from a reading of the impugned order that on the ground that the petitioner herein failed to respond to the show cause notice by way of filing objections, 1st respondent herein confirmed the demand. When such a course of action is adopted by 1st respondent herein prejudicial to the interest of the assessee, the mandatory requirements of law as provided under sub-section (4) of Section 75 of the CGST Act, 2017 are required to be followed scrupulously.
In the considered opinion of this Court, is liable to be set aside not only on the ground of deviation from the mandatory provisions under sub-section (4) of Section 75 of the CGST Act, 2017 but also on the ground of violation of principles of natural justice - matter remanded to 1st respondent for consideration of the issue and for passing appropriate orders afresh after giving notice of hearing to the petitioner indicating the date and time of personal hearing - petition allowed by way of remand.
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2021 (5) TMI 772
Cancellation of registration of petitioner - validity of SCN - HELD THAT:- The record presently available shows that prior to the issuance of the aforesaid order, a show cause notice dated 05.01.2021 was served on the petitioner and the petitioner was called upon to file a reply to the same within seven working days from the date of service of the said notice - However, a perusal of the show cause notice shows that it is internally inconsistent.
Mr. Mahana says, the authorized representative of the petitioner had appeared before the concerned officer pursuant to service of the show cause notice dated 05.01.2021 - issue notice to the respondents via all permissible modes including email.
List the matter on 12.07.2021.
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