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GST - Case Laws
Showing 21 to 40 of 160 Records
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2021 (7) TMI 1288
Permission for withdrawal of petition - Seeking release of detenue - HELD THAT:- The counsel for the petitioner seeks and is granted permission to withdraw the petition.
Petition dismissed as withdrawn.
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2021 (7) TMI 1285
Seeking unconditional withdrawal of this application - HELD THAT:- Permission granted. Application is allowed to be withdrawn unconditionally and is disposed of as such.
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2021 (7) TMI 1257
Validity of three adjudication orders made passed exparte - challenge on account of the fact that for one tax period and for one dispute, there can only be a single adjudication order - HELD THAT:- Undisputedly, three periods for which the orders had been passed are overlapping. Notice dated 22.12.2020 was issued by respondent no.2 for the period July 2017 to March 2018. It covers the entire period and dispute being sought to be adjudicated in the other two notices as well.
At the same time, it is found that by notice dated 22.12.2020, next date fixed was 05.01.2021 but the petitioner could not participate in the same on account of the spread of pandemic COVID-19. Also, in that regard, it has been brought to our notice that realizing the difficulties from the spread of pandemic COVID-19, the Government had itself issued an order dated 01.05.2021 extending the period to submit reply and responses, up to 30.05.2021. Subsequently, it was extended up to 30.06.2021. In light of that fact, the order dated 09.06.2021 is clearly an ex-parte order, which has been passed without allowing due opportunity of hearing to the petitioner.
Orders quashed - Matters restored back.
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2021 (7) TMI 1254
Cancellation of bail granted - allegations of tempering of evidence and influencing the witnesses - fake and non-existing firm - HELD THAT:- It is trite law that considerations relevant at the time of grant of bail are different than the considerations at the time of cancellation of bail after the accused has remained in custody. Admittedly, the investigation had started in the year 2018 and was continuing when the petitioner was arrested on 9th February, 2021 and was granted bail on 9th March, 2021 - It may be noted that the petitioner was already in custody and despite having been granted bail on 9th March, 2021 till date complaint has not been filed and in case the petitioner was in custody in the event of the complaint not being filed in 60 days, he would have been entitled to default bail.
The finding of the learned CMM was that the investigation qua the petitioner was almost complete. There is no averment of the respondent that any further recovery is required to be made from the petitioner. In case other offenders are evading arrest, the same cannot be a ground to cancel the bail granted to the petitioner.
Till the next date of hearing, the operation of the impugned order dated 17th July, 2021 is stayed and the NBWs issued against the petitioner are kept in abeyance - List on 7th September, 2021.
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2021 (7) TMI 1253
Maintainability of appeal - pre-condition for filing the appeal - Demand of tax of ₹ 1,89,810 and equivalent amount of penalty imposed in the penalty order - HELD THAT:- Identical issues have been raised in M/S ABHISHEK SALES VERSUS STATE OF U.P. AND 2 OTHERS [2020 (1) TMI 515 - ALLAHABAD HIGH COURT] has proceeded to direct the petitioner to deposit 20% of the remaining amount of tax in dispute in accordance with Section 112 (8) of the Act within three weeks from the date of order and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the writ petition.
All the respondents are granted eight weeks' time to file counter affidavit on behalf of State respondents. The rejoinder affidavit, if any, may be filed within one week thereafter. List thereafter - it is directed that the petitioner shall deposit 20% of the remaining amount of tax in dispute in accordance with Section 112 (8) of the Act within four weeks from today and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the instant petition.
Application disposed off.
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2021 (7) TMI 1214
Refund of ITC - ITC accumulated due to Invented Tax Structure - denial on the ground that the seller has not remitted tax with the appropriate State/Central Government authorities and disclosed in his GSTR-1 Return - HELD THAT:- On going through the submission of appellant and RFD-06 I find that the out of total amount of refund of ₹ 9,54,051/- only ₹ 6,27,004/- have been sanctioned by the adjudicating authority.
The adjudicating authority has accordingly processed the refund application and sanctioned the refund amount ₹ 6,27,004/- under Section 54 of the CGST Act, 2017. Further, he also mentioned in the remark that assessee requested to refund the pending sum of ₹ 6,27,004/- hence RFD-06 is being issued, and in column of RFD-06 “Wrong ITC Claim” ₹ 3,27,047/- (State/UT Tax) has been entered by him - the appellant has stated in appeal memo that due to the lockdown period he was under financial crisis accordingly he submitted their written intimation in Form of GST RFD-09 and RFD-06 was issued without providing him any personal hearing and out of total amount of refund ₹ 9,54,051/- only ₹ 6,27,004/- was paid to him.
It would be appropriate to remand back the case to the adjudicating authority to examine the eligibility of ITC in detail and consequently the refund claim of the appellant up to the extent of remaining amount of refund which were not sanctioned. Further, to follow the principle of natural justice by being heard to him and pass the speaking order accordingly - appeal allowed by way of remand.
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2021 (7) TMI 1213
Refund of IGST - IGST was paid inadvertently instead of CGST and SGST - refund claim of excess paid CGST - rejection of refund on the ground of time limitation - it is also alleged that reply to SCN does not address the issue of delay in filing refund application - period July, 2017 to March, 2018 - Section 54 of CGST Act, 2017 - principles of natural justice - HELD THAT:- Despite the submission of written reply, adjudicating authority has passed the Orders-in-Original all dated 23-4-2020 wherein he has rejected the refund claims without granting any opportunity of personal hearing to the appellant. Moreover, adjudicating authority did not consider appellant’s request for adjournment of personal hearing until COVID-19 is eased. Thus, it is found that the appellant did not avail the opportunity of personal hearing in the matter.
The adjudicating authority while rejecting the refund claims of the appellant neither considered their defence submission/reply nor first request for seeking adjournment of personal hearing due to COVID-19 lockdown. Moreover, the adjudicating authority did not discuss any provisions of law/rules and method on the issue of time barred on which basis the refund claims become time barred - also, passing of non-speaking order indeed amount to denial of natural justice.
Before passing of orders the request for seeking adjournment for personal hearing in the matter should have been considered and 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 should have been discussed - case remanded to the adjudicating authority for decide the case afresh by following the principle of natural justice and for passing the speaking order in view of submission of appellant - appeal allowed by way of remand.
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2021 (7) TMI 1212
Rectification of Mistake - typographical error - error apparent on the face of record or not - HELD THAT:- On perusal of the impugned order, it is noticed that such typographical error has indeed occurred in para No.4.1 and 4.2 and needs correction. “Therefore, this corrigendum order is issued, to correct the above mentioned error.
Appeal disposed off.
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2021 (7) TMI 1211
Levy of GST - Forward supply - rate of GST - Tertiary Treated Water supplied by the applicant to Maharashtra State Electricity Generating Co. Ltd. (MAHAGENCO) - falling under Entry No. 99 of N/N. 02/2017-Central Tax (Rate), dt. 28-06-2017 or Entry No. 24 of N/N. 1/2017-Central Tax (Rate) dt. 28.06.2017 - HELD THAT:- As per the parameters tested by the applicant, the properties of processed water generated from the sewage is different than the properties of the original sewage water received in the STP plant. Therefore, the Tertiary Treated Water is purified sewage water and since it is purified water. the same will not fall under Sr. No, 99 of Notification 02/2017-C.T. (Rale) dated 28.06.2017. Since the said entry at Sr. No. 99 mentions that water, other than purified, aerated, mineral, distilled, medicinal, ionic, battery. de-mineralized and water sold in sealed container, only will get exemption, therefore the impugned product being purified sewage water will not be exempted - the legislation does not expect, such purified water to be allowed for exemption from GST.
In the subject case, the water supplied by the applicant to mahagenco is obtained after the treatment to sewage water as submitted by the applicant and the said water is not potable. Hence Entry No. 46 B which pertains to drinking water only is not applicable to the impugned product - TTW supplied by the applicant is “purified Water” and is covered Entry No.24 of Notification No. 01/2017-C.T. (Rate) dated 28.6.2017.
The impugned goods, called as Tertiary Treated Water, is purified water which is sold to MAHACENCO for its further industrial use and falls under Entry No. 24 of Notification No. 01/2017 - the water obtained from sewage is covered under term “waters”. Hence it is taxable and same would be taxable @ 18% IGST under Entry 24 of Schedule-Ill of Notification No. 1/2017-Central Tax (Rate) dtd. 28.06. 2017 as amended by Notification No. 06/2018 and Central Tax (Rate) dtd. 25.01.2018.
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2021 (7) TMI 1210
Seizure and detention of vehicle - Ambulance van - detention on the ground that the vehicles did not carry e-way bills - case of the petitioner is that the vehicles are purchased not for resale but for the own use and business purpose of the petitioner and in which case, there was no necessity of regenerating an e-way bill - HELD THAT:- When the respondent No.3 has issued a show cause notice for completing the assessment for levying tax with or without penalty, let the petitioner file reply to such show cause notices. It would be open for the Assessing Officer to carry out the assessment, in accordance with law, after considering the reply of the petitioner. However, considering the prime defence of the petitioner that he is not a registered dealer nor is he dealing in purchase and sale of vehicles and the ambulances have been purchased by the petitioner only for its own use and purpose since the petitioner wants to start a business of proving ambulance service, it would not be appropriate to allow further detention of the vehicles.
It would be open for the petitioner to file reply to the show cause notices dated 21st July 2021 by 10th August 2021 - Petition disposed off.
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2021 (7) TMI 1166
Refund claim - time limitation - whether the refund application filed by the appellant is time barred by the period of limitations in terms of Section 54 of the CGST Act, 2017? - HELD THAT:- The instant refund application was filed by the appellant on the ground of excess tax payment made by him and it was arised due to not reporting of credit note in GSTR-3B mistakenly and wrongly/erroneously paid the tax on cancelled invoices during the period 2017-18 by filing of GSTR-3B - other remedies are available in the Section 34(2) and Section 39(9) of CGST Act, 2017 but the appellant failed to opt the same and applied the instant refund application on 15-5-2020. The refund application has been rejected by the adjudicating authority by the impugned order on being time barred issue in terms of Section 54 of CGST Act, 2017.
There is a settled law that if the statutory provisions are available in the relevant Act, there is no need to draw the inference by applying/interpreting the other statutory provision. In the instant matter the appellant has taken incorrectly recourse of Limitation Act or other Laws by placing reliance of it. The appellant’s contention that the relevant date should be taken in the instant case as the date of filing of annual return is not correct/acceptable - In the instant case the appellant filed the refund application on 15-5-2020 for the tax period July, 2017 to March, 2018 which is clearly beyond the two years from the relevant date.
The refund claim pertaining to the month of February, 2018 to March, 2018 cannot be disputed on barred by the limitation and contended that the time limit has been extended to 31-8-2020 in terms of Notification No. 35/2020-Central Tax, dated 3-4-2020 as amended by Notification No. 55/2020-Central Tax, dated 27-6-2020 - the appellant did not clarify the date of payment of tax for the month of February, 2018 in the said submission and there is no disputed amount mentioned for the month of March, 2018.
The refund application of the appellant is barred by the time limitation in terms of Section 54 of CGST Act, 2017 - Appeal dismissed.
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2021 (7) TMI 1165
Refund of Input Tax Credit - credit accumulated due to Inverted Tax Structure - time limitation - period July, 2017 to March, 2018 - whether application of refund filed by the appellant is time barred as per Section 54 of CGST Act, 2017 as amended, or not? - HELD THAT:- The due date for filing of refund application for remaining period i.e. for the month of Mar., 2018, has been extended upto 31-8-2020, in terms of the CGST Notification No. 55/2020-Central Tax, dated 27-6-2020 - it is obvious that refund application for the period July, 2017 to February, 2018 is time barred as the same was filed on 13-6-2020. Whereas, the refund application for the month of Mar., 2018 falls within time limits.
Whether refund claim for the tax period of March, 2018 is inadmissible or not? - HELD THAT:- The adjudicating authority has rejected the refund for the period of March, 2018, as mentioned inadmissible since the refund amount works out to negative figures as per Rule 89(5) of the CGST Rules, 2017. Thus the adjudicating authority has correctly rejected the refund for the month of March, 2018 by applying the formulae as provided in Rule 89(5) of the CGST Rules, 2017.
Whether principle of natural justice has been followed in the instant case or not? - HELD THAT:- The adjudicating authority had issued Show Cause Notice in form of RFD-08 to the appellant, also provided opportunity for ‘personal hearing’. However, the appellant neither attended the same on the stipulated day nor filed any reply of the same. Further, the appellant wished to clarify the issue from the adjudicating authority/proper officer through letter via e-mail and the adjudicating authority properly replied to the appellant - there are no merit in the contention of the appellant.
Appeal dismissed - decided against appellant.
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2021 (7) TMI 1164
Refund claim - zero-rated supplies - appellant did not furnish the DRC-03 as required in case where the refund is applied again after issuance of deficiency memo - sufficient opportunity of being heard not provided - HELD THAT:- The appellant has filed Refund for ₹ 7,35,253/- for which deficiency memo No. ZW0801200310312 was issued stating that supporting documents attached are incomplete. The appellant filed afresh ARN Receipt AA080120043271Y (GST RFD-01), dated 28-1-2020 for ₹ 7,62,291/- for which the show cause notice No. ZO0802200237580 (RFD-08) was issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur on 19-2-2020 and served the same through Common Portal.
The appellant only received the e-mail dated 26-2-2020 stating that ‘This mail is in reference to the AA080120043271Y; 26-2-2020 filed by you. Sanction Order RFD-06/ZY0802200326224/26-2-2020 has been issued for above mentioned refund application.’ And has not received the refund order i.e. RFD-06 (ZY0802200326224, dated 26-2-2020) issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur - it is deduced that the appellant was neither received the Show cause notice (RFD-08) in appropriate manner nor got the opportunity of being heard to put their submission before the proper officer.
The Proper Officer while passing the refund order of the appellant neither considered their defence submission/reply nor granted the opportunity of personal hearing - matter remanded with the direction to make necessary verification regarding the correctness of the averment of the appellant - appeal allowed by way of remand.
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2021 (7) TMI 1161
Maintainability of petition - Validity of SCN - SCN asking the petitioner to submit their reply within 30 days - HELD THAT:- The power of judicial review is to scrutinise the processes through which the jurisdiction is taken by the competent authorities in consonance with the law, but not the decision itself. Thus, the Courts always exercise restraint in entertaining a Writ Petition filed against the show cause notices.
In the present case, the impugned show cause notice provides all the details regarding allegations. The petitioner is asked to submit their representations/defence or documents to defend their case by availing the opportunity. Therefore, the petitioner is expected to defend their case before the competent authority by submitting their explanations/defence statements and thereafter, the authorities are bound to consider the materials available on record as well as the grounds raised by the petitioner in their defence statement and take a decision and pass speaking order by furnishing reasons for such a decision
This Court is of the considered opinion that the writ petitioner has not established any acceptable ground for the purpose of entertaining the Writ Petition - Petition dismissed.
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2021 (7) TMI 1159
Interest on delayed payment of tax - Section 50 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner submitted a representation to the first respondent on 03.11.2020, which is yet to be disposed of and such representation is entertainable under the provisions of the Act and the Authorities Competent is duty bound to dispose of the same on merits and in accordance with law.
The first respondent is directed to consider the representation submitted by the petitioner on 03.11.2020 and pass an order on merits and in accordance with law and by affording an opportunity to the writ petitioner, as expeditiously as possible, preferably within a period of twelve weeks from the date of receipt of a copy of this order - Petition disposed off.
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2021 (7) TMI 1158
Detention of motor vehicle - RANGE ROVER motor vehicle transported from Coimbatore to Thiruvananthapuram as 'used personal effect' of the 2nd respondent - detention on the ground that the same was transported without the E-way bill - requirement of e-way bill for personal effect goods - Rule 138 of the Kerala Goods and Service Tax Rules, 2017 - HELD THAT:- It must be remembered that goods that are classifiable as used personal and household effect falls under Rule 138(14) (a) of the Kerala Goods and Services Tax Rules, 2017 and are exempted from the requirement of e-way bill. The 2nd respondent had purchased the vehicle after payment of IGST. A temporary registration was also taken apart from the motor vehicle insurance.
The decision in the case of KUN MOTOR CO. PVT. LTD. AND VISHNU MOHAN VERSUS THE ASST. STATE TAX OFFICER, SQUAD NO. III, KERALA STATE GST DEPARTMENT AND STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, THIRUVANANTHAPURAM [2018 (12) TMI 531 - KERALA HIGH COURT] held that used vehicles, even if it has run only negligible distances are to be categorized as 'used personal effects' - the facts in the present appeal is similar if not almost identical to the facts in the above referred decision, except for the change in place from Puthuchery to Coimbatore.
Appeal dismissed.
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2021 (7) TMI 1147
Release of seized goods - levy of penalty - penalty levied although the matter is yet to be settled finally - goods are properly obtained through legitimate means or not - HELD THAT:- This Court having heard learned counsel for the parties and also on perusal of the materials on record, is of the view that it is the mandate of law that at the time of release, not only the value of the goods but also the penalty as may be payable as per the authorities are liable to be paid for which the owner of the goods may have to execute a bond with security thereof and, as such, in the present case, directing the applicants to execute bond and furnishing Bank Guarantee of the amount mentioned in the said communication cannot be said to be beyond the purview of law.
The applicants shall execute a bond and furnish Bank Guarantee in respect of the amount mentioned in the communication - Application allowed.
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2021 (7) TMI 1145
Violation of principles of natural justice - opportunity of personal hearing not provided - specific case of the petitioner is that while settling the bill amounts received, departments had in fact deducted the tax payable - HELD THAT:- The petitioner's place of business was inspected by the enforcement wing officials on 10.09.2020. Based on the same, show cause notice was issued on 20.10.2020. The petitioner submitted his reply dated 24.12.2020. However, without granting an opportunity of personal hearing, the impugned orders were straightaway passed. This is on the face of it as violative of Section 75(4) of the Tamil Nadu Goods and Services Tax Act, 2017.
The matter is remitted to the file of the respondent to pass orders afresh in accordance with law - petition allowed by way of remand.
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2021 (7) TMI 1116
Refund on account of Assessment/Provisional Assessment/Appeal/Any other Order through portal - refund rejected on the ground that the taxpayer has wrongly filed the refund claim in the category of appeals as there was no amount deposited by the taxpayer while filing the appeal against the MOV-09, dated 16-9-2019 - HELD THAT:- It is found that RFD-01, dated 22-6-2020 was filed with Division for refund of IGST @ 18% and penalty of equivalent amount i.e. ₹ 7,50,618/- deposited in pursuance to appeal allowed by Commissioner (Appeals)-II, State Tax, Haridwar - Further, the appellant has deposited ₹ 7,50,618/- to the Electronic Cash Ledger vide Reference No. 201909160845602, dated 16-9-2019 but had not discharged his liability towards tax and penalty payable under the Act by debiting the electronic cash ledger in consonance to Section 49(3) of the CGST Act, 2017. Consequently, the same amount was available in his Electronic Cash Ledger for use.
The proper officer i.e. the Assistant Commissioner, CGST Division, Bhiwadi has precisely rejected the refund claim that the taxpayer has wrongly filed the refund claim in the category of appeals as there was no amount deposited by the taxpayer while filing the appeal against the MOV-09, dated 16-9-2019.
The appellant stated that show cause notice was issued without mentioning DIN No. upon it and as per Circular No. 128/47/2019-GST, dated 23rd December, 2019, generation and quoting DIN on any communication issued by CBIC to taxpayers including emails is mandatory with an objective to bring more transparency and accountability, hence this show cause notice seems to be invalid and to be treated as void ab initio since it is issued without DIN - Appeal disposed off.
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2021 (7) TMI 1115
Erroneous sanction of refund - export of services - SCN alleged that the period for which the refund claimed is May, 2018, whereas, the relevant payment was received only on 29-1-2019 which did not fall in the range of the relevant period - time limitation - HELD THAT:- In the case on hand the appellant has exported service through invoice dated 31-5-2018. The respondent had, after sanctioning provisional refund, chosen to allege that the refund sanctioned was erroneous and consequently the same is liable for recovery along with applicable interest and penalty under Section 73(1) of CGST Act, 2017 read with Section 54 of CGST Act, 2017. This allegation levelled in the notice to Show Cause (SCN) seamlessly culminated into the impugned Order, as the appellant neither replied to the notice nor appeared for the hearing, holding that the refund was erroneously sanctioned and therefore amount refunded is liable for recovery with applicable interest and penalty.
Since the claim has been admittedly filed for the ‘period’ May, 2018, the ‘relevant period’ in this case has to be considered as May, 2018. In this regard it is found that the respondent on the logic that since the proceeds in foreign currency for the exports made in the month of May, 2018 has been received only during January, 2019, has come to the conclusion that no proceeds in foreign currency has been received in the month of May, 2018 and therefore determined the ‘turnover of zero rated supply of services’ as zero and thereby amount eligible for sanction is also zero.
It is found from the SCN that the respondent has given fifteen days time for the appellant to reply to the SCN and also granted hearing on 27-1-2020. The respondent though seems to have apparently fulfilled the tenets of principles of natural justice; the fact that cannot be denied is that the impugned Order has not emerged as a culmination of a complete and robust judicial process - It is an established Law that an adverse Order seeking to impose a demand shall not be passed without considering the contra stand of the aggrieved.
The respondent are directed to pass afresh a speaking Order on merits after scrupulously adhering to the principles of natural justice by giving an opportunity to the appellant - petition dismissed.
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