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GST - Case Laws
Showing 1 to 20 of 1928 Records
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2022 (12) TMI 1503 - ANDHRA PRADESH HIGH COURT
Challenge to impugned Assessment cum penalty cum Interest Order - violative of the principles of natural justice - HELD THAT:- Having found that the petitioner filed this writ petition against the impugned assessment order without availing the alternative remedy available to him, without expressing the views on the merits of the case, the writ petition is disposed off affording opportunity to the petitioner to approach the appellate authority.
The Writ Petition is disposed of.
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2022 (12) TMI 1496 - CALCUTTA HIGH COURT
Interest u/s 50 of the WBGST Act, 2017 - interest levied on the ground that the petitioner has wrongly claimed ITC under the WBGST Act, 2017 and in the same communication it has been recorded that petitioner has made payment voluntarily in DRC 3 for the said amount as per provisions of Section 73(5) of the WBGST Act, 2017 - HELD THAT:- In the present case admittedly it has not been utilized and it has been reversed and as such petitioner is not liable to pay interest in view of the amended provisions of Section 50 sub-section (3) of the said Act substituted by Finance Act, 2022 with retrospective effect from 1st July, 2017.
Considering the facts and circumstances of this case and legal position and submission of the parties and particularly taking into consideration the substituted provisions of Section 50(3) of the WBGST/CGST Act, 2017, the petitioner is not liable to pay interest as per impugned communication dated 2nd May, 2018 and as per the view taken by this Court, all legal consequences will follow.
Petition disposed off.
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2022 (12) TMI 1454 - COMMISSIONER (APPEALS) PANCHKULA
Refund of IGST - Rejection on the ground that Appellant had not made any excess payment of GST in the instant case - time limitation - rejection also on the ground that refund claim had been filed beyond the prescribed period of 2 years and hence, the same was time barred.
Whether the refund application dated 08.09.2021 is time barred or not? - HELD THAT:- The refund to be filed in terms of the provisions contained in Section 54 of CGST Act, 2017 which provides that any person claiming refund of any tax and interest, if any, paid on such tax any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. Further, Clause (e) to Explanation 2 of Section 54 defines "relevant date" for the purpose of filing refund application under inverted duty structure as the due date for furnishing of return under section 39 for the period in which such claim for refund arises. The adjudicating authority has calculated the relevant date in accordance with law and the refund application filed by the appellant was beyond the prescribed time limit.
Hon'ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] has extended the period of limitation excluding the period from 15.03.2020 to 28.02.2022 (lockdown period) - during pendency of this appeal before this office, CBIC vide Notification No. 13/2022-Central Tax dated 05.07.2022 has excluded the period from 01.03.2020 to 28.02.2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act.
Thus, refund application in the present case has been filed on 08.09.2021 is within time extended by the Hon'ble Apex Court and CBIC. And the order of the adjudicating authority is liable to be set aside.
Whether the party has paid excess payment, which has to be refunded or not? - HELD THAT:- The adjudicating authority held that there appears to be no excess payment made by the party. The adjudicating authority did not mention any valid justification about the decision made that "there appears to be no excess payment". The same reply has been submitted by the Assistant Commissioner, CGST Division Panchkula, vide its letter dated 17.10.2022 - thus, neither any calculation any reconciliation has been provided with the O-I-O dated 26.10.2021 - the appellant has paid an amount of Rs. 74,423/- under reverse charge on account of Ocean Freight. The entry of the said amount has been duly made in the Electric Credit Ledger on dated 18.04.2022. The appellant vide their explanation letter dated 17.11.2022 clarified that out of 74,423/-, Rs. 41,870/- was paid through Challan dated 18.04.2019 and balance amount of 32,553/- was paid vide cash deposited in the form of TCS.
The levy of IGST on struck down by Supreme Court in case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT], on the grounds that such levy created a double taxation and is violation of principles of composite supply under Section 2 (30) read with section 8 of the CGST Act. The payment made against the Entry ID of the Notification No. 10/2017 — Integrated Tax (Rate) dated 28th June 2017, was not required to pay by the appellant, hence the amount so paid Rs. 74,423/- (reverse charge), is available to be refunded to the appellant.
Refund allowed - appeal allowed,
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2022 (12) TMI 1451 - PATNA HIGH COURT
Principles of Natural Justice - ex-parte order - fair opportunity of hearing not provided - SCN not issued - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. This is for two reasons- (a) violation of principles of natural justice, i.e. fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
The impugned order set aside - petition disposed off.
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2022 (12) TMI 1449 - AUTHORITY FOR ADVANCE RULINGS GUJARAT
Exemption from GST - Treated Water obtained from CETP - Sl. No. 99 of the Exemption Notification No. 02/2017-Integrated Tax (Rate), dated 28-06-2017 - taxable at 18 per cent by virtue of Sl. No. 24 of Schedule - III of Notification No. 01/2017-Integrated Tax (Rate), dated 28-6-2017 or not.
HELD THAT:- The intention of the legislature to exempt the water was very clear that any type of water which is usually consumed/drink by the public at large of this country should not be taxed. To meet such objective GST Council has provided exemption under the Entry No. 99 of Not. No. 2/2017-CT (Rate) to Water which is free from all types of impurities supplied in cities and villages across the country either through tap or tanker, water cooler and water tap installed at various places across the country. Whereas aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized and water sold in sealed container is not eligible for exemption from payment of GST under the said entry. This clearly shows the intention of the legislature that any type of water which are being sold in terms of commercial purpose have been kept out of the purview of exemption as provided under entry No. 99 of the Notification.
The treated water obtained from CETP do not cover under the category of 'purified water' then what type of treated water would be i.e. whether cover under the category of aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized water.
It can be concluded that after undergoing out all the process treated water obtained from CETP have micro amount of dissolved minerals and chemical and virtually free from all types of toxic materials. This treated water is used in the various industries viz. Pharmaceuticals, chemicals and leather industries for their manufacturing related process. Looking to the presence of small amount of metal and water obtained after treatment from CETP is covered under 'de-mineralize water'. Hence, the treated water obtained from CETP is not eligible for exemption under Sr. No. 99 of Notification No. 12/2017-CT (Rate) dated 28-6-2017.
The 'Treated Water' obtained from CETP (classifiable under Chapter 2201) is taxable at 18 per cent by virtue of Sl. No. 24 of Schedule - III of Notification No. 01/2017 - Integrated Tax (Rate), dated 28-6-2017 (as amended) as Waters, including natural or artificial mineral waters, and aerated waters, not containing added sugar or other sweetening matter nor flavoured (other than Drinking water packed in 20 liters bottles)'.
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2022 (12) TMI 1417 - CALCUTTA HIGH COURT
Alleged detention of the vehicle and excavator - inaction on the part of the respondent WBGST authority concerned in not considering the case made out by the petitioner - Petitioner submits that he is suffering from huge financial loss everyday because of such detention of the vehicle and excavator in question - HELD THAT:- Considering the facts and circumstances of this case and submission of the parties this writ petition is disposed of by directing the respondent authority concerned to consider and dispose of the aforesaid representation by taking a decision in accordance with law and by passing a reasoned and speaking order after giving an opportunity of hearing to the petitioner or his authorised representative within 16th December, 2022 positively.
Petition disposed off.
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2022 (12) TMI 1409 - CALCUTTA HIGH COURT
Maintainability of appeal - appeal dismissed on the ground of delay of more than four months in addition to the period granted by the judgment of the Hon’ble Supreme Court during the COVID period - HELD THAT:- There is no cogent and proper explanation of delay in filing the appeal of more than 200 days. The medical documents, the petitioner has annexed, are self-contradictory. Prescription annexed has been issued by one doctor, medical certificate has been given by another doctor who is a general practitioner and diagonised that petitioner was suffering from pulmonary disease while the prescription annexed shows that the petitioner was suffering from skin diseases and such prescription has been issued by the Dermatologist.
Petition dismissed.
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2022 (12) TMI 1407 - RAJASTHAN HIGH COURT
Seeking grant of bail - availment of fraudulent input tax credit - evasion of tax - HELD THAT:- It is an admitted position that petitioners had evaded the tax and got the benefit of input tax credit of Rs. 11.30 Crores. Hon’ble Apex Court while granting the bail to Vinay Kant Ameta directed to him to deposit Rs. 200 Crores.
Considering the contentions put-forth by the counsel for the petitioners and taking into account the facts and circumstances of the case and without expressing any opinion on the merits of the case, this court deems it just and proper to enlarge the petitioners on bail with a condition to deposit Rs. 2 Crores each by the petitioners before the respondent Department as under protest.
The bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners Saurabh Jindal S/o Shri Satyendra Kumar and Yashik Jindal S/o Shri Mahadev Jindal shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs. 50,000/- with two sureties of Rs. 25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.
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2022 (12) TMI 1372 - MADRAS HIGH COURT
Interest on delayed payment vide Section 50(1) of Central Goods and Services Act, 2017 - HELD THAT:- In the case on hand, Revenue has pegged interest at Rs.8,29,955/-, but it is disputed by the petitioner-assessee.
The following order is passed:
a) Writ petitioner to demonstrate to the satisfaction of Respondents 1 and 2 undisputed payments (if any) within three weeks from today i.e., on or before 29.12.2022;
b) On demonstration to the satisfaction of respondents 1 and 2 (as above), the impugned notice will stand set aside;
c) If the aforesaid demonstration is not made on or before 29.12.2022, the writ petition will stand dismissed and the impugned notice will continue to operate without any reference to this Court.
Petition disposed off.
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2022 (12) TMI 1371 - CALCUTTA HIGH COURT
Validity of SCN - petitioner challenges the legality of the notices, on the ground that the authority while issuing the impugned notice has already made up their mind and that on the similar issue earlier central authority has already dropped the proceeding - HELD THAT:- This writ petition is premature since the petitioner has not replied to the impugned showcause notices and it is its mere apprehension that if it files the objection that will not be considered by the authority who issued the impugned show-cause notices. It is a well settled principle of law that against the show-cause notices, writ court should be very reluctant to interfere unless the authority who issued the show-cause notices having inherent lack of jurisdiction or the notice is patently contrary to law. Petitioner will have ample opportunity to raise all the points in its objection to the impugned show-cause notices and will have also opportunity of personal hearing before the authority but still petitioner does not want to avail this opportunity and seeks to invoke constitutional writ jurisdiction of this Court.
By a decision of the three Judges’ Bench of the Hon’ble Supreme Court in the case of INDO ASAHI GLASS CO. LTD. AND ANOTHER VERSUS INCOME TAX OFFICER AND OTHERS [2001 (9) TMI 5 - SUPREME COURT] where it has been held that the appropriate recourse against a show cause notice is to file a reply to the same and to take whatever defence is open to the petitioner.
This writ petition is not entertained by holding that the same as premature and on the ground of alternative remedy - petition dismissed.
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2022 (12) TMI 1370 - KERALA HIGH COURT
Cancellation of registration granted to the petitioner - failure to file returns for a continuous period of six months - Validity of SCN issued - HELD THAT:- This writ petition is liable to be allowed. The show cause notice issued to the petitioner in this case is produced as Ext.P1. A perusal of Ext.P1 shows that the same has been issued in Form GST Reg 31, which is the form for issuing a notice regarding suspension of registration - The notice is absolutely vague and it is not clearly specified with any clarity, the reasons for proposing cancellation even the period for which there was alleged failure to file returns is not specified.
The quashing of the impugned order of cancellation will not have the effect of absolving the petitioner of any fiscal liability. The petitioner will be required to file all defaulted returns together with tax, late fee, interest, penalty etc., within a period of two weeks from the date on which the registration of the petitioner is restored in compliance with this judgment - Petition allowed.
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2022 (12) TMI 1369 - TELANGANA HIGH COURT
Provisional attachment of bank account of the petitioner - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- By its very nature, provisional attachment cannot be for an indefinite period. Dictionary meaning of provisional is ‘arranged or existing for the present, possible to be changed later’; Black’s Law Dictionary, eighth edition, has defined it as ‘temporary’ or ‘conditional’. The two words ‘provisional’ and ‘attachment’ read in conjunction can only mean a ‘temporary attachment’.
To ensure that the valuable right of a taxable person is not infringed for an indefinite period, legislature itself has provided for a definite time line in sub-section (2) of Section 83 of the CGST Act mandating that a provisional attachment order would have a life span of only one year from the date of the order made under sub-section (1). After expiry of a period of one year, such provisional attachment would cease to have effect - it is evident that both the provisional attachment orders dated 02.12.2019 and 08.12.2021 have spent their force. Such provisional attachment orders cannot therefore be allowed to continue beyond the period prescribed under the statute.
The provisional attachment orders dated 02.12.2019 and 08.12.2021 passed by respondent No.2 are hereby set aside and quashed - petition allowed.
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2022 (12) TMI 1368 - TELANGANA HIGH COURT
Cancellation of registration of petitioner - HELD THAT:- As the issue pertains to cancellation of GST registration of the petitioner, it would be just and proper if one more opportunity is granted to the petitioner.
The order of respondent No.3 dated 29.12.2020 as well as the order-in-appeal dated 25.10.2022 passed by respondent No.2 is set aside - matter remanded back to the file of respondent No.3 to consider the matter afresh and thereafter pass an appropriate order in accordance with law after giving due opportunity of hearing to the petitioner - petition allowed by way of remand.
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2022 (12) TMI 1367 - MADRAS HIGH COURT
Cancellation of the Registration Certificate of petitioner - failure to file Goods and Services Tax monthly returns - HELD THAT:- This Court has been consistently following the directions issued in the case of TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR. [2022 (2) TMI 933 - MADRAS HIGH COURT] and the Revenue/Department has also accepted the said view as evident from the fact that no appeal has been filed in any of the matters, this Court intends to follow the above order of this Court.
This Court feels that the benefit extended by this Court in the earlier orders referred may be extended to the Petitioner - Petition disposed off.
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2022 (12) TMI 1366 - GUJARAT HIGH COURT
Detention of goods alongwith conveyance - interaction, interplay and inter se application of Section 129 and Section 130 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- As could be seen from the impugned order, with regard to truck No. GJ-10-TX-0491, the penalty amount is Rs. 12,44,920/-. The fine and other charges are demanded to the extent of Rs.69,16,220/- and the tax is demanded of Rs.12,44,920/-. So far as confiscation of truck bearing registration No. GJ- 10TX-4546 is concerned, the penalty amount is Rs. 12,58,428/-, fine and other charges are demanded to the extent of Rs.69,91,276/- and the tax is demanded of Rs.12,58,428/-.
By way of interim relief, it is directed that the respondents shall release the goods and conveyance of the petitioner, confiscated and detained pursuant to the notices, subject to the conditions imposed - petition allowed.
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2022 (12) TMI 1365 - ALLAHABAD HIGH COURT
Validity of assessment order - no notice or opportunity of hearing was afforded to the petitioner - Section 74 of the CGST Act / UPGST Act, 2017 - HELD THAT:- The finding of the Assessing Officer regarding issuance of show cause notice in Form GST-DRC-01A, under Section 74(5) of the Act, 2017 requiring the petitioner to show cause and avail opportunity of personal hearing on the date, time and place fixed in the notice, has not been denied by the petitioner in the writ petition. A copy of the show cause notice requiring the petitioner to submit his reply and fixing the date, time and place for personal hearing, has been produced before us by the respondent no. 3 along with the aforesaid instructions dated 14.6.2022, in which the date, time and place for personal hearing is clearly mentioned. The fact of issuance of notice in Form GST-DRC-01 dated 14.1.2022 is clearly mentioned at internal page 12 of the impugned assessment order but the petitioner has neither filed copy of the aforesaid show cause notice nor disclosed it in the writ petition nor disputed the finding of fact recorded in the impugned order regarding issuance of said notice and affording of opportunity of personal hearing to him.
The petitioner has concealed material facts of the case which also dis-entitles him to any relief in writ jurisdiction under Article 226 of the Constitution of India.
There are no merit in the submission of learned counsel for the petitioner regarding breach of principles of natural justice by the respondent no. 3 while passing the impugned order - petition dismissed.
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2022 (12) TMI 1364 - GUJARAT HIGH COURT
Seeking grant of Regular bail - firms had availed input tax credit on the basis of the invoices received without actual receipt of the goods from 7 registered entities - HELD THAT:- There is no straight jacket formula for consideration of bail to an accused, as it all depends upon the facts and circumstances of each case. In the case of UNION OF INDIA VERSUS K.A. NAJEEB [2021 (2) TMI 1212 - SUPREME COURT], it was held that under trials cannot indefinitely be detained pending trial. In the facts of present case, investigation is virtually over and amount as referred having been disclosed during the search proceedings. Therefore the contentions raised by the respondent authority that investigation is underway is not tenable. Admittedly, complaint is filed before the competent court. In such circumstances, when trial would take considerable time and the respondent authority failed to make out a case that further custody of the applicant is necessary, the detention for further period is unwarranted.
The applicants are ordered to be released on regular bail, on executing personal bond of Rs.10,000/- each, with one surety each of the like amount to the satisfaction of the learned Trial Court and subject to the conditions imposed - application allowed.
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2022 (12) TMI 1363 - APPELLATE AUTHORITY FOR ADVANCE RULING, GUJARAT
Input Tax Credit - GST charged by service provider on canteen facility provided to employees working in factory - Whether ITC will be restricted to the extent of cost borne by the Applicant (employer)? - HELD THAT:- As second proviso to Section 17(5)(b) inserted vide CGST Amendment Act, 2018 effective from 1.2.2019, is applicable to the whole of clause (b) of sub-section (5) of Section 17 of the CGST Act, Input Tax Credit will be available to the appellant in respect of food & beverages as canteen facility, is obligatorily to be provided under the Factories Act, 1948, to its employees working in the factory. Input Tax Credit will be available in respect of such services provided by canteen facility to its direct employees but not in respect of other type of employees including contract employees/workers, visitors etc.
The appellant also raised the question if ITC is available on GST charged by the service provider on canteen facility provided to its employees working in their factory, whether it will be restricted to the extent of cost borne by the appellant. In this regard we find that the authorized representative of the appellant during the course of personal hearing had submitted that they will not take input tax credit to the extent applicable on the amount of canteen charges recovered from their employees and will reverse the credit to that extent. Further vide their dated 12.09.2022 they submitted that they have been discharging GST on the canteen charges recovered from contract employees and they have requested to allow the ITC on GST charged by the service provider on canteen facility provided to employees working their factory to the extent of cost suffered by the appellant.
Reliance placed upon the judgment of Hon'ble High Court of Bombay in the case of Commissioner of Central Excise, Nagpur Versus Ultratech Cement Ltd., [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein it was held that “Once the service tax is borne by the ultimate consumer of the service, namely the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer.” The judgement was in context as to whether manufacturer can avail credit of Service Tax in cases where the cost of the food is borne by the worker - the ITC on GST charged by the canteen service provider will be available only to the extent of cost borne by the appellant, for providing the canteen services only to its direct employees.
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2022 (12) TMI 1326 - CALCUTTA HIGH COURT
Cancellation of registration of petitioner - Genuineness of the transaction going by the pay load of the vehicles, which was used for transporting the goods - HELD THAT:- The appellate authority straight away refers to the action taken by the tax authorities of Ultadanga wherein two separate enquiries were conducted in the business premises of M/s. Suraj Enterprise and the enquiry was conducted on 14th November, 2019 and 17th February, 2020. Admittedly, the transaction done by the appellant was in October, 2018. Thus, to conclude that the other end dealer is a non-existing dealer, there should be material to show that on the date when the appellants had transaction with him, there was no valid registration. If the cancellation of the registration of the other end dealer is by way of retrospective cancellation, then the question would be as to whether it would affect the transaction done by the appellants, more particularly when the appellants have been able to show that the payments for the transaction have been done through banking challans - The appellate authority was solely guided by the action taken by the Ultadanga tax authorities without examining the specific facts and circumstances of the case on hand.
It is found that the order passed by the appellate authority to be a non-speaking order in the sense that there is no independent finding rendered by the appellate authority qua the allegation against the appellants. Therefore, it is a fit case where the matter should be remanded back to the appellate authority to specifically consider the contentions, which was advanced by the appellants and also the fact that the other end dealer’s registration was cancelled with retrospective effect - appeal allowed by way of remand.
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2022 (12) TMI 1325 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Exemption from GST - activity of custom milling of paddy - entitlement for exemption under which notification? - HELD THAT:- The contention of the applicant, claiming that they are carrying out the function of public distribution system which is a function entrusted to a Panchayat under the Constitution of India, is incorrect and appears to be based on misconstrued notion in as much as the applicant is engaged for the aforesaid activity on behalf of the government, in lieu of monitory consideration for purely commercial gains. The applicant neither forms a part of public distribution system of the state government nor panchayat body, therefore its activity of custom milling does not comes under entry No. 3A to Notification No, 12/2017- Central Tax (Rate) New Delhi, the 28th June, 2017 as amended vide Notification No. 2/2018- Central Tax (Rate), 25th January, 2018. Accordingly, the claimed benefit of tax exemption, citing reference of Circular No. 51/25/2018-GST dated 31/07/2018 is misplaced and thus it is concluded that the applicants claim of any tax exemption on custom milling of paddy merit rejection.
Circular No. 19/19/2017-GST dated 20.11.2017 from F. No. 354/263/2017-TRU issued by Government of India Ministry of Finance Department of Revenue Tax research Unit, North Block, New Delhi, clarifies on the subject of taxability of custom milling of paddy holding that milling of paddy into rice is not eligible for exemption under S. No 55 of Notification 12/2017 - Central Tax (Rate) dated 28th June 2017 and corresponding notifications issued under IGST and UTGST Acts. GST rate on services by way of job work in relation to all food and food products falling under Chapters 1 to 22 has been reduced from 18% to5% vide notification No. 31/2017-CT(R) [notification No. 11/2017-CT (Rate) dated 28.6.17, S.No. 26 refers]. Therefore, it is hereby clarified that milling of paddy into rice on job work basis, is liable to GST at the rate of 5%, on the processing charges (and not on the entire value of rice).
The activity of custom milling of paddy carried out by the applicant is not exempted from the purview of Goods and Service Tax and is liable to GST at the rate of 5%.
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