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GST - Case Laws
Showing 241 to 260 of 2178 Records
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2023 (11) TMI 1302
Classification of fish meal - Applicability of GST exemption for fish meal as provided under Sl. No. 102 of Exemption Notification vide Notification No. 2/2017 dated 28.06.2017 - HELD THAT:- The description of goods in Sl. No. 102 of Notification No. 2 of 2017 includes Tariff Headings 2302, 2304, 2305, 2306, 2308 and 2309 and after the corrigendum dated 27.07.2017, includes Tariff Heading 2301, and there is no change in the description of goods. It is to be noted that the description of goods found in Sl. No. 103 of Notification No. 1 of 2017 under Tariff Heading 2301 attracts GST of 5%.
The products manufactured by writ petitioners fall under Tariff Heading 2301 which is found in Sl. No. 103 of Notification 1 of 2017. Therefore, the product manufactured by the writ petitioners is not exempted and it attracts GST of 5%. Since all goods with the description including “fish meal” under Heading 2301 attract GST of 5%, the petitioners cannot dispute the fact that products manufactured by them attract GST of 5% but for the Notification No. 2/2017 dated 28.06.2017. Therefore, even according to the petitioners, but for Notification No. 2/2017 dated 28.06.2017 along with corrigendum, they are liable to pay GST of 5% for the products manufactured by them. By issuance of corrigendum dated 27.07.2017, the Tariff Heading 2301 was also included in the exemption notification dated 28.06.2017 for the first time. However, the description of goods in Notification No. 2/2017 dated 28.06.2017 is not changed.
From the description of goods in Tariff Heading in Sl. No. 102 as per the Notification No. 2/2017 dated 28.06.2017, this Court is unable to accept the contention of the learned counsel for the writ petitioners that the product manufactured by the writ petitioners would also come under the description of goods “aquatic feed including shrimp feed or prawn feed or poultry feed, etc.”, as it is admitted that the petitioners' product is not used as an aquatic feed and it is being supplied to the manufacturers of aquatic feed.
This Court is unable to sustain the order of learned Single Judge holding that the petitioners supply fish meal as a finished product and therefore, they fall under Sl. No. 102 of Notification No. 2 of 2017 within Tariff Heading 2301. The term “including” in the description of goods cannot be interpreted to include even fish meal in powder form, when it is not sold as aquatic feed.
Reliance placed upon the judgment of the Hon'ble Supreme Court in RAMALA SAHKARI CHINI MILLS LTD, UP VERSUS CCE MEERUT [2010 (11) TMI 34 - SUPREME COURT] for the proposition that the word “include” should be given wide interpretation, as by employing the said word, the legislature intends to bring in, by legal fiction, something within accepted connotation of the substantive part, this Court is unable to apply the principles in the said judgment interpreting the word “include”, for the reason that the description of goods found in Tariff Heading 2301 attracting GST of 5% is intact - The learned Single Judge failed to consider the position that the levy of duty or exemption is only in respect of goods specified in Column (3) of Schedule and the goods which are not given by description cannot be assumed or included in the exemption notification. It is true that fish meal in powdered form comes under Tariff Heading 2306 is exempted. When it is unfit for human consumption, it can be included only under Tariff Heading 2301. Therefore, the observation of learned Single Judge that fish meal in powder form comes under two Tariff Headings, namely 2301 and 2309, is not warranted, especially when it is not the case of writ petitioners that the goods manufactured by them falls under Tariff Heading 2309.
This Court in the present situation finds that the Circular which is more in the nature of clarification is required to bring uniformity. In the absence of a clarificatory order, any one will be misled and the clarificatory impugned Circular clarifying the previous notification is justified and as held by the Constitution Bench of the Hon'ble Supreme Court in Dilip Kumar's case [2018 (7) TMI 1826 - SUPREME COURT], the interpretation in favour of Revenue is taken.
The order of the learned Single Judge is set aside - Appeal allowed.
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2023 (11) TMI 1299
Seeking release of Currency of Rs. 58.00 Lacs resumed/seized illegally by the Respondents - HELD THAT:- The issue involved in the present case is squarely covered by an earlier decision of this Court in DEEPAK KHANDELWAL PROPRIETOR M/S. SHRI SHYAM METAL VERSUS COMMISSIONER OF CGST, DELHI WEST & ANR. [2023 (8) TMI 929 - DELHI HIGH COURT] where it was held that 'The respondents are directed to forthwith release the currency and other valuable assets seized from the petitioner during the search proceedings conducted on 28.01.2020.'
Petition disposed off.
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2023 (11) TMI 1293
Detention of the petitioner’s vehicle along with goods - levnon-updation of Part-B of the e-waybill - HELD THAT:- The impugned order of penalty which does not contain any cogent reason and the same is non-speaking order. Since it appears that violation of non-updating of Form-B is due to genuine difficulty and there was no intention of evasion of any tax and the formality of updating the Form-B was complied immediately within two minutes of interception of vehicle in question, imposition of penalty of Rs.8,71,074/- is very harsh, in the exceptional facts and circumstances of the case as recorded hereinabove, penalty of Rs.50,000/- will be justifiable.
Petition disposed off.
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2023 (11) TMI 1288
Seeking grant of bail - offence punishable under Sections 132(1)(c), 132(1)(i) of the Central Goods and Service Tax Act, 2017 - it is submitted that the applicant has been arrested without assigning any reason to believe nor any satisfaction to justified his arrest as provided in the Code - violation of principles of natural justice - HELD THAT:- It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of STATE OF RAJASTHAN, JAIPUR VERSUS BALCHAND @ BALIAY [1977 (9) TMI 126 - SUPREME COURT], GUDIKANTI NARASIMHULU AND ORS. VERSUS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH [1977 (12) TMI 143 - SUPREME COURT], RAM GOVIND UPADHYAY VERSUS SUDARSHAN SINGH AND ORS. [2002 (3) TMI 945 - SUPREME COURT], PRASANTA KUMAR SARKAR VERSUS ASHIS CHATTERJEE AND ORS. [2010 (10) TMI 1199 - SUPREME COURT] and MAHIPAL VERSUS RAJESH KUMAR @ POLIA & ANR. [2019 (12) TMI 1461 - SUPREME COURT], the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, it is opined that it is a fit case for grant of bail.
Hence, the present bail application is allowed, subject to fulfilment of conditions imposed.
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2023 (11) TMI 1281
Challenge to impugned SCN - petitioner submits that the impugned SCN is ex facie erroneous on several grounds - HELD THAT:- It is not considered apposite to examine any of the issues raised by the petitioner as the matter is at the show cause notice stage. The petitioner would be at liberty to address all issues, including those as set out above, before the concerned officer.
Needless to state that the concerned officer is required to examine all the issues, as raised. If the said contentions are not accepted, the concerned officer is required to pass a speaking order. It is also trite law that the concerned officer cannot travel beyond the show cause notice.
Petition disposed off.
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2023 (11) TMI 1270
Cancellation of petitioner's registration - issuance of SCN - audit was not completed within statutory period - HELD THAT:- At present, it is found, prima facie, is that though the notice Ex.P9 is dated 04.09.2023 and the period mentioned there under for the petitioner to file the reply was 15 days on receipt of notice, but the petitioner's case is that the notice was received on 14.09.2023, which, prima facie is also so evident from Ex.P12, said to be a document of the respondent authorities, and consequently, let the instructions be obtained by the learned Government Pleader with respect to the date of issue and receipt of the notice dated 04.09.2023 by the petitioner.
The matter is listed on 20.11.2023 in the “Motion List”, for instructions as aforesaid.
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2023 (11) TMI 1252
Withholding of GST amount - impact while paying bills from the month of September, 2019 - liability to pay GST shall be that of the Respondents in terms of the amended work order or not - reimbursement of GST - it was held by High Court that The respondents were not justified in withholding the amount of GST impact and the same is arbitrary, violative and against their own terms of agreement - HELD THAT:- There are no reason to interfere with the impugned order - petition disposed off.
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2023 (11) TMI 1227
Seeking grant of regular bail - allegation of registration of fake firm - making fake transactions for the purpose of evasion of tax - HELD THAT:- The petitioner is in custody since 04.06.2023. It is not controverted that he is suffering from advance stage of HIV positive. The challan has already been presented against the petitioner and there is no other case registered against the petitioner and criminal liability if any could be ascertained after conclusion of trial which will take sufficient long time and no purpose would be served by keeping petitioner behind bars any longer.
Consequently, without commenting on the merits of the case, and keeping in view the medical condition of the petitioner, it is observed that no purpose would be served in keeping petitioner behind bars - petitioner is ordered to be released on bail, subject to conditions imposed - petition allowed.
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2023 (11) TMI 1220
Violation of principles of natural justice - initiation of proceeding under Section 73 of the OGST & CGST Act - notice under Section 61 of the CGST/OGST Act has been issued - no opportunity of hearing was given to the petitioner - HELD THAT:- It is provided under Section 61(3) of the CGST/OGST Act that in case no satisfactory explanation is furnished within a period of thirty days of being informed by the proper officer or such further period as may be permitted by him or where the registered person, after accepting the discrepancies, fails to take the corrective measure in his return for the month in which the discrepancy is accepted, the proper officer may initiate appropriate action including those under Section 65 or Section 66 or Section 67, or proceed to determine the tax and other dues under Section 73 or Section 74. In the present case, the authority chose to initiate action under Section 73. Therefore, she was required to adhere to the modality contained in said Section 73 read with Rule 142.
The notice issued intimating discrepancy in the returns under Section 61 of the CGST/OGST Act dated 26.10.2022 under Annexure-2 and the order dated 31.01.2023 passed under Section 73 of the Act vide Annexure-1 cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed - The matter is remanded to the Assessing Authority to proceed de novo from the stage of issuance of notice intimating the discrepancy in returns after scrutiny under Section 61 of the CGST/OGST Act by affording due opportunity of hearing to the petitioner.
Petition disposed off by way of remand.
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2023 (11) TMI 1217
Validity of impugned order - the impugned order is not signed by the authority - HELD THAT:- In M/S. SRK ENTERPRISES, VERSUS ASSISTANT COMMISSIONER (ST), BHEEMILI CIRCLE, VISAKHAPATNAM [2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT], this Court referred to the previous order of the Co-ordinate Bench in the case of AV BHANOJI ROW VERSUS ASSISTANT COMMISSIONER ST VISAKHAPATNAM [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT] and held that the signatures cannot be dispensed with and the provisions of Section 160 & 169 of the CGST Act, 2017 would not come to the rescue.
This is not the first case in which the order is not signed by the concerned authority but uploaded. The challenge to such kinds of order has been upheld. This defect and consequently passing fresh orders, delays the proceedings in tax matters. Also unnecessarily burdens this Court.
Petition allowed.
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2023 (11) TMI 1206
Validity of summary SCN - only the Summary Order has been uploaded and the detailed order has not been uploaded - HELD THAT:- The impugned order dated 27.09.2022 is set aside. The matter is remitted back to the authorities concerned for the purpose of read judication - Petition disposed off by way of remand.
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2023 (11) TMI 1205
Validity of SCN and subsequent order of demand issued u/s 73 of the Central Goods and Services Tax Act, 2017 - denial of reasonable opportunity arising from the fact that despite show cause notice dated 03.09.2022 (Annexure P/2) affording 30 days’ time for the petitioner to respond, the impugned order u/s. 73 was passed on 12.09.2022 i.e. within nine (9) days - not self-contained SCN - HELD THAT:- A bare perusal of show cause notice u/S. 73 of CGST Act reveals that the same was issued on 03.09.2022 affording opportunity to petitioner to make payment of tax with admissible penalty within 30 days.
From the language employed in Section 73, it is obvious that Section 73(1) affords opportunity to noticee to show cause which means to respond as to why he should not pay the amount specified in the notice with interest and penalty, if any - Though no time period is stipulated in Section 73 for the noticee to respond but it is obvious that the statute contemplates affording of reasonable opportunity to reply to show cause notice.
Thus, it is evident that the time gap provided between show cause notice dated 03.09.2022 (Annexure P/2) and impugned order dated 12.09.2022 (Annexure P/3) was only 8 clear days which in the considered opinion of this Court falls desperately short of satisfying the concept of reasonable opportunity of being heard.
Another ground raised by counsel for petitioner is that the statement prescribed u/S. 73(2) has not been afforded to petitioner thereby keeping the petitioner in dark as regards the foundational material which persuaded the show cause notice issuing Authority to form a prima facie opinion against petitioner - From bare perusal of the impugned show cause notice (Annexure P/2) and order (Annexure P/3), it is not evident as to whether show cause notice was issued in cases covered by Section 73(1) or not - Thus, it would be appropriate to leave this aspect for the competent authority to decide it at its level.
The third ground raised by the petitioner is that the impugned show cause notice (Annexure P/2) is not pregnant enough as regards foundational material to enable a reasonable opportunity to petitioner to respond effectively to the same. Meaning thereby that the impugned show cause notice is vague, sketchy and lacking in material particulars - In this regard, this Court merely observes that any show cause notice whether u/s. 73 or otherwise can withstand the test judicial scrutiny only when the same contains enough and adequate material which motivated the notice issuing Authority to take a prima facie view against the noticee. If the contents of impugned show cause notice are lacking in material particulars or are vague in regard to any of the entries contained therein then such show caused notice becomes vulnerable to judicial review.
Thus, what comes out loud and clear is that the show cause notice not only falls short of the minimum period of 30 days to afford reasonable opportunity to noticee to respond but also appears to be lacking in material particular - impugned SCN set aside - petition allowed.
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2023 (11) TMI 1204
Release of goods alongwith vehicle on furnishing a bond in Form GST INS-04 and security in form of bank guarantee as per Rule 140(1) of the UPGST Rules read with Section 67(6) of the UPGST Act, 2017 - HELD THAT:- Learned Standing Counsel appearing for the respondents has admitted that under the rules, it is open for a party to claim provisional release of the goods and vehicle on furnishing the security in the Form of a Bank guarantee and bond in Form GST INS-04, as prayed for by the petitioner.
Since the submission made by counsel for the petitioner is not being disputed, the writ petition is allowed.
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2023 (11) TMI 1203
Suppressed turnover or not - Mismatch of turnover with the data received from Mines Department - tax on on reverse charge for seigniorage fees - Details of computation and information not provided to the petitioner - HELD THAT:- Considering the submissions made by the learned counsel for the petitioner as well as the learned Government Advocate (Taxes) appearing for the respondent, since the petitioner has restricted his submission to the extent of disposal of the rectification application dated 30.05.2023 filed by him or any other applications, if any already filed, the respondent is directed to dispose of the rectification application filed by the petitioner, within a period of three months from the date of receipt of a copy of this order.
All these writ petitions are disposed of.
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2023 (11) TMI 1202
Rejection of petitioner's appeal filed under Section 107 of the TNGST Act, 2017 against the order cancelling the petitioner's GST registration - appeal rejected by the second respondent on the ground of limitation as the appeal was admittedly beyond the condonable period of limitation under Section 107 of the TNGST Act, 2017 - HELD THAT:- The petitioner has filed the Appeal on 23.05.2023, when, the amnesty scheme under Notification No.25/2023 – Central Tax dated 17.07.2023 was still in force. Considering the above, Court is inclined to direct the second respondent to dispose of the appeal in the light of the amnesty Scheme. It is made clear that the petitioner shall however comply with the other conditions of the Scheme and also deposit the arrears of tax, forthwith. Subject to such compliance the appeal shall be disposed within a period of four weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2023 (11) TMI 1201
Validity of impugned Assessment order - seeking to demand the input tax credit availed by the petitioner on the strength of invoices raised by one M/s. C.A. Gowtham Steels - HELD THAT:- Although the order passed by the respondent cannot be faulted as the petitioner has failed to respond to notice in DRC -01 dated 11.03.2023 issued for the respective Assessment years, the fact remains that the dispute pertains to input tax credit availed by the petitioner on the suppliers allegedly made by M/s. C.A. Gowtham Steels to the petitioner.
Considering the fact that the order has been passed in favour of the petitioner's sister company namely M/s. Tarsun Steels India (P) Limited, Court is inclined to set aside the impugned order and remits the cases back to the respondent to pass a fresh order on merits and in accordance with law. It is open for the respondent to pass a fresh order on merits after considering the aforesaid order of the Central Authority dated 10.02.2023.
Petition disposed off.
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2023 (11) TMI 1200
Exemption from GST - hostel accommodation being provided by the Applicant to students and working women - residential dwelling for use as residence or not - tariff heading and the rate of taxability of the supply of service - incidental activity of supply of in-house food to the inmates of the hostel - composite exempt supply.
Whether the hostel accommodation extended by the Applicant hostel would be eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-CT (Rate) dated 28.06.2017 and under the identical Notification under the TNGST Act, 2017, and also under Entry 13 of Exemption Notification No. 09/2017-IT (Rate) dated 28.06.2017, as amended? - HELD THAT:- The term ‘residential dwelling’ has not been defined either under CGST Act or under Notification No. 12/2017. However, under the erstwhile service tax law, in paragraph 4.13.1 of the ‘Taxation of Services: An Education Guide dated 20.06.2012’, issued by the CBIC, the expression residential dwelling’ has been interpreted in terms of the normal trade parlance as per which it is any residential accommodation, but does not include hotel, motel, inn, guest house, camp - site, lodge, house boat, or like places meant for temporary stay - It is observed that hostels are nothing but accommodations which provide temporary lodging to the inmates, whether students or working people. Similar to converting a residential dwelling into a hotel and providing hotel services, which eventually makes the same dwelling “non-residential” and taxable, in the instant case, the residential homes (for use as a residence) have been converted into a commercial premises ic., hostel accommodation, thereby losing its status as ‘residence dwelling’ and has become a business premises comparable to a hotel.
The hostel accommodation is not equivalent to residential accommodation and hence the services supplied by the Applicant would not be eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-CT(Rate) dated 28.06.2017 and under the identical Notification under the TNGST Act, 2017, and also under Entry 13 of Exemption Notification No. 09/2017 IT(Rate) dated 28.06.2017, as amended.
Tariff heading and the rate of taxability of the supply of service - HELD THAT:- It is observed that hotels are meant for a temporary stay (2-5 days) and have lot of facilities and staff, but hostels are used for a longer period and have basic facilities with minimal staff required by the inmates to stay at a reasonable rate. Therefore, hostel services cannot be equated to a hotel accommodation and hotel GST rates cannot be applied to a hostel. Therefore, we hold that supply of hostel accommodation services (Tariff heading 9963) is taxable (a 9% CGST + 9% SGST under SI.No. 7(vi) of the above Notification (SI.No. 7 (ix) as per original notification).
In the event of the hostel accommodation being an exempt activity, whether the incidental activity of supply of in-house food to the inmates of the hostel would also be exempt being in the nature of a composite exempt supply? - HELD THAT:- The natural bundle has the characteristic of where one service is the main service and the other services are ancillary services which help in better enjoyment of the main service. Further, there is a single price for the combined services. The principal activity of the Applicant is supply of accommodation Services. While providing such services, the charges are being realised in a consolidated manner for the value of food and other like services rendered. The Applicant has stated that they do not charge separately for the other services provided by them. Thus, the services provided by the Applicant are composite in nature - As per Section 8 of the CGST Act, 2017, for a Composite supply, the tax rate on the principal supply will be treated as the tax rate on the given composite supply. Since the Applicant provides a number of services in a composite manner, the hostel accommodation services provided by the Applicant, being the principal supply, which is taxable @18%, will be tax rate for the composite supply provided by them.
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2023 (11) TMI 1157
Rejection of appeal of the petitioner - Correctness of proceedings u/s 74 of the GST Act - petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction as well as the genuineness of the transactions - HELD THAT:- It is admitted fact between the parties that the goods have been shown to be purchased from M/s Krishna Trading Company, Mathura. In support thereof, tax invoice, e-way bill, weighment receipt before & after loading, bilty, etc. were filed and on the basis of the said documents, ITC was availed by the petitioner. Thereafter, on scrutiny, neither M/s Krishna Trading Company was found to be in existent, nor the persons, who issued the bilty and weighment slip, was found in existent. Once the very basis to show that the movement of goods has taken place was doubted, the petitioner, apparently, failed to prove actual physical movement of goods.
From the perusal of the record shows that the petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction, actual physical movement of goods as well as the genuineness of the transactions and as such, the proceedings have rightly been initiated against the petitioner under section 74 of the GST Act.
Thus, no interference is called for in the impugned order - petition dismissed.
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2023 (11) TMI 1156
Rejection of bail - fake entities created to pass on and avail Input Tax Credit under the GST regimen (ITC) to defraud government exchequer - exports declared are all bogus and fake - HELD THAT:- In RATNAMBAR KAUSHIK VERSUS UNION OF INDIA [2022 (12) TMI 263 - SUPREME COURT], the Hon’ble Supreme Court granted bail to the petitioner therein, the facts of the case being somewhat similar to the present case.
It is true that the allegation made against the petitioner is that he received the benefit of the amount that was granted to different entities to the tune of Rs. 7,79,52,045/-, obtaining refund of Rs. 7,79,52,045/- and it is contended by the prosecution/complainant that there is likelihood of the discovery of more such transaction, but it is also not disputed that the final prosecution report has been filed in the case. The petitioner was arrested on 11.07.2023, incarcerated for more than four months and the punishment provided is imprisonment which may extend to five years and fine and completion of trial in any event would take some time.
Since the alleged offence constitutes the act of crediting amount of ITC through the departmental Online system, to the account of the certain entities which have been alleged to be non-existent and the money has been subsequently received by the petitioner, the evidence tendered by the opposite party/complainant would essentially be documentary and electronic. The ocular evidence will be through official witnesses of the department due to which there can be no apprehension of tampering, intimidating or influencing.
This Court is inclined to grant the prayer for bail made by the petitioner subject to such stringent terms and conditions imposed - bail application allowed.
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2023 (11) TMI 1155
Validity of seizure order as well as penalty order - variation in the description of good actually found with that mentioned in the documents - requirement to examine the documents accompanying the goods at the time of seizure - HELD THAT:- The finding that the parties had under valued the goods or there was any intention to avoid payment of correct amount as tax may justify seizure and penalty but cannot be made ground to not treat the petitioner as owner of the goods. The respondents ought to have examined the documents accompanying the goods at the time of seizure in terms of their own Circular dated 31.12.2018 in determining the said issue.
The order to the extent it seeks to reject the prayer for release of goods in favour of the petitioner, cannot be sustained. It is accordingly quashed to the said extent only. The second respondent is directed to reconsider the issue relating to release of goods in favour of the petitioner keeping in mind the Circular dated 31.12.2018 and the fact that invoice and e-way bill were found accompanying, the consignment of seized goods - Petition disposed off.
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