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GST - Case Laws
Showing 341 to 360 of 2178 Records
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2023 (11) TMI 661
Violation of the principles of natural justice - no proper opportunity was given to the petitioner or his authorized representative to appear before the 1st respondent - HELD THAT:- From the perusal of the averments made in the impugned order, it is seen that after receipt of the notice in the appeal proceedings, the appellant and his authorized representative had appeared before the 1st respondent and had sought adjournment, the appellate authority has not given the next date of hearing, but further notice was issued to the appellant and the authorized representative. It is the case of the petitioner that such further notice issued to the petitioner were not served upon them.
The order impugned is required to be set aside on the short ground that the same is passed in violation of principles of natural justice - the matter is remitted to the 1st respondent to consider the appeal filed by the petitioner in accordance with law and pass appropriate orders on the same in accordance with law.
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2023 (11) TMI 660
Maintainability of appeal - appeal dismissed for non-prosecution - despite opportunity being granted to the appellant to produce the documents in support of his case, he did not produce the same - supplier was not issued a notice in the appeal - principles of natural justice - HELD THAT:- The Appellate Authority even while considering the appeal ex parte will have to consider the grounds raised in the memorandum of appeal, deciding the appeal on merits, failing which it would be abdicating its powers especially looking at the provisions where the Appellate Authority has been empowered to conduct such further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised.
The appeal restored before the Appellate Authority - petitioner shall appear before the Appellate Authority on 25.07.2023. The Appellate Authority or its office shall fix a date of hearing on the said date, with due acknowledgment taken from the appellant; if the date of hearing is issued from the office, proceed with the hearing on the date fixed and dispose of the appeal on merits within three months from the date of last hearing.
Petition allowed.
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2023 (11) TMI 659
Vires of Sub-Rule (10) of Rule 96 of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- NOTICE, returnable on 27TH JULY, 2023.
By way of ad-interim-relief, it is directed that the Respondent-authorities shall not make any coercive recovery from the petitioner in respect of refund of integrated tax already paid, till further orders.
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2023 (11) TMI 658
Supply or not - levy of GST - canteen facilities provided to its employees - tax on recoveries being made by the applicant from its employees towards the canteen and transportation facilities provided to them - Section 7 of the CGST Act - eligibility to ITC on the GST paid on canteen services in terms of proviso to Section 17(5)(b) of the CGST Act, 2017.
Reliance placed on clarification provided by CBIC in Circular No. 172/04/2022 dt: 06.07.2022 and the press release no. 73/2017 dt: 10.07.2017 wherein it was clarified by the CBIC that prerequisites provided by the employer to its employees in terms of contractual agreement will not be subjected to GST.
Whether GST is liable to be discharged on the recoveries being made by the applicant from its employees towards the canteen facilities provided to them? - HELD THAT:- The perquisites provided by the employer, canteen services in the present case, to their employees in terms of the contractual agreement between the employer and his employees as submitted by them, are in lieu of the services provided by them to their employees in relation to employment. Therefore the perquisites provided by the employer to the employee, in terms of contractual agreement, will not be subjected to GST. However if the employer makes taxable supply of canteen services to employees by charging consideration for the purpose of business, instead of providing them as a perquisite, the same will be subject to payment of GST, at prescribed rates, as per provisions of CGST/TGST Act’ 2017.
Whether the applicant is eligible to avail input tax credit in respect of the GST paid on inward supplies used for providing canteen facilities? - HELD THAT:- As per Section 17(5)(b) of CGST/TGST Act 2017 input tax credit in respect of such canteen facilities shall be available, where it is obligatory for an employer to provide the same to its employees under Factories Act, 1948.
Whether GST is liable to be discharged on the recoveries being made by the applicant from its employees towards the transportation facilities provided to them? - HELD THAT:- The transportation services, if provided as a perquisite by the employer to the employee, in terms of contractual agreement between the employer and employee, will not be subjected to GST. However if the employer makes taxable supply of transportation services to employees by charging consideration for the purpose of business, instead of providing them as a perquisite, the same will be subject to payment of GST, at prescribed rates, as per provisions of CGST/TGST Act 2017.
Whether the applicant is eligible to avail input tax credit in respect of the GST paid on inward supplies used for providing transportation facilities? - HELD THAT:- Provision of service of transportation of employees from residence to office premises is for personal consumption or comfort of employees but not an activity which is part of business as the business of the applicant is to manufacture & supply of pre-engineered buildings and storage racking systems but not supply of transportation of employees or passengers. Input tax credit shall not be available in respect of goods or services or both used for personal consumption as per Section 17(5)(g) of CGST/TGST Act 2017.
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2023 (11) TMI 603
Levy of GST and Service Tax - royalty payable to the Government on mining of minerals - it was held in similar case in M/S SIDDHARTH VERSUS UNION OF INDIA AND 2 OTHERS [2022 (4) TMI 469 - ALLAHABAD HIGH COURT] where it was held that In view of the interim orders passed by the coordinate Bench of this Court in M/S A.D. AGRO FOODS PRIVATE LIMITED VERSUS UNION OF INDIA [2021 (12) TMI 656 - ALLAHABAD HIGH COURT], it is found that the petitioner has made out a case for interim relief.
Since the same issue is engaging the attention of this Court in the case noted above, the petitioner deserves to be treated similarly.
Interim Relief / Stay granted.
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2023 (11) TMI 602
Correctness of SCN - it is alleged that noticee did not declare correct tax liability while filing the annual returns of GSTR – 09 - petitioner-noticee was asked to submit its reply by 28.10.2023 - HELD THAT:- Having regard to the issue involved in this writ petition, it is observed that if no order has been passed on or before 28.10.2023 or subsequent thereto till date, status quo as regards the proceedings stated to be drawn up vide the Show Cause Notice dated 28.09.2023, be maintained till the next date of listing.
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2023 (11) TMI 601
Power of GST Council to issue clarification regarding classification of goods under GST - Prayer for Certiorarified Mandamus calling for the records of the decision of the 3rd respondent GST Council’s Minutes of Meeting taken on 22nd December, 2018 - classification of flavoured milk - to be classified under HS Code No. 2202 instead of HS Code 0402 - contrary to the decision of the Hon’ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE VERSUS M/S AMRIT FOOD (A. DIVISION OF AMRIT CORPORATION LTD) [2015 (9) TMI 1269 - SUPREME COURT], Articles 279 A (4), 14, 19(1) (g) and Article 265 of the Constitution of India.
Whether the petitioner is justified and questioning the wisdom of the GST Council whose decision has been accepted by the Authoritty for Advanced Ruling IN RE: M/S. BRITANNIA INDUSTRIES LIMITED [2021 (8) TMI 193 - APPELLATE AUTHORITY ADVANCE RULING, TAMILNADU]?
HELD THAT:- Second Schedule to Notification No.1/2017-Central Tax (Rate) dated 28.06.2017 prescribes 6% CGST on goods specified therein. Sl.No.50 to Second Schedule to Notification No.1/2017-Central Tax (Rate) dated 28.06.2017 prescribes 6% CGST on “Beverage Containing Milk”. Sl.No.50 to Second Schedule to Notification No.1/2017-Central Tax (Rate) dated 28.06.2017 relates to goods under Chapter Heading 2202 90 30 - The impugned recommendation of the GST in its meeting held on 22.12.2018 has concluded that flavoured milk is classifiable under HSN Code 2202 and thereby has suggested that flavoured milk will be liable to tax at 6% CGST. Consequently, flavoured milk will be classifiable under Heading 2202 of HSN. The function of the GST is not to determine the classification under the provisions of the Customs Tariff Act, 1975.
The rule of interpretation of First Schedule to the Customs Tariff Act, 1975 (51 of 1975), including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to the interpretation of this notification - Since, no standalone enactment has been contemplated under the present regime, for rates and for classification of the “goods” and “service”, the Parliament and State Legislatures have left it to the wisdom of respective Governments to fix rate of tax under Section 9(1) of respective GST enactments on the recommendations of GST Council.
Entry 50 to the Second Schedule to the Notification No.1/2017- Central Tax (Rate) dated 28.6.2017 has not seen any major changes. Entry 8 to the First Schedule to the Second Schedule to the Notification No.1/2017-Central Tax (Rate) dated 28.6.2017 benefit of which is claimed by the petitioner for “flavoured milk” has also not seen any major changes since its inception - As per Sl.No.50 to the Second Schedule to Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017, rate of tax is 6%. According to the petitioner, “flavoured milk” is classifiable under Sl.No.8 to the First Schedule to Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017 and therefore liable to tax at 2.5%.
The Hon’ble Supreme Court in AMRIT FOODS VERSUS COMMISSIONER OF CENTRAL EXCISE, UP. [2005 (10) TMI 96 - SUPREME COURT] had earlier set aside the order of the Tribunal in AMRIT FOODS CO. LTD. VERSUS COMMISSIONER OF C. EX., MEERUT-I [2002 (11) TMI 170 - CEGAT, COURT NO. IV, NEW DELHI]. Pursuant to a remand order of the Hon’ble Supreme Court in Amrit Food Vs. Commissioner of Central Excise, [2005 (10) TMI 96 - SUPREME COURT], the Tribunal had rendered its decision in Amrit Food Vs. Commissioner of Central Excise, [2006 (3) TMI 523 - CESTAT, NEW DELHI], which was appealed before the Hon’ble Supreme Court. It is in this background, the Hon’ble Supreme Court rendered its decision in COMMISSIONER OF CENTRAL EXCISE VERSUS M/S AMRIT FOOD (A. DIVISION OF AMRIT CORPORATION LTD) [2015 (9) TMI 1269 - SUPREME COURT].
“Flavoured Milk of Animal Origin” was however brought within the purview of valuation with reference to its retail price under Section 4A of the Central Excise Act, 1944 by Notification No.49/2008- CE (NT) dated 24.12.2008 as amended by Notification No.11/2011- CE(NT) dated 24.03.2011. Classification of “Flavoured Milk” continued to be under sub-heading 2202 9030. IN Notification No.49/2008-CE (NT) dated 24.12.2008 as amended by Notification No.11/2011-CE(NT) dated 24.03.2011 the description of “Flavoured Milk” was again “Flavoured Milk of Animal Origin” against tariff sub heading 2202 90 30 and was liable to tax at 1% with reference to its Maximum Retail Price (MRP) - By Notification No.17/2008-C.E. (N.T.) dated 27.03.2008, special exemption was given to “Flavoured Milk of Animal Origin” under Section 11C of the Central Excise Act, 1944. It was issued in view of the prevailing trade practice and confusion that prevailed for period between 28.02.2005 and 14.06.2007.
The Tribunal in NESTLE INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI [2017 (3) TMI 1409 - CESTAT NEW DELHI] had held that HSN notes also make it clear that the products would fall under Chapter 1901 only when natural milk constituents are added with other items such as cereal, groats, yeast, etc., or the milk constituent is replaced by another substance such as oleic acid. The Tribunal concluded that addition of small quantity of artificial flavouring substance does not change the essential nature of the product from what is covered under 0404 of the tariff.
The test that whether an artificial flavouring substance will not jettison the product from chapter 4 to Chapter 19 is not a relevant test under the GST regime.
The rival entries in the Customs Tariff Act, 1975 namely heading 0402 and heading 2202 of the First Schedule to the Customs Tariff Act, 1975 have been reproduced in paragraph No.51 of this order. The 3rd respondent GST Council has wrongly clarified that “Flavoured Milk” is classifiable under heading 2202 of Harmonious System of Nomenclature (HSN) based on Chapter Note 1 to Heading 0402 - Specifically it is stated that the flavoured milk will come within the purview of heading 0402 99 90.
The expression “milk” therefore in heading 2202 90 of the First Schedule to Customs Tariff Act, 1975, can include only “milk” from other vegetables products such as coconut milk, almond milk, peanut milk, lupin milk, hazelnut milk, pistachio milk, walnut milk or seed based milk such as sesame milk, flax milk, hemp milk, sunflower milk, or pseudo cereal based milk such as quinoa milk, teff milk, amaranth milk, etc. - It has to be therefore construed that “Beverage Containing Milk” will not include flavoured milk made out of dairy milk. “Beverage Containing Milk”, “Non-Alcoholic Beverages” can include only plant / seed based “Milk”.
The impugned recommendation of the 3rd respondent GST Council cannot be upheld. Classification ought to have been independently determined by the Assessing Officer.
Petition allowed.
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2023 (11) TMI 600
Seeking issuance of mandamus directing the Respondents to respond to the representations submitted by the Petitioner on 21 December 2022, 24 March 2023 and 2 May 2023 - Classification of dialysis machine - HELD THAT:- An affidavit has been filed by the Respondents. However, the same is not on record. Learned Counsel for Respondents are directed to ensure that the affidavit is placed on record.
The prayer of the Petitioner stands answered.
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2023 (11) TMI 599
Revocation of GST registration of petitioner - SCN did not specify any reason for proposing to cancel the petitioner’s GST registration - violation of principles of natural justice - HELD THAT:- The petitioner’s contentions that the SCN did not specify any reason for proposing to cancel the petitioner’s GST registration, and that the impugned order cancelling its registration is void as not informed by reason, is merited. The impugned order cancelling the petitioner’s GST registration does not reflect any reason for the same. The petitioner’s contention that it was required to issue a notice to the petitioner prior to any inspection is merited, however, it is the petitioner’s case that he had shifted its principal place of business. Thus, even if a prior notice of inspection had been issued, no effective purpose would be served as admittedly the petitioner is not carrying on its business from its stated place of business.
The petitioner’s request for amendment was rejected on the ground that the petitioner had failed to provide the requisite information - it is considered apposite to set aside the order dated 09.05.2023 whereby the petitioner’s application for amendment of the GST registration was rejected.
Petition disposed off.
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2023 (11) TMI 598
Cancellation of GST registration of petitioner - registration obtained by means of fraud, wilful misstatement or suppression of facts - Vague SCN - Principles of natural justice - HELD THAT:- There is no explanation as to why the buyers and suppliers have been found to be suspicious. Merely because the petitioner’s shop was found closed, absent anything more, is not a ground for cancellation of petitioner’s GST registration.
The impugned order cancelling the petitioner’s GST registration is set aside - Petition allowed.
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2023 (11) TMI 597
Cancellation of deceased tax payer’s registration with retrospective effect - failure to furnish the returns for a period of six months - HELD THAT:- It is material to note that the impugned SCN did not propose to cancel the GST registration with retrospective effect. Although the Proper Officer is empowered to cancel the GST registration with retrospective date, the said power cannot be exercised arbitrarily and without any reason for cancelling the GST registration with retrospective effect. In the present case, the allegation against the deceased tax payer is of non-filing of returns. Obviously, a failure to furnish returns for a period of six months, absent any other reason, does not warrant cancellation of the GST registration with retrospective effect.
Since the Proper Officer was informed of the demise of the tax payer and the stoppage of business, the question of filing the returns after the demise did not strictly arise.
It is considered apposite to direct that the registration of the deceased tax payer be cancelled from the date of the application for cancellation of registration filed by the petitioner, that is from 30.04.2022 - petition disposed off.
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2023 (11) TMI 593
Seeking grant of Regular Bail - no single document or instrument is recovered or discovered from the present applicant which can connect the applicant with the alleged offence which speaks volumes - HELD THAT:- This Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail.
This Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail subject to conditions imposed.
Bail application allowed.
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2023 (11) TMI 592
Scope of exemption from GST - Claim of exemption for services provided by sub-contractor to main contractor - The services provided by the Main Contractor claimed as exempted from GST - covered by Notification No. 12/2017-Central Tax (Rate), dated 28th November, 2017 as amended by Notification No 2/2018 - Central Tax (Rate) dated 25/01/2018 or not
HELD THAT:- Though the Notification 12/2017 as amended by Notification 2/2018-Central Tax (Rate), Dt. 25-01-2018 exempt works contract with value of supply of goods less than 25% when the said supply is made to the Central Government, State Government or Local Authority etc., it does not make any mention of the supplies made by the sub-contractor to the works contractor as was done in Notification 11/2017.
As the exemption notification have to be strictly construed, the exemption extended to a works contractor is not applicable for his procurement of works contract - Therefore in sum and substance the exemption extended to a works contractor supplying the works contract services to Government or local bodies is not extendable to a taxable person who is supplying services to such works contractor in absence of any entry or notification under Sec.11 (1) of the CGST Act.
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2023 (11) TMI 552
Wrongful availment of the input tax credit (ITC) - mismatch in the returns - petitioner is aggrieved by the impugned SCN as the said explanation has apparently not been accepted and the respondents have initiated proceedings for recovery of the ITC which, according to the respondents, has been wrongly availed - HELD THAT:- Since the present petition is at the stage of the impugned SCN, it is not considered apposite to interfere in the proceedings, however, the concerned officer shall consider all contentions of the petitioner including the directions issued by the Allahabad High Court and the Gujarat High Court in the petitioner’s case.
The petition is disposed of.
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2023 (11) TMI 551
Cancellation of petitioner’s GST registration - non-filing of returns for a continuous period of six months - SCN proposing to cancel the petitioner’s GST registration did not set out the date for the personal hearing - HELD THAT:- The impugned order does not set out any reason for cancelling the petitioner’s registration except stating that no reply was received to the SCN. It is the petitioner’s case that it had stopped its business in the year 2019 and applied for the cancellation of GST registration with effect from 28.11.2019. In these circumstances there are no grounds in the impugned order setting out any reason for the cancellation of GST registration with retrospective date, that is, 01.07.2017.
The respondent no. 2’s decision to cancel the GST registration with retrospective date cannot be sustained. It is also material to note that the petitioner’s GST registration was proposed to be cancelled on the ground that it had not furnished any return for a period of six months - it is considered apposite to direct that the cancellation of the petitioner’s GST shall take effect from 28.11.2019 and not from 01.07.2017.
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2023 (11) TMI 550
Cancellation of petitioner’s GST registration - SCN did not specifically stated the reason for cancellation - Suppression of facts - HELD THAT:- Concededly, the SCN did not specifically stated the reason for proposing to cancel the petitioner’s GST registration. Although it was alleged that the GST registration was obtained by means of fraud, wilful misstatement, or suppression of facts, but the SCN did not provide any clue as to the alleged fraud committed by the petitioner or the wilful misstatement made by it. There is no indication as to the facts which are alleged to have been suppressed by the petitioner. It is trite law that a show cause notice is to respond to the allegation which form the basis of proposing an adverse action. In the present case, the SCN was incapable of eliciting any meaningful response.
The impugned order is also bereft of any reason. It merely states that it is in reference to the SCN. In view of the above, the impugned order is liable to be set aside as it is void and not informed by reason.
There are merit in the petitioner’s contention that once the petitioner’s GST registration was restored – which was cancelled on an allegation that it was obtained by fraud, misstatement or suppression of facts – it is not open for the respondent to again cancel the petitioner’s GST registration for the same reason unless it is premised on the ground that had occurred after the petitioner’s GST registration has been cancelled on 30.09.2021.
The present petition is allowed and the impugned order is set aside and the petitioner’s GST registration is directed to be restored forthwith.
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2023 (11) TMI 549
Violation of principles of natural justice - non consideration of the reply so filed - HELD THAT:- Evident it is from the show cause notice dated 05.02.2022 that a response was to be filed by the petitioner latest by 20.02.2022, which the petitioner in fact had filed a day prior thereto on 19.02.2022. The impugned order does not reflect consideration of the reply so filed and only on this ground, as there is a violation of principles of natural justice and non consideration of the reply so filed, the order dated 06.06.2022 is hereby quashed and set aside.
It is clarified that this Court has not gone into the merits of the issue and the authorities are free to pass a fresh order after consideration of the response filed by the petitioner on 19.02.2022 and after giving personal hearing to the petitioner from the stage of DRC-01.
The petition is partly allowed.
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2023 (11) TMI 548
Maintainability of petition - contract for the execution of the electrical works regarding the augmentation of the power system in Government Medical College, Kozhikode - HELD THAT:- The question whether the appellant is entitled to be paid GST @12%/18% on the contract amount received or not is a disputed question of fact which cannot be decided in a writ petition filed under Article 226 of the Constitution of India. The determination of the said question includes the interpretation of the terms of the contract entered into between the appellant and the respondents. Such an exercise cannot be undertaken by the writ court. The remedy open to the appellant is to approach the civil court as rightly held by the learned Single Judge - there are no illegality or impropriety in the judgment impugned.
The writ appeal is dismissed.
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2023 (11) TMI 517
Cancellation of GST registration of petitioner - non-speaking order - requirement of valid SCN not fulfilled - violation of principles of natural justice - HELD THAT:- It is found that the fundamental defects in the procedure adopted by the respondent- authority. In the first place the notice dated 4.8.2022 was wholly non speaking. No fact allegation was made in that notice as may have allowed the petitioner any opportunity to furnish reply thereto. Mere recital of the statutory requirement without specifying the facts, may not fulfill the requirement of the valid show-cause notice. It was not made known to petitioner that his registration was proposed to be cancelled for reason of doubt as to existence of principal place of business.
The notice did not propose to grant real opportunity of hearing to the petitioner inasmuch as the issuing authority fixed the date for the proceeding on the next date itself.
The bar of statutory alternative remedy of appeal is waived in the peculiar facts of the present case. In face of such excessive gross fundamental defects, it is not a fit case to consider the issue of delay at this stage as may delay the enforcement of rules of natural justice, in the peculiar facts of this case.
Petition disposed off.
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2023 (11) TMI 516
Cancellation of registration under Central Goods and Service Tax Act - Attachment of bank account - SCN do not provide for any reasons for incurable defect - Violation of principles of natural justice - HELD THAT:- The show cause notice and order cancelling the registration clearly does not provide for any reason whatsoever for such action being taken against the petitioner and, therefore, there is an incurable defect in the order which cannot be improvised in the reply of the respondents - the order cancelling the registration ought to have contained reasons for the said cancellation of the registration and in the instant case, no such reason can be found in the order cancelling the registration - Insofar as the order cancelling the registration and show cause notice for such cancellation are concerned, the same is arbitrary and illegal.
Attachment of the bank accounts - HELD THAT:- The petitioner and the respondents are at ad idem that the petitioner should avail the remedy provided by sub-rule (5) of Rule 159 of the CGST Rules - It is opined that the petitioner needs to invoke sub-rule (5) of Rule 159 of the CGST Rules to the order of attachment in question as the rule itself would permit. Thus, in the facts and circumstances of the case, the discretionary jurisdiction under Article 226 of the Constitution of India not exercised to interfere in the impugned attachment order.
The impugned show cause notice dated 18th September, 2023 is quashed and set aside. The consequential order dated 5th October, 2023 cancelling the petitioner’s registration also would stand quashed and set aside - petition disposed off.
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