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GST - Case Laws

Showing 161 to 180 of 16293 Records

• 2025 (6) TMI 1244
  

  Challenge to order passed by the respondent for the AY 2019-20 and to quash the same - seeking consequential direction to the respondent to drop all proceedings initiated thereunder - non-service of SCN - petitioner was not aware of the show cause notice and failed to submit its reply - Violation of principles of natural justice - HELD THAT:- It is evident that the impugned show cause notice was uploaded on the GST Portal Tab and as the GST number of the petitioner was suspended, he could not login to the GST portal. According to the petitioner, the petitioner was not aware of the issuance of the show cause notice issued through the GST Portal and the original of the said show cause notice was not furnished to them. In such circumstances, this Court is of the view that the impugned assessment order came to be passed without affording any opportunity of personal hearing to the petitioner, confirming the proposals contained in the show cause notice.

  No doubt sending notice by uploading in portal is a sufficient service, but, the Officer who is sending the repeated reminders, inspite of the fact that no response from the petitioner to the show cause notices etc., the Officer should have applied his/her mind and explored the possibility of sending notices by way of other modes prescribed in Section 169 of the GST Act, which are also the valid mode of service under the Act, otherwise it will not be an effective service, rather, it would only fulfilling the empty formalities. Merely passing an ex parte order by fulfilling the empty formalities will not serve any useful purpose and the same will only pave way for multiplicity of litigations, not only wasting the time of the Officer concerned, but also the precious time of the Appellate Authority/Tribunal and this Court as well. Thus, when there is no response from the tax payer to the notice sent through a particular mode, the Officer who is issuing notices should strictly explore the possibilities of sending notices through some other mode as prescribed in Section 169(1) of the Act, preferably by way of RPAD, which would ultimately achieve the object of the GST Act.

  This Court finds that there is a lack of opportunities being provided to serve the notices/orders etc., effectively to the petitioner. Hence, this Court is inclined to set-aside the impugned order with conditions imposed - the matter is remanded to the respondent for fresh consideration.

  Petition disposed off by way of remand.

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• 2025 (6) TMI 1243
  

  Issuance of SCN u/s 74 of the Goods and Services Tax Act, 2017 - SCN issued without jurisdiction or not - none of the ingredients as required for issuance of notice under Section 74 of the Act are neither present nor have been alleged in the notice - HELD THAT:- This Court in the case of M/s Vadilal Enterprises Ltd. [2025 (6) TMI 1149 - ALLAHABAD HIGH COURT] wherein the same officer in identical circumstances had adopted the similar method i.e. while deciding the notice under Section 73 of the Act, finding paucity of time, left the issues undecided and issued notice under Section 74 of the Act held that 'A bare perusal of the language indicated therein clearly reflects that a reference to notice issued under Section 73 has been made and that the explanation filed, could not be verified and, therefore, further explanation was expected. The very fact that the respondents have sought further explanation and not a word has been indicated that the petitioner, inter alia has committed fraud, has given wilful misstatement or has suppressed material facts, which are the ingredients based on which provisions of Section 74 of the Act can be invoked necessarily shows lack of requisite ingredients in the notice.'

  The present case is squarely covered by order in the case of M/s Vadilal Enterprises Ltd.

  Conclusion - The impugned notice under Section 74 is without jurisdiction and is quashed and set aside

  The notice issued under Section 74 of the Act is quashed and set aside - petition allowed.

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• 2025 (6) TMI 1242
  

  Challenge to SCN and consequent order - vires of N/N. 56/2023- Central Tax dated 28th December, 2023 and N/N. 9/2023- Central Tax dated 31st March, 2023 as also N/N. 56/2023- State Tax dated 11th July, 2024 - HELD THAT:- A perusal of the impugned order reveals that the same has been passed by the adjudicating authority in a detailed manner and after consideration of all the facts and circumstances available before the authority. Hence, the same merits no interference of this Court.

  In the opinion of this Court, challenge to the impugned order, if any, shall be raised by the Petitioner before the appellate authority - Accordingly, the Petitioner is granted time till 15th July, 2025, to file an appeal before the appellate authority under Section 107 of the Central Goods and Service Tax Act, 2017.

  Petition disposed off.

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• 2025 (6) TMI 1241
  

  Challenge to order passed by the office of Sales Tax Officer Class II/AVATO (Sales Tax Officer) pursuant to the SCN issued by the Sales Tax Office - tax on outward supplies - availment of Input Tax Credit on account of non-reconciliation of information - no personal hearing was held - violation of principles of natural justice - HELD THAT:- On a perusal of the reply of petitioner, it is observed that very specific issues have been raised by the Petitioner, however, the same were not considered as the impugned order merely records that the reply is unsatisfactory.

  The impugned order is set aside. Let a personal hearing be afforded to the Petitioner - Petition disposed off.

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• 2025 (6) TMI 1240
  

  Challenge to order passed u/s 73 of the CGST /WBGST Act, 2017 - tax period April 2020 to March 2021 - proper officer had decided the SCN ex parte, without acceding to the petitioner’s request for adjournment and without affording the petitioner an opportunity of personal hearing - violation of principles of natural justice - HELD THAT:- Prima facie it would transpire that the aforesaid order has been passed de hors the provisions contained in Section 75(5) of the said Act. Admittedly, the show cause notice contemplates passing of an adverse order and having regard thereto, an opportunity of personal hearing ought to have been granted prior to taking a decision. In the instant case, the petitioner had sought for an adjournment of 20 days. The proper officer without considering the same had passed an order. The aforesaid is also de hors the provisions contained in Section 75(5) of the said Act which enables the petitioner to seek for an adjournment upon showing sufficient cause.

  The aforesaid order which is contrary to the statute also appears to have been passed in violation of principles of natural justice. The same is accordingly set aside and the matter is remanded back to the proper officer for fresh adjudication on merits upon giving an opportunity of hearing to the petitioner.

  Petition disposed off by way of remand.

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• 2025 (6) TMI 1239
  

  Rejection of appeal filed by the petitioner on the ground of limitation though the delay was marginal - ex-parte order - principles of natural justice - HELD THAT:- Noting that the scheme of the said Act provides for a multi tiered adjudicatory process and the Appellate Tribunal is yet to be constituted, no fruitful purpose will be served in keeping the writ petition pending especially when the adjudication order is an ex parte order and the petitioner’s case proceeds on the premise that the said ex parte order was passed without affording an opportunity of hearing to the petitioner and without considering the response filed by the petitioner, though the petitioner had filed a response in Form DRC 06 on 11th October, 2023.

  This apart ordinarily the appellate authority is far more equipped than this Hon’ble Court to decide factual aspects as all the records are available on the portal which can be accessed by the appellate authority.

  Having regard thereto, while setting aside the order dated 20th September, 2024 passed by the appellate authority under Section 107 of the said Act, matter remanded back to the appellate authority with the direction upon the appellate authority to hear out the matter and dispose of the appeal on merits by taking note of the response filed by the petitioner in response to the show-cause and by giving opportunity of hearing to the petitioner.

  Petition disposed off by way of remand.

  ---

• 2025 (6) TMI 1238
  

  Challenge to impugned order and impugned notice - initiation of proceedings u/s 73 of the Central/State Goods and Services Tax Act, 2017 (GST Act) against a company that has been dissolved pursuant to voluntary liquidation - non-application of mind - violation of principles of natural justice - HELD THAT:- It appears that respondent no. 2 has initiated proceedings against a dissolved company which is not tenable as M/s. Zeb IT Service Limited has already been dissolved with effect from 30/09/2022 which is duly recorded in the Orders-in-Original passed by respondent no. 2.

  The impugned orders passed by the respondents are without application of mind and contrary to the record being passed against the dissolved company which cannot be sustained.

  Conclusion - i) Proceedings initiated against a dissolved company are not tenable and cannot be sustained. ii) The impugned orders passed without application of mind and contrary to the record, being passed against a dissolved company, are hereby quashed and set aside.

  In view of above settled legal position, impugned orders are hereby quashed and set aside. Consequent recovery proceedings also therefore do not survive - Petition disposed off.

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• 2025 (6) TMI 1237
  

  Challenge to impugned order and summary of the order - availment of ineligible ITC from a fake/non-existent taxpayer - violation of provision of Section 16(2)(a) and Section 16 (2) (b) and Section 16 (2) (c) of the GST Act - time limitation - HELD THAT:- So far as the issues which are covered by the audit conducted by the State Tax Authorities are concerned and the issue which are considered in the impugned Order-in-Original are disputed questions of facts as there is no matching of the issue which was considered by the State Tax Authorities on perusal of the Order-in-Original passed for 2017-18 which is placed on record in the impugned Order-in-Original dated 31.12.2024. Therefore, it is not possible for this Court to consider the contentions of the Petitioner at this stage, the Petitioner wishes that the same can be considered by preferring an appeal challenging the impugned order under Section 107 of the GST Act.

  So far as the aspect of invocation of jurisdiction of the extended period is concerned, it is again the disputed question because the impugned order is dated 04.12.2024, whereas, the same is uploaded on 13.08.2024 and therefore, whether the said order can be said which is signed on 04.08.2024 is to be considered within the period of limitation as alleged by the Petitioner or not is also matter of examining the record. Therefore, in the facts of the case, without going into the merits of the matter and without referring to the decisions on merits as canvassed by learned advocate for the petitioner, the petition is not entertained at this stage with a liberty to the Petitioner to challenge the impugned Order-in-Original before the Appellate Authority as provided under Section 107 of the GST Act.

  Conclusion - i) The writ petition challenging the show cause notice and Order-in-Original under Section 74 of the CGST Act was dismissed. ii) The Petitioner was granted liberty to pursue statutory appeal under Section 107 of the CGST Act. iii) No interference was made with the impugned order on merits or limitation grounds at this stage.

  Petition disposed off.

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• 2025 (6) TMI 1236
  

  Levy of penalty u/s 129(1)(a) of the Central/State Goods and Services Tax Act, 2017 - goods classified as zero rated supply when no tax is payable on such supply - HELD THAT:- In the facts of the case, the petitioners after receiving the purchase order from the UAE, purchased the goods from Gurugram through its sister concern so as to export the same to UAE and therefore the goods in questions are meant for export outside India.

  As per Section 2(47) of the Act, a supply is said to be exempt when it attracts Nil rate of duty or specifically exempted by notification or kept out of the purview of the levy of tax i.e. non GST supply, however, if the goods or services exempted from payment of tax, same would not become a zero rated supply because the inputs which are used for making the goods for manufacture of the goods or providing services had already suffered a tax and only the final product is exempt and when the goods are exempted goods, the assessee is not entitled to avail or utilize credit on inputs used for supply of the exempted goods or services only because the goods which are exported suffers no tax and inputs have suffered the tax the availment of tax on input side is not permitted which become the cost for the supplier. Therefore, the zero rated supply is only remedy to such anomaly.

  Section 16 (4) of the IGST Act provides for refund as per the provision of Section 54 of the CGST Act of the inputs or inputs services which are used for the purpose of zero rated supply as per the provisions of Section 54 (3) and the assessee is entitled to get the refund if the IGST is paid along with the export or if no tax is paid and the goods are exported under LUT then proportionate credit is given in the electronic credit ledger. Therefore, considering the scheme of the GST Act and the Rules, the zero rated supply is admittedly not an exempted supply and it has the same meaning as assigned to Section 16 of the IGST Act and no tax in outward supplies is payable, however, the credit of input tax is provided for making zero rated supplies even if such supply is an exempt supplies by adding the value of zero rated supply along with the taxable supplies for apportionment of such input tax credit.

  Though the tax is leviable as per the provision of Section 17 (1) on the interstate supply as per Section 7 of the IGST Act, and the goods which are exported outside India is to be treated as interstate supply, as per provision of the Section 16 (1) of the IGST Act, the same would be zero rated supply and the exporter is not liable to pay any tax on such supply. Therefore, no tax is payable on the zero rated supply though leviable as per provision of the IGST Act and therefore, the option is given to the petitioner assessee either to give an undertaking or to pay tax which is adjusted by way of credit ledger or refunded as per Rule 89 and/or Rule 96 of the CGST Rules, 2017.

  Impugned order dated 19/11/2024 passed in Form GST MOV-9 is hereby modified by reducing the penalty to Rs.25,000/- only and the respondents are directed to release the bank guarantee submitted by the petitioners for release of the goods and conveyances after impugned order was passed - As the petitioners have suppressed the relevant facts of placing the order through its sister concerns which was subsequently sought to be amended is also not appreciated and the petitioners are also liable to pay cost of Rs. 10,000/- for each petition to the respondents for such suppression.

  Conclusion - i) The penalty imposed under Section 129(1)(a) at 200% of tax payable on zero rated supply was quashed and reduced to Rs. 25,000/-. ii) The bank guarantee furnished by the petitioners shall be released. iii) Costs of Rs. 10,000/- per petition imposed on petitioners for suppression of facts.

  Petition disposed off.

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• 2025 (6) TMI 1235
  

  Challenge to SCN - SCN challenged by the petitioner, on various grounds, including the ground that the said proceedings did not contain a DIN number - HELD THAT:- The question of the effect of non-inclusion of DIN number on proceedings, under the G.S.T. Act, came to be considered by the Hon'ble Supreme Court in the case of Pradeep Goyal Vs. Union of India & Ors [2022 (8) TMI 216 - SUPREME COURT]. The Hon'ble Supreme Court, after noticing the provisions of the Act and the circular issued by the Central Board of Indirect Taxes and Customs, had held that an order, which does not contain a DIN number would be non-est and invalid.

  Division Bench of this Court in the case of Sai Manikanta Electrical Contractors Vs. The Deputy Commissioner, Special Circle, Visakhapatnam [2024 (6) TMI 1158 - ANDHRA PRADESH HIGH COURT], had also held that non-mention of a DIN number would require the order to be set aside.

  In view of the aforesaid judgments and the circular issued by the C.B.I.C., the non-mention of a DIN number in the show-cause notice, which was uploaded in the portal, requires the impugned show-cause notice to be set aside.

  This Writ Petition is disposed of, setting aside the impugned proceedings, dated 26.03.2025, issued by the 1st respondent, with liberty to the 1st respondent to conduct fresh assessment, after giving notice to the petitioner and assigning a DIN number to the said show-cause notice and any consequential order. As the show-cause notice has been set aside, even the provisional suspension would stand revoked.

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• 2025 (6) TMI 1234
  

  Requirement to obtain a registration in the state of Tamilnadu, under the CGST Act, which squarely gets covered under Section 97 (2) (f) of the CGST Act, 2017 - applicant is engaged in trading of pharmaceutical rubber stopper products and importing such goods through a Free Trade Warehousing Zone (FTWZ) unit located in Tamil Nadu - HELD THAT:- As per the nature of services being provided to the applicant by M/s. DHL Logistics Private Limited, a logistics service provider (LSP) which is a unit of FTWZ, it is clear that the basic activity of a FTWZ unit is warehousing of the goods belonging to its client. Further, the definition of FTWZ as per Section 2(n) of the Special Economic Zones Act, 2005, carries the phrase “wherein mainly trading and warehousing and other activities related thereto are carried on.”, confirms the fact that warehousing is one of the most important activity undertaken by an unit in FTWZ.

  Special Economic Zones are deemed to be considered as ports, airports, inland container depots, land stations, outside the Customs territory of India, under Section 7 of the Customs Act, 1962, which deals with the appointment of ports, airports, etc. Hence, it is a deemed territory outside the Customs territory of India.

  A combined reading of the above provisions shows that Free Trade Warehousing Zone (FTWZ) is part of SEZ scheme and it is a Customs bonded warehouse. Warehousing of goods that are imported without payment of appropriate Customs duties are carried out in these zones. SEZ is a specifically delineated duty free enclave which is deemed to be a foreign territory for the purposes of trade operations and duties and tariffs. Normally, the applicant imports goods and stores them in FTWZ till he finds a local customer who will purchase the goods and such purchaser clears the goods under the provisions of the Customs Act. In other words, the goods would become exigible to tax under the domestic enactments only when they are cleared and supplied to DTA from FTWZ for home consumption.

  Even before the amendment to Schedule III of the CGST Act, 2017, the legal position was that the supply of goods before their clearance from the warehouse would not be subject to the levy of Customs duty or integrated tax and that the same would be levied and collected only when the warehoused goods are cleared for home consumption from the customs bonded warehouse.

  Accordingly, once it is clear that the activity of the applicant involved in the instant case, i.e., sale of goods lying in the FTWZ warehouse before clearance for home consumption, are not be treated as ‘Supply’, the question of payment of Customs duty and IGST on the said transaction does not arise at all - the legal position even before the insertion of clause (a) of Para 8 of the Schedule III to the CGST Act, 2017, in the year 2018, was that the supply of goods before their clearance from the warehouse would not be subject to the levy of Customs duty or integrated tax and that the same would be levied and collected only when the warehoused goods are cleared for home consumption from the warehouse.

  The GST registration reported to have been obtained by the applicant in the state of Telengana would be sufficient enough to take care of tax compliances, if any, that may arise due to clearance of imported goods into DTA, suo-moto by the applicant. Other than the said activity, since no liability to pay IGST by the applicant arises while making sale of goods lying in the FTWZ warehouse to any customer (before clearance for home consumption), the requirement of a registration under Section 22 of the CGST Act, 2017 for this purpose, in the state of Tamilnadu where the port of clearance is located, does not arise.

  Conclusion - The applicant is not required to obtain a separate registration under GST in the state of Tamil Nadu, as per Section 22 of the CGST Act for the operations undertaken from the FTWZ unit at Chennai, Tamilnadu.

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• 2025 (6) TMI 1233
  

  Levy of GST - sale of land under Item No. 5 of Schedule III of the CGST/TNGST Act or not - Execution of a Sale Deed by the landowner for the undivided share of land (UDS) area, including the built-up area constructed by the applicant - HELD THAT:- In the instant case, the Joint Development Agreement between the landlord and the developer-promoter is dated 22nd Nov, 2023 and therefore the various situations described in the notification shall be applicable to the applicant and accordingly appropriate GST has to be paid by them to the government on both the transactions with landowner (handing over of 2 flats as mentioned in the JDA) as well as with the prospective buyers if the said transactions are before the issuance of completion certificate or before the date of first occupation of any of the residential units. The applicant is very clear on the applicability of GST on the flats handed over to the landlord or sold to the prospective buyers. However, with the issuance of G.O.Ms. NO.131, Commercial Tax and Registration Department (I) dated 01.12.2023 the applicant contends that the composite value which is the component of the value of land and building for the purpose of registration and stamp duty charges is sle of land and therefore claimed that their activity shall be treated neither as supply of goods nor as a supply of service in terms of item No. 5 of Schedule-III of the CGST/TNGST Act, 2017.

  While the applicant is very clear about the time of supply of service, the query is about the taxability of the composite value of land (UDS) and residential unit as appropriate stamp duty and registration charges have been paid by them on the composite value as per the new norms introduced by the Registration department of the State government. Therefore the applicant is contending that there is sufficient ground for them to claim exclusion as ‘sale of land’ under item No. 5 of Schedule-III of the Act.

  The applicant is a builder promoter and their activity falls within the Serial No.3 (ia) of N/N. 11/2017, Central Tax (Rate), dated 28.06.2017 as amended vide N/N. 3/2019, Central Tax (Rate), dated 29.03.2019, which attracts levy of GST.

  The execution of the sale deed by the land owner for the undivided share of land area is a critical determinant in establishing whether the transfer of land qualifies as an independent transaction. If such execution is completed before or independent of the construction activity undertaken, the exclusion of the land value from GST liability shall be substantiated. For a composite contract where consideration is not bifurcated, GST is liable to be paid on the entire transaction value, subject to one third deduction of land value. After the introduction of new norms read with the circular, if the composite value of the project is considered for registration of residential units as part of single agreement, where land cost and construction cost cannot be vivisected, GST would apply on the transaction value post deduction of land value.

  The applicant’s claim of exclusion of entire value of both UDS and the area including the built up area as ‘Sale of land’ resulting in non-liability in their hands on the construction of built up area to the buyers for the sale of apartment that were allocated to them as per the Joint Venture Development Agreement does not fall under Item No.5 of Schedule III of the CGST Act / TNGST Act.

  Conclusion - The applicant’s claim of exclusion as sale of land for the Sale Deed executed by the landowner for the UDS area including the built up area constructed by the applicant resulting in non-liability in their hands on the construction of built up area to the buyers for the sale of apartment that were allocated to them as per the Joint Venture Development Agreement does not fall under Item No.5 of Schedule III of the CGST Act / TNGST Act.

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• 2025 (6) TMI 1232
  

  Entitlement to avail ITC - import IGST paid through TR-6 Challan in terms of Section 16 (2) of the CGST Act read with rule 36 of CGST Rules - import IGST paid vide TR-6 Challan is subject to the time limit prescribed under Section 16 (4) of the CGST Act or not - import IGST paid vide re-assessed bill of entry is subject to the time limit prescribed under Section 16 (4) of the CGST Act or not - time limit for availing ITC would begin from the initial date of bill of entry originally filed or from the date of re-assessment of bill of entry or not.

  Whether the applicant can avail Input Tax Credit (ITC) of import IGST paid through TR-6 Challan under Section 16(2) of the CGST Act read with Rule 36 of the CGST Rules? - HELD THAT:- A TR-6 challan cannot be considered as a document for the purpose of availment of ITC in the present GST scenario. It is to be noted that under the pre-GST era, Rule 9 of the CENVAT Credit Rules, 2004, challans were indeed identified as documents for the purpose of availment of credit. Whereas, in present scenario involving GST, the challan or TR-6 challan, as the case may be, is conspicuously absent in the list of documents prescribed for availment for ITC under Rule 36 of the CGST Rules, 2017.

  The applicant ought to have resorted to Bill of Entry-wise re-assessment, which in turn could have paved the way for a seamless availment of ITC based on the bills of entry which figures as one of the prescribed and a legally valid document for availment of ITC. Under the circumstances of the instant case, it is unable to comment on the aspect relating different assessment practices reportedly adopted by the respective Customs formations, viz., Chennai Sea Customs, Air Cargo Customs and J Matadee FTWZ, as the same is beyond the purview of the Authority for Advance Ruling, and it is the look-out of the applicant to get the Bill of Entry-wise re-assessment done with the respective Customs authorities. Accordingly, neither a TR-6 challan as such, nor a TR-6 challan read with the SVB order and letters issued by the tax authorities, as claimed by the applicant can be considered as an eligible document for the purpose of availment of ITC.

  Whether the eligibility to avail ITC of the import IGST paid vide TR-6 Challan is subject to the time limit prescribed under Section 16 (4) of the CGST Act? - HELD THAT:- This query need not be answered, having already held that TR-6 challan as such, or a TR-6 challan read with the SVB order and letters issued by the tax authorities, cannot be considered as an eligible document for the purpose of availment of ITC.

  Whether the eligibility to avail ITC of the import IGST paid under the re-assessed bill of entry is subject to the time limit prescribed under Section 16 (4) of the CGST Act? - HELD THAT:- Section 16 (4) of the CGST Act, 2017 prescribes the time limit for availment of ITC, discusses only about an invoice or a debit note, without making reference to any other document. However, it may be seen that apart from a tax invoice and a debit note, the provisions of Section 16 (2) of the CGST Act, 2017, recognises ‘such other tax paying documents as may be prescribed’ as well - Accordingly, the ‘Bill of Entry’ figures as one of the prescribed document for the purposes of availment of ITC, under rule 36 (1) (d) of the CGST Rules, 2017. As a result, availment of ITC based on a ‘Bill of entry’ becomes eligible to the applicant, irrespective of the fact whether it is re-assessed or original. However, it is to be noted that if the re-assessment happens to be a fall-out of an audit or an anti-evasion operation involving fraud, wilful misstatement, suppression of facts, etc., an embargo exists in relation to ITC availment on the same, as provided under Rule 36 (3) of the CGST Rules, 2017.

  The provisions of 16 (4) of the CGST Act, 2017 that prescribes the time frame for availment of ITC refers just to an invoice or a debit note, in view of the fact that the levy enabled under Section 9 of the Act, ibid, is only in respect of intra-state supplies of goods or services or both. Further, it is to be noted that only an invoice or a debit could be related to an intra-state supply, and not a ‘Bill of Entry’ which is relatable only to import of goods involving payment of taxes under IGST, and which document does not relate to intra-state supplies in any manner whatsoever - by virtue of Section 20 of the IGST Act, 2017, whereby the provisions of CGST Act, 2017, becomes applicable ‘mutatis mutandis’ in relation to Integrated tax, it is inferred that the time limit prescribed under the provisions of Section 16 (4) of CGST Act, 2017, applies in equal measure to the availment of ITC based on a Bill of Entry’ in relation to Integrated taxes, as much as it applies to availment of ITC based on an invoice or debit note in relation to Central tax.

  The time limit prescribed under Section 16 (4) of the CGST Act, 2017, has been structured in such a way that no ITC could be availed “after the thirtieth day of November following the end of financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier”. The aforesaid style of phrasing is peculiar to this provision, as compared to various other provisions of the Act, ibid, where the time limit is expressed in simple terms, like 30 days, 90 days, 180 days, three months, three years, five years, etc. Whereas, the time limit for availing ITC is ideally fastened to the furnishing of annual return, or with a specific day, viz., the thirtieth day of November following the end of financial year, which indicates that the entire scheme of ITC availment which starts with the periodical monthly returns, should come to an end by the time the annual return is filed, or finalised by the thirtieth day of November following the end of financial year, whichever is earlier - availment of ITC on the basis of a ‘bill of entry’, whether original or re-assessed, is governed by the time limit as prescribed under Section 16 (4) of the CGST Act, 2017.

  Whether the time limit for availing ITC would begin from the initial date of bill of entry originally filed or from the date of re-assessment of bill of entry? - HELD THAT:- If the payment of differential duties of customs is a fall-out of the SVB order and letters issued by the tax authorities, as discussed in the instant case, we reckon that the time limit for availing ITC would ideally begin from the date of re-assessment of bill of entry, as the payment of differential duties of customs including IGST, interest thereon, etc., is necessitated only when an upward price revision takes place at a later date.

  Conclusion - i) Neither a TR-6 challan as such, nor a TR-6 challan read with the SVB order and letters issued by the tax authorities, as claimed by the applicant in the instant case can be considered as an eligible document for the purpose of availment of ITC. ii) As TR-6 challan cannot be considered as an eligible document for the purpose of availment of ITC, the question of answering this query does not arise. iii) Availment of ITC on import IGST on the basis of a re-assessed bill of entry, is very much governed by the time limit as prescribed under Section 16 (4) of the CGST Act, 2017. iv) The time limit for availing ITC on the differential IGST paid would begin from the date of re-assessment of bill of entry.

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• 2025 (6) TMI 1156
  

  Validity of of Rule 96 (10) of the Central/State Goods and Services Tax Rules, 2017 as substituted by the Central Goods and Services Tax (12th Amendment) Rules, 2018 with effect from 9.10.2018 - refund of actual amount of excise duty so paid on the goods exported under Rule 18 of the Central Excise Rules, 2002 - breach of fundamental rights under Articles 14, 19 (1) (g) of the Constitution of India - Effect of a change in the law between a decision at first instance and the hearing of an appeal from that decision - Principles of statutory interpretation - retrospective Or Prospective operation of the statute - Effect of repeal - Provisions of the General Clauses Act vis-a-vis the repeal or omission or implied repeal.

  Whether Notification No. 20/2024 dated 8th October, 2024 whereby Rule 96 (10) has been omitted with effect from the date of notification would be applicable retrospectively or not? - HELD THAT:- On coming into force of the Rule 96 (10), the refund claims of the petitioners for IGST paid on export of goods or services were denied even if the petitioners had utilised only a small portion of the inputs imported without payment of custom duty under Advance Authorisation License. Being aggrieved, the petitioners have challenged vires of Rule 96 (10) in this group of petitions - The GST Council in its 54th meeting recommended to omit Rule 96 (10), Rule 89 (4A) and Rule 89 (4B) of the CGST Rules, 2017 prospectively to simplify and expedite the procedure for refund in respect of exports considering the difficulties being faced by the exporters due to the restrictions in respect of refund on exports in cases where benefits of specified concessional/exemption notification is availed on the inputs.

  On perusal of the Central Goods and Services Tax (Second Amendment) Rules, 2024, it appears that whenever amendment in various rules prescribed therein is to come into effect from a particular date, such date is mentioned in rules - Similarly, in Rules 3, 4, 6, 7, 8, 11 and 12 of the said Rules,2024, it is stipulated that the said rules shall be inserted with effect from 1st day of November, 2024. Therefore, except Rules 2, 9 and 10, effective date of applicability of amendment in various Rules of CGST Rules is provided whereas amendment in Rule 36(3), Rule 89 and Rule 96 (10), no such effective date is provided. Therefore, as per Rule 1(2) of the Rules, 2024, such Rules comes into force on the date of publication in the Official Gazette i.e. 8th October, 2024 meaning thereby Rules 2, 9 and 10 of the Rules, 2024 would come into effect from 8th October, 2024.

  The fact remains that Rule 96 (10) of the CGST Rules has been recommended to be omitted by GST Council prospectively to remove the difficulties of the exporters in claiming refund of the IGST paid on export of goods on account of four exemption notifications from payment of duty for importation of the inputs utilised for manufacture of goods to be exported - Sub-rule(2) of Rule 1 of the Rules, 2024 clearly stipulates that the rules save as otherwise provided in the said rules, shall come into effect on the date of the publication in the Official Gazette i.e 8th October, 2024.

  Reliance placed on behalf of the petitioners in case of CIT, Kolkatta v. Calcutta Export Company [2018 (5) TMI 356 - SUPREME COURT] as to whether omission of Rule 96 (10) by Rules, 2024 is curative in nature and therefore, should be applied retrospectively i.e. from the date of insertion of the said rule from 9th October, 2018 is also required to be applied to the facts of the case because the Rules, 2024 clearly stipulates for applicability from the date of publication in Official Gazette in consonance with the recommendation of the GST Council to omit Rule 96 (10) of the CGST Rules, 2017 prospectively. It cannot be said that omission of Rule 96 (10) is curative or remedial because, by omission it affects substantive rights of the assessee to claim refund of IGST paid on export of goods when duty free inputs are utilised. If the omission of Rule 96 (10) is to be applied with retrospective effect, the Rules,2024 would have stipulated but even the GST Council has recommended omission of Rule 96 (10) with prospective effect. Such recommendation is binding upon the Government.

  Whether Notification No. 20/2024 whereby Rule 96 (10) of the CGST Rules has been omitted with effect from 8th October, 2024 would be applicable to the proceedings including this group of petitions which are pending before the Court or any other proceedings which are pending before the respondents or not? - HELD THAT:- The Hon’ble Apex Court in case of Fibre Boards Private Limited, Bangalore v. Commissioner of Income Tax, Bangalore [2015 (8) TMI 482 - SUPREME COURT] while considering the applicability of the aforesaid provisions of the General Clauses Act vis-a-vis the repeal or omission or implied repeal regarding conditions laid down in section 54G of the Income Tax Act, 1961 has held that 'At this stage, it is important to note that a temporary statute does not attract the provision of Section 6 of the General Clauses Act only for the reason that the said statute expires by itself after the period for which it has been promulgated ends. In such cases, there is no repeal for the reason that the legislature has not applied its mind to a live statute and obliterated it. In all cases where a temporary statute expires, the statute expires of its own force without being obliterated by a subsequent legislative enactment. But even in this area, if a temporary statute is in fact repealed at a point of time earlier than its expiry, it has been held that Section 6 of the General Clauses Act would apply.'

  In view of the above decision rendered by the Apex Court, “omission” would be included in the interpretation of word “repeal” and hence omission of Rule 96 (10) with effect from 8th October, 2024, would amount to repeal without any saving clause. General Clauses Act, 1897 is largely based on the English Interpretation Act, 1889 and according to such law, the effect of repealing a statute was to obliterate it completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. Therefore, repeal without any saving clause would destroy any proceeding whether or not yet begun or whether pending at the time of enactment of the repealing Act and not already prosecuted to a final judgment so as to create a vested right.

  The recommendations of the GST Council to omit Rule 96 (10) prospectively would apply to all the pending proceedings and cases - By N/N. 20/2024 Rules, 2024 have been notified and as per Rule 10 of the said Rules, Rule 96 (10) of the CGST Rules has been omitted with prospective effect. This would give rise to three situations, firstly, whether the same would be applicable retrospectively, or secondly, prospectively or thirdly, same would be applicable prospectively but also to “pending proceedings”. As discussed here-in-above, Rule 10 of Rules, 2024 is applicable prospectively and the same also would be applicable to pending proceedings.

  N/N. 20/2024 dated 8th October, 2024 would be applicable to all the pending proceedings/cases meaning thereby that Rule 96 (10) would stand omitted prospectively but applicable to pending proceedings/cases where final adjudication has not taken place - the omission of Rule 96 (10) would apply to all the proceedings/cases/ petitions which are pending for adjudication either before this Court or before the respondent adjudicating authority and no further proceedings are required to be carried forward and petitioners would be entitled to maintain refund claims of IGST paid on export of goods.

  Conclusion - The omission of Rule 96 (10) would apply to all the proceedings/cases/ petitions which are pending for adjudication either before this Court or before the respondent adjudicating authority and no further proceedings are required to be carried forward and petitioners would be entitled to maintain refund claims of IGST paid on export of goods.

  The petitions therefore succeed in view of applicability of N/N. 20/2024 whereby Rule 96 (10) is omitted and the said Notification would be applicable to all the pending proceedings/cases as on 8th October, 2024. The impugned show cause notices and the orders-in-original are therefore, quashed and set aside - Petition allowed.

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• 2025 (6) TMI 1155
  

  Imposition of GST - Superior Kerosene Oil - HELD THAT:- It appears that the grievance with regard to the imposition of GST was considered by the GST Council in its meeting held on 20th September, 2019. It appears that the Superior Kerosene Oil for Public Distribution System presently attracts the GST rate of 5% otherwise would have been 18%. This reduction in the rate of GST has been considered by an expert committee constituted for considering the GST rates in respect of various items. It appears that the imposition of GST would have a very negligible impact on the final price of the kerosene oil per liter.

  It is not required to interfere with the order of the GST Council - the writ petition and the application are disposed of.

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• 2025 (6) TMI 1154
  

  Challenge to GST assessment order - order passed against the dead person - HELD THAT:- Since the impugned order has been passed the against the dead person and his son may have an interest in the business of the deceased assessee, namely M. John Bosco, the impugned order is set aside and the case is remitted back to the respondent to pass fresh orders on merits and in accordance with law as expeditiously as possible preferably within a period of three (3) months from the date of receipt of a copy of this order.

  Petition disposed off.

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• 2025 (6) TMI 1153
  

  Seeking grant of bail - Fraudulent availment and passing of Input Tax Credit (ITC) without actual receipt of goods - HELD THAT:- Upon perusal of the case records, including the Preliminary Report, E-way bill records, GSTR filings, and statements of officials of the Directorate General of GST Intelligence (DGGI), this Court is of the considered view that the allegations, although at the stage of investigation, are serious in nature, involving an organized and deliberate scheme to defraud the exchequer through fraudulent availment and passing of Input Tax Credit (ITC).

  It is pertinent to note that the offence under Section 132 (1) (b), 132 (1) (c), and 132 (1) (f) of the CGST Act, 2017 pertains to issuance and use of fake invoices without actual supply of goods or services, which has a direct bearing on public revenue and financial integrity of the nation. These offences, if the amount exceeds Rs. 5 crore, are categorized as non-bailable and cognizable under Section 132 (5) of the Act. In the present case, the quantum of wrongly availed ITC is over Rs. 11.97 crore, clearly crossing the statutory threshold for denial of bail at the threshold stage.

  The Petitioners’ claim that they are permanent residents and unlikely to abscond is noted. However, risk to the process of investigation is not only about physical disappearance. It includes the ability to influence data, coordinate narratives, and weaken the evidentiary foundation in subtle ways. In financial cases of this nature, control over systems or knowledge of procedural gaps can be just as critical.

  This Court is conscious of the principle that pre-trial detention should not be punitive. However, in matters involving substantial public funds and systemic breach of trust, restraint is warranted. The gravity of allegations, the scale of suspected financial irregularities, and the ongoing nature of the investigation collectively suggest that this may not be the appropriate stage to extend the relief sought.

  Conclusion - i) The prima facie case against the petitioners for fraudulent availment and passing of ITC without actual receipt of goods is established by documentary and electronic evidence, including significant discrepancies in tax returns and absence of physical movement of goods.

  Both the BLAPLs are, accordingly, dismissed.

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• 2025 (6) TMI 1152
  

  Seeking waiver of pre-deposit as mandated under Section 107(6) of the CGST Act, 2017, for filing an appeal against four orders - HELD THAT:- In terms of Section 107 of the CGST Act, 2017 and after perusing the facts where the allegations are of fraudulent availment of ITC and supply of goods-less invoices, the Court is not inclined to waive the pre-deposit.

  Petition is dismissed.

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• 2025 (6) TMI 1151
  

  Services being rendered by the Petitioner would constitute exports or not - hosting data services provided by a service provider located in India - HELD THAT:- It is deemed appropriate that instead of entertaining the challenge in these writ petitions, the Appellate Authority shall reconsider the impugned orders once again in light of the Appellate Authority’s order dated 31st December, 2024 and 1st January, 2025 as also the Circular No. 232/26/2024-GST dated 10th September, 2024. Clearly, the impugned orders which are challenged before this Court were passed prior to the Orders-in-Appeal dated 31st December, 2024 and 1st January, 2025 which are relied upon by the Petitioners.

  The impugned Orders-in-Appeal are set aside. The matters are remanded to the Commissioner (Appeals) for reconsideration - petition allowed by way of remand.

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• 2025 (6) TMI 1150
  

  Cancellation of GST registration of the Petitioner with retrospective effect from 01^st July, 2017 - it is the grievance of the Petitioner that the said revocation application is not being decided and the personal hearing has not been granted till date - HELD THAT:- Considering that the revocation application is pending, let a personal hearing be now granted to the Petitioner and the notice be served - After affording Petitioner a personal hearing, the revocation application shall be decided within two months by the concerned Adjudicating Authority.

  The petition is disposed of.

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