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Showing 261 to 280 of 1658 Records
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2024 (10) TMI 1398
Refund of unutilized CESTAT credit - no appeal lies against the order dated 6 November 2023, by which the Appellant’s application for rectification came to be rejected - HELD THAT:- The learned counsel for the Appellant relied on Lav Kush Textile [2017 (5) TMI 1021 - RAJASTHAN HIGH COURT] to contend that relief was granted by the Division Bench of the Rajasthan High Court on identical facts. On considering Lav Kush Textile, it is found that the same has relied upon the decision of the Karnataka High Court in Slovak India [2006 (7) TMI 9 - KARNATAKA HIGH COURT]. Further, this decision notes that the Hon’ble Supreme Court had confirmed the Karnataka High Court order by dismissing the SLP against the same. In effect, therefore, the view taken in Lav Kush Textile based, according to the learned counsel for the Appellant on facts identical to the present case, directly conflicts with the view taken by the Full Bench of this Court in the case of Gauri Plasticulture [2018 (4) TMI 1233 - BOMBAY HIGH COURT].
There are no error in the impugned orders made by the CESTAT, since these orders relied upon the decision of the Full Bench in the case of Gauri Plasticulture. Even considering the slight difference in the factual positions, it is difficult to hold that the ratio in the case of Gauri Plasticulture is not attracted or would not cover the Appellant’s case.
The impugned orders made by the CESTAT are not error-prone and that no substantial question of law arises in this appeal - Appeal dismissed.
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2024 (10) TMI 1397
Recovery of short paid service tax - time limitation - appeal has been preferred beyond the period of 1325 days - HELD THAT:- It is not in dispute that after service of the impugned order dated 31.03.2017, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the period of 1325 days. Admittedly, the impugned order dated 31.03.2017 was received by the petitioner. The appeal has been preferred on 13.01.2021 beyond the period of 1325 days.
This Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders as the application of limitation does not apply to section 35 Central Excise Act.
The Apex Court, after considering the judgement of ITC Limited [1990 (8) TMI 173 - SUPREME COURT], in the case of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] has specifically held 'Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.'
Thus, it has been held that the delay cannot be condoned beyond the period what is prescribed under the respective Act as the language of the section specifically provides for condonation of delay of additional period mentioned therein only.
Further, since the petitioner has equally, efficacious alternative remedy of filing an appeal under section 35-G of the Central Excise Act before the Division Bench of this Court, writ petition before the Single Judge is not maintainable.
Petition dismissed.
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2024 (10) TMI 1396
CENVAT Credit - input service or not - denial on the ground that expression “Setting up” has been deleted from the inclusive clause of the definition w.e.f. 01/04/2011 and since no goods were manufactured or removed prior to 24/11/2015, the impugned services do not qualify to be input service - HELD THAT:- From the definition of Input Service, it is clear that except the services mentioned in the exclusion clause all the services which are used in or in relation to the manufacture of final product and clearance of goods upto the place of removal are admissible input service.
As regard the use of service, there is no dispute that those services were used in or in relation to the manufacture of the final product. As regard the contention of the revenue that “setting up of factory” has been removed from the inclusion clause, in our view the removal of from “setting up of factory” will not make any difference because the inclusive portion is not additional service but it is only clarificatory out of all the services covered in main clause. Therefore, even if it is removed from the inclusion clause so long it is used in or in relation to the manufacture of final product, all the services are admissible input service.
On perusal of the exclusion clause of the definition, it is found that none of the services which are subject matter in the present appeal is falling in the exclusion clause. Therefore, there are no hesitation to hold that all the services are admissible input service and Cenvat credit is admissible.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1395
Determination of date of filing of Refund Application - Refund in respect of the duty paid by their Daman unit (appellant) which is liability of their Halol unit - mistake has occurred due to error of ERP system which is meant for all the group units - computation of time period of one year provided under Section 11B for refund of duty should be computed as on date of first time of filing of refund or on the date of second time filing of refund after return of the refund by the department - time limitation - HELD THAT:- As regard the admissibility of the refund there is no dispute that the duty liability of halol unit was paid by the appellant’s Daman unit due to error in the ERP system. Therefore, the duty paid in access by the appellant unit is clearly refundable to them in principle.
Somewhat identical issue has been considered by the Hon’ble Gujarat High Court in the case of Auro Pumps Private Ltd [2017 (7) TMI 24 - GUJARAT HIGH COURT] wherein Hon’ble Court after considering the identical facts, where it was held that 'this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of Rs. 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002. All the communications and order, which are impugned in the petition are hereby quashed and set aside.'
Time limitation - HELD THAT:- There is no dispute that the appellant have initially filed the refund claim within one year from the relevant date, it is only after the department raised some discrepancies, the appellant have re-filled the refund second time. Therefore, in this fact the date of first time filing of the refund has to be considered as date of filing of refund application which is well within the time. Therefore, the refund is not time barred in the facts of the present case.
It is settled that date of first time filing of refund shall be taken as date of filing of refund even though the refund application was returned and subsequently the same is re-filled at a later date. Accordingly, in the identical facts in the present case applying the ratio of above judgments, the refund is not time barred.
The Appellants have challenged the said Order in Appeal on the grounds that the Ld. Commissioner (Appeals) has no power to remand and also on the merits of the matter - the issue on Ld. Commissioner (Appeals) has power to remand the matter or not, this Tribunal in catena of judgments considering the amendments in Central Excise Act, 1944, held that Commissioner (Appeals) has power to remand the matter.
The impugned orders are set aside - Appeal allowed.
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2024 (10) TMI 1394
Medical negligence of the doctor - deterioration of patient's condition due to neglugence of Doctor or otherwise? - HELD THAT:- A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him.
In Jacob Mathews [2005 (8) TMI 621 - SUPREME COURT] this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence. The complainant has not adduced any evidence to establish that Dr. Neeraj Sud or the PGI were guilty of not exercising the expertise or the skill possessed by them, so as to hold them liable for negligence. No evidence was produced of any expert body in the medical field to prove that requisite skill possessed by Dr. Neeraj Sood was not exercised by him in discharge of his duties.
Simply for the reason that the patient has not responded favourably to the surgery or the treatment administered by a doctor or that the surgery has failed, the doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties.
The NCDRC ought not to have interfered with the findings and the impugned judgment and order of the State Commission so as to hold the doctor of the PGI negligent and to award compensation - the judgment and order dated 24.08.2011 of the NCDRC is hereby set aside and that of the State Commission is restored. Since the complainants have failed to prove any negligence on part of the doctor or the PGI, they are not entitled to any compensation as such, no question arises for its enhancement.
Appeal disposed off.
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2024 (10) TMI 1393
Extension of time for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The period during which the interim order passed by this Court was in operation, will be excluded for the purpose of computation of the period for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996.
Applications disposed off.
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2024 (10) TMI 1392
Cancellation of registration of petitioner - petitioner, on account of illness of his daughter, was unable to file the requisite returns - no opportunity of hearing was provided to the petitioner - violation of principles of natural justice - HELD THAT:- A look at the provisions of Section 30 of GST Act, 2017 reveals that proviso to sub-section (2) provides that the application for revocation of cancellation of registration shall not be rejected unless the applicant has been given an opportunity of being heard.
In the present case, no order has been passed by the respondents on the application seeking the revocation and in those circumstances, it would be required of the respondents to give an opportunity of hearing to the petitioner and pass an order on the pending application of the petitioner.
Petitioner would be free to file a fresh, detailed application if so advised. The requisite order would be passed within a period of three weeks from the date a copy of this order is placed by petitioner with the competent authority/a representation is filed by the petitioner, whichever is earlier - Petition disposed off.
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2024 (10) TMI 1391
Rejection of refund claim - lack of opportunity for a personal hearing as required by Rule 92(3) of the CGST Rules, 2017 - violation of principles of natural justice - HELD THAT:- The show causes issued to the Petitioner gave the Petitioner 15 days to respond. Accordingly, they did respond by 17 April 2024. Therefore, it is rather incomprehensible how a hearing was allegedly given on 8 April 2024. The Petitioner has denied that any hearing was ever given. The show cause notice had also stated that the date and time of the hearing would be intimated to the Petitioner. There is no clear evidence of such intimation. In any event, proviso to Rule 92 (3) of the CGST Rules, 2017, contemplates reasonable opportunity to be heard, implying that such hearing should be after the Petitioner files the reply within the time prescribed in the show cause notice.
The impugned refund rejection orders are in breach of the requirements of Rule 92 (3) of the CGST Rules, 2017 and the principles of natural justice and fair play.
The refund rejection orders dated 25 April 2024 are quashed and set aside - matter remanded to Respondent No.3 for fresh consideration of the Petitioner’s refund application dated 28 February 2024 - petition allowed by way of remand.
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2024 (10) TMI 1390
Dismissal of appeal preferred by the petitioner as being beyond limitation - no date of hearing was fixed nor any hearing granted to the petitioner prior to passing of an order under Section 73 of the State Goods & Service Tax Act - violation of principles of natural justice - HELD THAT:- Prima facie, from the said communication as well as the from the impugned order, it is evident that no hearing was accorded to the petitioner prior to passing of an order under Section 73 of the State Goods & Service Tax Act, which is a clear violation of Section 75(4) of the GST Act and also in violation of the principle of nature justice. Thus on the said limited ground, both the impugned orders are quashed and the matter is remanded to the Assessing Authority to pass a fresh order after giving opportunity of hearing to the petitioner in accordance with law.
Petition disposed off by way of remand.
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2024 (10) TMI 1389
Maintainability of petition - availability of alternative remedy - Suspension of GST registration of the petitioner - consent letter/NOC from the land owner had not been produced - It is the submission of the petitioner that the provisions governing the GST registration, nowhere requires for providing NOC more than once before the authorities.
Maintainability of petition - availability of alternative remedy - HELD THAT:- The respondent has issued a show cause notice and at the same time suspended the GST registration which results immediately stopping the business of the petitioner - The Three Judges Bench of the Supreme Court in the case of PHR INVENT EDUCATIONAL SOCIETY VERSUS UCO BANK AND OTHERS [2024 (4) TMI 466 - SUPREME COURT (LB)], while considering the maintainability of the writ petition on the basis of there being statutory alternate remedy has held that the writ petition is maintainable.
Suspension of registration - HELD THAT:- The petitioner was granted GST registration on 11.07.2017 and amended registration order was also passed on 10.02.2019. Thus, from 2019 onwards the petitioner has been operating his business from the principal place of business as well as from additional place of business. It is now only when some dispute has arisen between the landlord and the petitioner in December 2023 after about 4 years, the respondent has now issued the impugned letter on 20.05.2024 seeking initiation of cancellation proceedings and order has been passed on 10.07.2024 whereby the suspension of GST registration has been issued on the ground mentioning others - at the stage of amending the registration, certificate of registration and for incorporating additional place of business, no proof or consent letter or NOC from the property owner is required to be produced.
It is only for the purpose of issuing the registration certificate for the principal place of business that the NOC or consent letter from the property owner along with proof of address is required to be produced. Once the same has been done and the registration certificate has been issued, merely for adding another place of business there is no requirement under Rule 19 of the GST Rules. Rule 8 of the GST Rules cannot be read contrary to Rule 19 of the GST Rules - the petitioner is not said to have violated the GST provisions and is duly depositing his taxes. The grounds for cancellation cannot be added into the provisions of Section 29 (2) of the GST Act as there is no inclusive clause to Section 29 (2) of the GST Act.
There has been a complete non-application of mind while issuing order-cum-show cause notice dated 10.07.2024. The suspension of GST registration has been done for the entire places of business while the NOC demanded was only with respect to the additional place of business. As it is held that even for additional place of business NOC could not have been asked for by the respondents and the same cannot be a ground for suspension/ cancellation of GST registration, therefore, the order dated 10.07.2024 cannot be allowed to be sustained.
The order-cum-show cause notice dated 10.07.2024 passed by the respondents is quashed and set aside. The GST registration is restored. The petitioner shall be allowed to continue operate his business - petition allowed.
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2024 (10) TMI 1388
Service of SCN - SCN issued u/s 73 of GST Act were uploaded on 'Additional Notices and Orders' Tab of the G.S.T. Portal - Principles of natural justice - HELD THAT:- In the case of OLA FLEET TECHNOLOGIES PRIVATE LIMITED VERSUS STATE OF UP AND 2 OTHERS [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] a co-oridiante Bench of this Court inter alia observed and held that 'No material exist to reject the contention being advanced that the impugned order was not reflecting under the tab "view notices and orders". On merits, as noted in the earlier orders an other dispute exists whether all replies and annexures to the replies as filed by the assessee were displayed to the assessing officer and whether those have been considered. We find, no useful purpose may be served for keeping this petition pending or calling for a counter affidavit or even relegating the petitioner to the available statutory remedy.'
In view of the submissions made and the judgement in the case of Ola Fleet Technologies Pvt. Ltd the writ petition filed by the petitioner is allowed. The orders impugned dated 27.4.2024 and 30.4.2024 passed by the Deputy Commissioner, State Tax, Kanpur (annexure 1 and 2 to the writ petition) are quashed and set aside - petition allowed.
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2024 (10) TMI 1387
Cancellation of GST Registration of the petitioner - non filing of returns and non payment of taxes - HELD THAT:- In view of the fact that the petitioner company had to undergo the CIRP process under the Insolvency and Penalty Code, certain leeway would have to be granted to the petitioner to bring its business back on the rails.
The petitioner shall file an application for revocation of the cancellation of the registration of the petitioner on or before 05.11.2024 - This application for revocation shall be accompanied by the draft returns which the petitioner proposes to file in the event of the registration of the petitioner being restored - In view of the fact that the petitioner company had to undergo the CIRP process under the Insolvency and Penalty Code, certain leeway would have to be granted to the petitioner to bring its business back on the rails. In view of the special circumstances, this Writ Petition is disposed of subject to fulfilment of conditions imposed.
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2024 (10) TMI 1386
Cancellation of registration of the petitioner - non filing of the GST return for a continuous period of six months - HELD THAT:- The matter is covered by the order passed in KIRAN ENTERPRISES GSTIN VERSUS COMMISSIONER, STATE GOODS & ANOTHER [2024 (10) TMI 1306 - UTTARAKHAND HIGH COURT], the present writ petition is also decided in terms of the said order. The petitioner shall be at liberty to move an application for revocation or cancellation of the order under Section 30(2) of the CGST Act, 2017, within two weeks.
With this application, the petitioner shall also furnish all the GST returns, which he fails to submit and he will also deposit the outstanding dues of tax, interest and penalty of the goods and service tax with his application. If he makes such an application within stipulated period, the Competent Authority shall consider petitioner’s application and pass appropriate order as per law, within four weeks thereafter.
Petition disposed off.
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2024 (10) TMI 1385
Availment of Input Tax Credit (ITC) in respect of the IGST paid on manpower supply services received by the Petitioner - IGST on the External Commercial Borrowings (ECB) received from VTAL - exemption provided under of Notification No. 9/2017-Integrated Tax (Rate) dated 28.06.2017 - HELD THAT:- The issue regarding admissibility of input tax credit by invoking Section 16(4) is covered by the Judgment of this Hon’ble Court in the cases of Bosch [2024 (9) TMI 496 - KARNATAKA HIGH COURT] and M/S. MUSASHI AUTO PARTS INDIA PVT. LTD. VERSUS STATE OF KARNATAKA BENGALURU, DEPUTY COMMISSIONER OF COMMERCIAL TAXES, BENGALURU [2024 (7) TMI 1545 - KARNATAKA HIGH COURT] read with Circular No. 211/5/2024-GST dated 26/6/2024.
In regard to the second demand Circular No. 218/5/2024- GST dated 26/6/2024 and the decision of this Hon’ble Court in the case of AO Smith India Water Products Pvt. Ltd, [2024 (8) TMI 1453 - KARNATAKA HIGH COURT] are applicable. The authorities are directed to consider the same including the applicability of Section 128A & Section 13(3)(c) as regards demand of interest on the aforesaid amounts.
It is deemed just and appropriate to dispose of this petition by issuing certain directions - Petition is hereby disposed of.
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2024 (10) TMI 1384
Challenge to SCN demanding input tax credit availed by the Petitioner - IGST paid on manpower supply services received by the petitioner - erroneous invocation of Section 74 of the CGST Act, 2017 / KGST Act, 2017 - HELD THAT:- A perusal of the material on record and the submissions made by both sides will clearly indicate that prior to issuance of the impugned Show Cause Notice dated 28.09.2023 at Annexure — A, the State GST Authorities had already initiated proceedings as against the petitioner proposing to demand IGST and consequently, in light of Section 6(2)(b) of the CGST Act, 2017, which contemplates a complete bar / embargo on the Central GST Authorities to initiate proceedings in a situation where the State GST Authorities had already initiate proceedings as against the petitioner on the same subject matter, the impugned Show Cause Notice at Annexure — A to extent of demand of IGST of Rs.1,68,04,057/- along with interest in the light of Section 6(2)(b) of the CGST Act, 2017 deserves to be quashed.
Denial of input tax credit on the alleged violation of Section 16(4) of the CGST Act, 2017 - HELD THAT:- The issue is covered by the judgment of this Court in the case of Bosch Limited Vs. State of Karnataka and others [2024 (9) TMI 496 - KARNATAKA HIGH COURT] and M/S. MUSASHI AUTO PARTS INDIA PVT. LTD. VERSUS STATE OF KARNATAKA BENGALURU, DEPUTY COMMISSIONER OF COMMERCIAL TAXES, BENGALURU [2024 (7) TMI 1545 - KARNATAKA HIGH COURT] and the Circular No. 211/5/2024-GST dated 26.06.2024 issued by the Central Board of Indirect Taxes and Customs, New Delhi. The input tax credit has been validly availed.
It is deemed just and appropriate to dispose of this petition by issuing certain directions - the impugned Show Cause Notice at Annexure — A dated 28.09.2023 issued by the Respondent No. 3 to the extent of demand of IGST of Rs.1,68,04,057/- along with interest in terms of Section 6(2)(b) of the CGST Act, 2017 is hereby quashed - petition disposed off.
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2024 (10) TMI 1383
Initiation of two parallel proceedings in respect of the same assessment period - mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A - HELD THAT:- On perusal of the impugned order, it is evident that the tax proposal relating to a mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A was confirmed solely on the ground that the tax payer did not reply to the show cause notice. The admitted position is that a sum of Rs. 3,17,300/- was appropriated from the petitioner's bank account. This amount represents more than 10% of the disputed tax demand in respect of assessments forming the subject of this writ petition and W.P.No.18424 of 2024. In these circumstances, reconsideration is necessary.
The impugned order dated 26.12.2023 is set aside and the matter is remanded for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within 15 days from the date of receipt of a copy of this order by raising all contentions - Petition disposed off by way of remand.
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2024 (10) TMI 1382
Excess refund - petitioner asserts that he was unaware of proceedings culminating in the impugned order - violation pf principles of natural justice - HELD THAT:- On perusal of orders impugned herein, it is clear that the petitioner did not participate in proceedings. Such non participation was a consequence of not monitoring the GST portal and responding to notices. In these circumstances, it is just and appropriate to provide an opportunity to the petitioner, albeit by putting the petitioner on terms.
Therefore, solely with a view to provide an opportunity to the petitioner, the orders impugned herein are set aside and these matters are remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand in respect of each relevant month with in two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a reply to the respective show cause notice with in the aforesaid period.
Petition disposed off.
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2024 (10) TMI 1381
Cancellation of GST registration of petitioner - petitioner had not filed GST monthly returns for a continuous period of six months - HELD THAT:- The reason set out in the order of cancellation is non filing of returns for a continuous period of six months. In Suguna Cutpiece, this Court directed restoration of GST registration subject to several terms and conditions. The said judgment was followed thereafter in many cases. In order to maintain consistency, the said judgment is followed.
The petitioner is directed to file her returns for the period prior to the cancellation of registration, together with tax dues along with interest thereon and the fee fixed for belated filing of returns within a period of forty five (45) days from the date of receipt of a copy of this order - petition disposed off.
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2024 (10) TMI 1380
Rectification of mistake - error apparent on the face of assessment order - HELD THAT:- This writ petition stands disposed of directing opposite party no.3 to take a decision on the application dated 23.01.2024 under Annexure-2 and make necessary correction in the order dated 28.12.2023, which is apparent on the face of the assessment order.
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2024 (10) TMI 1379
Seeking grant of anticipatory bail - availing fraudulent Input Tax Credit and passing of Input Tax Credit without actual supply of goods - HELD THAT:- On a perusal of the judgment of the Delhi High Court in Tarun Jain v. Directorate General of GST Intelligence DGGI [2021 (12) TMI 135 - DELHI HIGH COURT], it considered the provisions of the CST Act, the powers of inspection, seizure and arrest prescribed under Chapter XIV of the Act, the provisions under Section 69 and 132 of the CGST Act and the judgment in P.V. Ramana Reddy vs. Union of India [2019 (4) TMI 1320 - TELANGANA AND ANDHRA PRADESH HIGH COURT] of this Court and the judgments in SHRAVAN A. MEHRA AND ORS. VERSUS SUPERINTENDENT OF CENTRAL TAX, ANTI-EVASION, GST COMMISSIONERATE [2019 (2) TMI 2114 - KARNATAKA HIGH COURT] and of the Delhi High Court itself in Raghav Agrawal v. Commissioner of Central Tax and GST Delhi North [2020 (12) TMI 940 - DELHI HIGH COURT] and of the Bombay High Court in Sapna Jain vs. Union of India [2019 (5) TMI 1610 - BOMBAY HIGH COURT], which was challenged before the Hon'ble Apex Court and the Hon'ble Apex Court without interfering into the order tagged it to be listed before the 3-Judge Bench in the case of Union of India v. Sapna Jain [2019 (6) TMI 58 - SC ORDER] and the said matter was pending till date, it observed that the question regarding anticipatory bail while dealing with offences under CGST was yet unsettled and as such decided the matter by exercising its own discretion.
As the facts of this case are also similar to the facts of the above case, which were pertaining to fraudulently availing input tax credit, extending to more than Rupees Five Hundred Lakhs under Section 132 of the TGST Act, 2017 and the petitioners are also apprehending their arrest, it is considered fit to grant anticipatory bail to the petitioners on the fulfilment of terms and conditions imposed - bail application allowed.
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