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Showing 321 to 340 of 1658 Records
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2024 (10) TMI 1338
Abatement of appeal under Rule 22 of CESTAT (Procedure) Rules, 1982 - Liquidation proceedings - recovery of irregular CENVAT credit availed, with interest and penalty - HELD THAT:- As the Department has already registered its claim with the Liquidator, no further proceedings can survive in this appeal.
As the NCLT, Chennai has ordered for Liquidation of the appellant vide its order dated 19.03.2018 and as the Liquidator has confirmed the receipt of claim from the Deputy Commissioner of GST and Central Excise, Trichy and also as no application as per Rule 22 has been made by the Official Liquidator appointed by the NCLT for continuance of the appeal, the appeal should abate in terms of the above referred Rule.
As such the appeal gets abated in terms of Rule 22 of the CESTAT (Procedure) Rules, 1982 and also gets dismissed being infructuous.
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2024 (10) TMI 1337
Classification of goods - soya nuts and wheat puffs - goods cleared below the threshold limit prescribed - benefit of SSI exemption under Notifications 175/86-CE dated 01.03.1986 and 01/93-CE dated 28.02.1993 - HELD THAT:- It is undisputed that the appellant was clearing goods most of which were supplied to ICDS which were exempted anyway regardless of the SSI exemption. These have to be excluded from the aggregate value of clearances under the notification in view of the Explanation II. Once the value of these clearances is deducted from the total turnover of the appellant, what remains is the value of dutiable goods during different years which are recorded in the impugned order by the Commissioner. During the entire period the value of such clearances had not exceeded Rs. 7.5 lakhs in any financial year even as per the impugned order.
Condition No. 4 stipulates that the assessee must have been registered with the Director of Industries but the proviso therein clarifies that if the value of clearances during the preceding financial year or the current financial year did not exceed and was not likely to exceed Rs.7.5 lakhs, this condition shall not apply. Explanation II clarifies that the value of clearances does not include such clearances whether the goods are exempted by any other notification or are chargeable to nil rate of duty. A perusal of the impugned order says that the year wise values of goods cleared did not exceed Rs.7.5 lakhs in any year.
The appellant was entitled to SSI exemption and, therefore, the duty demanded in the impugned order and the consequential penalties cannot be sustained and need to be set aside - the impugned order is set aside - Appeal allowed.
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2024 (10) TMI 1336
Reversal of CENVAT Credit with interest and penalty - non-moving/ obsolete /surplus inventories - inputs written off in their books of account in accordance of rule 3 (5B) of CCR - Invocation of extended period of limitation - HELD THAT:- On a plain reading of the said Rule it is clear that in the event the value of any input or capital goods before being put to use on which Cenvat credit has been availed are written off fully or partially or any provision has been made to write off those fully or partially than the manufacturer or service provider are required to reverse/pay Cenvat credit availed on such inputs or capital goods. Thus it is clear that provisions of rule 3 (5B) CCR are applicable only when the value of asset and or inventory is written off fully or partially, or wherein any specific provision to write-off fully or partially has been made in the books of accounts.
In the present case from the very beginning the appellant have submitted that they have only written down the value of the raw materials in their books of account and has not written off the value fully or partially. Also, the claim of the appellant are that all these raw materials are still available in their factory and are in usable conditions; the value is written down as per the accounting principle and since the credit availed is on inputs, therefore, under the CCR, 2004, there is no bar in taking depreciation benefit' under Income-tax Act, 1961 - there is no evidence to the effect that the inputs whose value had been written down had been removed from the factory, thus, reducing the value of the raw materials. Keeping in view the accounting principles and Income-tax benefit, if any, it cannot be construed that the value of the inputs are written off from the books of account and are not usable resulting into invoking of Rule 3(5B) of Cenvat Credit Rules, 2004.
There is no denial by the Department about appellant to have kept the inventory in their accounts at full value and upon consumption in regular course of business, the cost of inventory is booked at full value itself. There is also no denial to the fact that the non/slow moving inventory has at certain stage being used by the appellant in its manufacturing process. Hence the inventory which had not become obsolete cannot be called as the entry written off. As already observed above Rule 3(5B) CCR is invokable vis-à-vis written off entry only. The said rule has wrongly been invoked by the Department.
This Tribunal also in the case of M/S. HINDUSTAN ZINC LTD. VERSUS COMMISSIONER OF CENTRAL GOODS & SERVICE TAX COMMISSIONERATE, UDAIPUR (RAJASTHAN). [2021 (8) TMI 935 - CESTAT NEW DELHI] and in another case titled as M/S TAKATA INDIA PVT. LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, ALWAR, RAJASTHAN [2022 (4) TMI 1359 - CESTAT NEW DELHI] has been held that since the assessee has made only a general provision and the department has not been able to identify the details of inventory or assets for which the provision has been made as to whether those inventories have become obsolete, the demand confirmed invoking Rule 3(5B) in the circumstances is not sustainable. There is also no denial to the fact that in case where such non/slow moving inventory had become obsolete the appellant had already reversed the credit.
Invocation of extended period of limitation - HELD THAT:- It is observed that the provision in the records of the appellant (balance-sheet/ P & L accounts) was the activity in accordance of normal accounting practice. Appellant is found to have committed nothing which may amount to evasion of tax. His defence since the stage of replying to the show cause notice has been apparently clearer about non-invokability of rule 3 (5B) of CCR, but the same has not been considered by the authority below - there is no evidence for the invocation of extended period. Show Cause Notice (SCN) therefore is held to be barred by the period of limitation.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1335
Levy of penalty under Rules 15 (1) of the Cenvat Credit Rules, 2004 on an employee who did not avail or utilize Cenvat Credit - HELD THAT:- The penal provision provided under Rules, 15 of the Cenvat Credit Rules, 2004 clearly mentioned that penalty imposable of the person who takes of utilises Cenvat Credit in respect of input or capital goods or input service. It is found that the appellant has been working only as a employee of the main noticees, he has neither taken Cenvat Credit himself or utilize the same for its own purposes for payment of the duty and therefore, the penal provisions has provided under Rules, 15(1) of the Cenvat Credit Rules, 2004 are not invokable in this case.
Reliance placed upon this Tribunal decision in case of SHRI PRANATHARTHIHARAN SRIDHARAN VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VADODARA-I [2023 (3) TMI 1123 - CESTAT AHMEDABAD] where it was held that 'penalty under Rule 15(1) on the present appellant, who is merely an employee of the Company, is not sustainable.'
The impugned order in Original is without any merit so far as imposition of penalty on the appellant is concerned - appeal allowed.
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2024 (10) TMI 1334
Denial of Cenvat Credit distributed during April to June 2012 by the Appellant’s Head Office (Input Service Distributor) at Kolkata to the Appellant unit at Palej (Bharuch) - denial on the ground that the ISD did not distribute the Credit amongst all units proportionate to the respective turnovers of the units, resulting in distribution of excess Credit to the Palej unit - revenue neutrality - intent to evade or not - extended period of limitation - HELD THAT:- It is found that as regard distribution of credit in respect of common input service , the provisions is made under Rule 7 of Cenvat Credit Rules, 2004 which has undergone the change with effect from 01.04.2016.
It is found that the proportionate distribution of the input service credit was made mandatory by amendment with effect from 01.04.2016. However, prior to the said amendment there was no compulsion on the assessee to distribute the credit either to one unit or proportionately to different units. Therefore, even if the entire credit is distributed to the appellant instead of distribution proportionately to all the units, credit to the appellant unit cannot be denied.
It is also found that the other units to whom the proportionate credit should have been distributed have paid much more duty from PLA /cashthan the said attributed credit therefore, this being clearly a revenue neutral situation, the demand is not tenable.
In the case of Unifrax India Ltd v CCE [2023 (10) TMI 955 - CESTAT AHMEDABAD], the CESTAT Ahmedabad has held that 'in view of existing provisions of CENVAT Credit Rules, 2004 during relevant period, the 100% credit availed by the appellant is in order in terms of Rule 2007, existing at the relevant time.'.
In view of the judgments on the point of distribution of input service credit as well as on revenue neutrality it is settled that even if the cenvat credit is distributed to one unit only during the relevant period, the credit cannot be denied.
The impugned order is set aside - Appeal is allowed.
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2024 (10) TMI 1333
CENVAT Credit - capital goods - inward transport - reverse charge mechanism - scope of SCN - penalty - HELD THAT:- The Adjudicating Authority has clearly traversed beyond the charges levelled in the show cause notice and confirmed the demand on the grounds which were not indicated in the show cause notice. Therefore, on this ground itself, the demand is not sustainable, even though he has rightly held the said goods as input or consumable and therefore allowed the taking of the credit of the same by the appellant which had initially taken the credit on the same as capital good. Therefore, taking of credit has not been found to be wrong by the Adjudicating Authority as such.
CENVAT credit on Araldite - HELD THAT:- It is found that because of their mechanical properties and resistance to chemical and suitability for prevention of formation of rust, levelling etc., they are used in fermentation tanks on the interior and exterior surfaces providing a barrier against corrosive substances. Therefore, once the Adjudicating Authority has held Epoxide Resin as capital goods, by the same logic even Araldite would also be considered as capital goods. Therefore, in view of the facts of the case and its use in the factory, Commissioner was not correct in holding that it was in the nature of inputs or consumables. On this count itself demand is not sustainable.
It is further noted that Commissioner after holding it as inputs or consumables had further gone to confirm the demand on the grounds that the same has been used in the manufacture of both dutiable and exempted goods and therefore the demand has been confirmed, which has been included in the total amount of Rs. 1,33,312/- - this demand for reversal or payment of duty under Rule 6(3A) of CCR 2004 is not sustainable.
Penalty - HELD THAT:- It is noticed that a composite penalty has been imposed covering both the issues. However, as the demand is not sustainable on the amount of Rs. 1,33,312/- and only demand which is sustainable on account of their non-contest is Rs. 1,25,329/-. Therefore, the penalty also needs to be appropriately re-determined. In the light of the discussion, I consider an amount of Rs. 20,000/- as penalty would be adequate and therefore the order for penalty is modified to that extent.
The demand of Rs. 1,33,312/- is not sustainable and set aside. The demand of Rs. 1,25,239/- is upheld - Appeal allowed in part.
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2024 (10) TMI 1332
Inclusion of amount retained by the appellant under the Package Scheme of Incentive 1993 - difference between the amount collected and the ‘net present value (NAV)’, computed with the date of schedule payments as benchmark - HELD THAT:- The issue stood covered by the decision of the Tribunal in COMMISSIONER OF CENTRAL EXCISE, RAIGAD, BALKRISHNA INDUSTRIES LTD., ESSEL PROPACK LTD. VERSUS UTTAM GALVA STEELS LTD., BHUSHAN STEEL LTD., JSW ISPAT STEEL LTD., COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [2015 (10) TMI 1727 - CESTAT MUMBAI] which, in identical circumstances of dispute of another similarly situated automotive parts manufacturer, RATIONAL ENGINEERS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE – I [2023 (11) TMI 363 - CESTAT MUMBAI] where it was held that 'In view of the decisions of the Tribunal, relating to the peculiarity of the scheme which was prevailed insofar as the impugned order is concerned, the demand is set aside'.
In view of the decisions of the Tribunal, deciding on the dispute arising from the peculiar features of the said scheme of the Government of Maharashtra, the impugned order is set aside - appeal allowed.
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2024 (10) TMI 1331
Quashing of disciplinary proceedings midway, i.e., at the stage when the enquiry had been completed - jurisdiction of the disciplinary authority - HELD THAT:- There was no adversarial order, resulting in no cause of action to canvass or maintain the Writ Petition. The mere pendency of the inquiry or the Writ Petitioner’s apprehension of any adverse orders cannot be a ground to maintain the Writ Petition. It is apparent that no rights of the Writ Petitioner have been abridged, nor has the inquiry resulted in altering the service conditions. In that context, the mere issuance of the show cause notice would not confer jurisdiction on this Court to entertain and appreciate the Writ Petition. In the absence of any right of the litigant being adversely affected, it is not seen how the learned Single Judge could have heard and ordered the Writ Petition.
Appreciation of the facts is the domain of the statutory authorities, specifically the disciplinary authority in this case - the Appellant/Department is directed to produce the records relating to the refund claim, which has been the contention between the Appellant/Department and the Employee.
The learned Single Judge has erred in taking up the role of the disciplinary authority and in attempting to substitute the opinion of the disciplinary authority with the opinion of this Court, which is impermissible. The learned Single Judge could not have usurped or pre-empted the statutorily empowered disciplinary authority from forming an opinion on imposing or not imposing any penalties. The authority to impose or not impose any penalty, as provided under the rules, is in the exclusive domain of the disciplinary authority, an action that has now been pre-empted by the impugned order. The Writ Petition itself was premature in the absence of any adverse impact on the rights or service conditions of the Writ Petitioner.
There are no hesitation in allowing the appeal. Accordingly, the appeal is allowed in part. The impugned order is set aside, and the matter is remitted back to the disciplinary/competent authority for consideration of the reply to be submitted by the Respondent/Writ Petitioner. Thereafter, the disciplinary/competent authority shall pass necessary orders within six (6) weeks from the date of receipt of the reply to the second show cause notice - appeal allowed by way of remand.
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2024 (10) TMI 1330
Conviction for the offences punishable under Section 120B read with Sections 420/419 of the Indian Penal Code (IPC) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 - substantive sentence of 7 years - embezzlement - HELD THAT:- The power of suspension of sentence under Section 389 of the CrPC (Corresponding to Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is vested in the Appellate Court dealing with an appeal against the order of conviction. On a plain reading of subsection (1), the Appellate Court has the power to suspend the execution of a sentence or order appealed against. If the appellant/accused is in confinement, there is a power vesting in the Appellate Court to release him on bail pending the final disposal of the appeal. In case of offences covered by the first proviso to subsection (1) of Section 389, there is a mandate to give an opportunity to the Public Prosecutor to show cause in writing against such release before releasing a convicted person on bail. As stated earlier, the substantive sentence imposed on the respondent is rigorous imprisonment for seven years. In addition, there is a direction to pay a fine of Rs.95,00,000/-.
Perusal of the impugned order shows that the High Court was conscious of the fact that as the embezzlement alleged against the respondent and other accused persons was to the tune of Rs.46,00,000/, the Special Court had sentenced the respondent to pay a fine of Rs.95,00,000/. The order notes that the sentence imposed on the respondent was of both imprisonment and payment of fine. Therefore, on a plain reading of the impugned order, the argument of learned ASG that the sentence of the fine was not suspended cannot be accepted.
There is no reason to interfere with the impugned order, especially when the respondent has deposited a sum of Rs.15,00,000/in this Court. The deposit of Rs.15,00,000/shall be treated as a condition for suspending the sentence of fine. Accordingly, the appeal is disposed of with the above modification. The amount of Rs.15,00,000/deposited by the respondent has been invested by the Registry in fixed deposit. Immediately after maturity of the existing fixed deposit, the Registry shall transfer the amount of Rs.15,00,000/with interest accrued thereon to the Delhi High Court.
Appeal disposed off.
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2024 (10) TMI 1329
Suit for declaration of title over the suit property - recovery of possession - whether the registered gift deed dated 05.03.1983 was duly acted upon and accepted and is a valid document which continue to exist despite its revocation on 17.08.1987 as the donor had not reserved the right to revoke the same? - HELD THAT:- Admittedly, the present suit for declaration and recovery of possession of the suit property was filed by the plaintiffrespondent on 25.09.1991. The court of first instance held that as the same was not filed within three years from the date of revocation of the gift deed, i.e., 17.08.1987 (Exhibit B-2), the suit is barred by limitation - Once it is held that the gift deed was validly executed resulting in the absolute transfer of title in favour of the plaintiff-respondent, the same is not liable to be revoked, and as such the revocation deed is meaningless especially for the purposes of calculating the period of limitation for instituting the suit.
In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.
Though the limitation for filing a suit for declaration of title is three years as per Article 58 of the Schedule to the Limitation Act but for recovery of possession based upon title, the limitation is 12 years from the date the possession of the defendant becomes adverse in terms of Article 65 of the Schedule to the Limitation Act. Therefore, suit for the relief of possession was not actually barred and as such the court of first instance could not have dismissed the entire suit as barred by time.
There are no error or illegality on part of the first appellate court and the High Court in decreeing the suit of the plaintiff-respondent - appeal dismissed.
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2024 (10) TMI 1328
Maintainability of the appeals - right to contest an appeal against its order determining tariff for aeronautical services before TDSAT - Whether AERA has a right to contest an appeal against its order determining tariff for aeronautical services before TDSAT, and then consequently prefer an appeal against the order of TDSAT before this Court under Section 31 of the AERA Act? - Even if AERA does not have a right to contest an appeal against its order determining tariff for aeronautical services before TDSAT, does it have a right to prefer an appeal against the order of TDSAT before this Court in terms of Section 31 of the AERA Act?
HELD THAT:- The judicial principle that a judicial or quasi-judicial authority must not be impleaded as a party to an appeal against its order is premised on two reasons, both rooted in constitutional philosophy. The first reason is that with the impleadment of the judicial or quasi-judicial authorities as respondents, they will be required to justify their decision before the Appellate Court. This is contrary to the established principle that Judges only speak through their judgments. Any dilution of this principle would lead to a situation where every judicial authority would be called upon to justify their decisions in the Court of appeal. This would break down the entire edifice of the judicial system.
The exercise of power by Authorities and Tribunals was described as “quasi-judicial’ to ensure that the principles of natural justice were complied with. However, with the evolution of the doctrine of fariness and reasonableness, all administrative actions (even if there is nothing ‘judicial (or adjudicatory)’ about them) are required to comply with the principles of natural justice. The evolution of the fairness doctrine has transcended many boundaries. Thus, the reason for which the expression ‘quasi-judicial’ came into vogue is no longer relevant. Neither are the tests to identify them because the functions of an authority no more need to have any semblance to ‘judicial functions’ for it to act judicially (that is, comply with the principles of natural justice).
AERA has a statutory duty to regulate tariff upon a consideration of multiple factors to ensure that airports are run in an economically viable manner without compromising on the interests of the public. This statutory role is evident, inter alia, from the factors that AERA must consider while determining tariff and the power to amend tariff from time to time in public interest - It is interested not in a personal capacity. Its interest lies in ensuring that the concerns of public interest which animate the statute and the performance of its functions by AERA are duly preserved. Thus, AERA is a necessary party in the appeal against its tariff order before TDSAT and it must be impleaded as a respondent.
It does not confer that power to any party expressly. There are three ways in which provisions dealing with statutory appeal are drafted. First, the provision may not prescribe who can file an appeal such as Section 31 of the AERA Act. Second, the provision may provide that an appeal may be preferred by a ‘person aggrieved’ such as under the Electricity Act 96, the Major Port Authorities Act 2021, the Securities and Exchange Board of India Act 1992 and the Pension Fund Regulatory and Development Authority Act 2012. The third category is where the statute confers ‘any party’ with the right to file an appeal as under the Companies Act 2013.100 With respect to the first of the three categories, at a minimum the parties to the appeal before first appellate body (in this case TDSAT) will have a right to file an appeal before this Court. AERA can file an appeal under Section 31 in view of conclusion that it is a necessary party in the appeals against the tariff orders issued by it.
The appeals filed by AERA against orders of TDSAT under Section 31 of the AERA Act are maintainable. The Registry shall list the matters before the Regular Bench for adjudication of the appeals on merits.
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2024 (10) TMI 1327
Grant of anticipatory bail - sum and substance of the prosecution case is that the appellant being the director in connivance with the others is involved in forging the documents for the purpose of getting statutory benefits with respect to customs duty and GST liability - HELD THAT:- By taking into consideration the fact that earlier a complaint was registered at the instance of another director, of the company in which the present appellant is also a director and the present proceeding being initiated in pursuance to the statement given to one of the employees during the investigation conducted thereunder, coupled with the fact that the appellant is a lady, we are inclined to set aside the impugned order and grant anticipatory bail to the appellant. Needless to state that the appellant shall cooperate with the investigation.
The impugned order stands set aside and the appellant is granted anticipatory bail, subject to the terms and conditions that may be imposed by the Trial Court as it deems fit for the aforesaid purpose - Appeal allowed.
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2024 (10) TMI 1326
Blocking of Input Tax Credit (ITC) - Rule 86A of the U.P. GST Rules - satisfaction as required has not been indicated in the order impugned - HELD THAT:- Considering the fact that the application made by the petitioner on 18.09.2024, seeking unblocking of the ITC made by order dated 13.09.2024 continues to remain pending with the respondents, it would be in fitness of things that the respondents are directed to decide the pending application in accordance with law within a period of three weeks from the date of this order. Before deciding the said application, the petitioner would be provided appropriate opportunity of being heard. The petitioner would be free to raise all the issues as raised in the present writ petition.
Petition disposed off.
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2024 (10) TMI 1325
Blocking of Input Tax Credit (ITC) - sub-rule (1) under rule 86A in Odisha Goods and Services Tax Rules, 2017 - HELD THAT:- Rule 86A provides for blocking of available input credit. Section 74 deals with determination of tax, inter alia, on wrongfully availing ITC. Thus there is an essential difference between section 74 operating in a field where ITC has already been availed of and rule 86A, operating where there is available ITC. In the circumstances, requirement under section 74 for issuance of show cause notice cannot be implied as mandate of pre-condition for blocking under rule 86A.
The proper officer has exercised discretion in intimating petitioner that ITC has wrongly been availed by him and therefore there will be determination and recovery of tax. Regarding the assessment made under section 62, we appreciate that petitioner, in disputing the allegation of wrongfully availing ITC and suffering blocking of his available ITC, may have been prevented from filing return. As such, we direct that petitioner will have 30 days to file return commencing from date of communication of decision taken on his representation for unblocking his ITC.
Petition disposed off.
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2024 (10) TMI 1324
Cancellation of GST registration of petitioner with retrospective effect - non genuine tax-payers - petitioner was found non-existent - impugned order does not indicate any reason for cancelling the petitioner’s GST registration much less from retrospective effect - violation of principles of natural justice - HELD THAT:- The impugned order is bereft of any reason. It neither specifies the reasons for cancelling the GST registration nor gives any clue as to why it was cancelled w.e.f 02.09.2017. The retrospective cancellation of GST registration has a cascading effect inasmuch as the concerned authorities would also deny the input tax credit to other tax payers who might have received supplies from the petitioner herein. Dealing with an identical issue in the case of Riddhi Siddhi Enterprises vs. Commissioner of Goods and Services Tax (CGST), South Delhi & Anr. [2024 (10) TMI 278 - DELHI HIGH COURT], where it was held that 'It is also necessary to observe that the mere existence of such a power would not in itself be sufficient to sustain its invocation. What we seek to emphasise is that the power to cancel retrospectively can neither be robotic nor routinely applied unless circumstances so warrant. When tested on the aforesaid precepts it becomes ex facie evident that the impugned order of cancellation cannot be sustained.'
It is foiund that there has been an abject failure on the part of the concerned authorities to assign even rudimentary reasons for retrospective cancellation.
Since the only allegation against the petitioner was that it was non-existent, which was sufficiently addressed by the petitioner in his reply by claiming that the tax payer had to go to Rajasthan due to ill health of his father, and at the relevant time when visit was scheduled by the Department, the tax payer was travelling to Rajasthan and owing to this, the business place of the tax payer was closed and it was presumed that the tax payer is non-existent. The temporary suspension of business activity on account of ill health would not warrant cancellation of taxpayer’s GST registration. The impugned order dated 27.08.2024 is completely silent with regard to even any enquiry having been conducted on the aforesaid aspect.
Both the impugned SCNs dated 06.02.2024 and 07.08.2024 as also the impugned orders dated 25.05.2024 and 27.08.2024 are set aside. Respondents are directed to restore the petitioner’s GST registration - Petition disposed off.
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2024 (10) TMI 1323
Challenge to penalty order passed in form GST MOV- 09 dated 21.09.2024 passed by respondent No. 2 under the provisions of CGST/IGST Act and Rules - clarification dated 31.12.2018 issued by the Central Board of Taxes and Customs GST Policy Wing - HELD THAT:- The impugned demand of penalty order dated 21.09.2024, Annexure-1, passed by respondent No. 2 is set aside.
The matter is remanded back to the competent authority to pass a fresh order in terms of the observations made hereinbefore within a period of two weeks from the date of receipt of copy of this order.
The writ petition is allowed. by way of remand.
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2024 (10) TMI 1322
Denial of ITC - marking wrong place of supply in annual return as 'other territory' instead of 'Kerala' - HELD THAT:- Having considered the judgments of the Madras High court in DEEPA TRADERS VERSUS PRINCIPAL CHIEF COMMISSIONER OF GST & CENTRAL EXCISE CHENNAI, TAMIL NADU, SUPERINTENDENT OF GST, CENTRAL EXCISE, COIMBATORE GOODS AND SERVICES TAX NETWORK (GSTN), NEW DELHI [2023 (3) TMI 628 - MADRAS HIGH COURT] and M/S. AKSHAYA BUILDING SOLUTION, REPRESENTED BY ITS PARTNER, MR. K. SENTHILKUMAR VERSUS THE ASSISTANT COMMISSIONER OF CGST & CENTRAL EXCISE, COIMBATORE – IV DIVISION, COIMBATORE [2023 (12) TMI 511 - MADRAS HIGH COURT] and also taking into consideration of the fact that the alleged mistake was in the year immediately after the introduction of GST, the petitioner can be granted relief as was done by the Madras High Court in the judgment referred to above - In Deepa Traders the Madras High Court held 'In the absence of an enabling mechanism, I am of the view that assessees should not be prejudiced from availing credit that they are otherwise legitimately entitled to. The error committed by the petitioner is an inadvertent human error and the petitioner should be in a position to rectify the same, particularly in the absence of an effective, enabling mechanism under statute.'
This writ petition is allowed by setting aside Ext.P3 order in original and consequential recovery notices namely Exts.P4 and P7 and directing the competent among the respondents to permit the petitioner to resubmit the annual return for the year 2017-18 in GSTR 9 by correcting the mistakes allegedly committed by the petitioner - Petition allowed.
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2024 (10) TMI 1321
Maintainability of petition - availability of alternate efficacious remedy of appeal to the Commissioner (Appeals) - no opportunity of hearing - failure of principles of natural justice - HELD THAT:- The complaint about no opportunity of hearing, at least prima facie, cannot be accepted. At least three intimations were sent to the Petitioner’s registered address. The Petitioner had not intimated the Respondents about the changed address. In this case, we notice that the show cause notice and the Order-in-Original were served at the Petitioner’s registered address, i.e., Shed No. 1, Gat No. 344, Ground Floor, Konde Bandhu, Near Old Post Office, Moshi, Pimpri-Chinchwad, Pune 411501. Further, even the Petitioner wrote to Respondent No. 3 seeking documents on a letterhead containing the same address. Even the address in the cause title of this petition is the same. Therefore, the contention about a change of address cannot be at least, prima-facie, accepted.
This is prima facie, not a case of “no notice”, but at the highest, this is a case of “no adequate notice”. In later cases, the party complaining about inadequate notice must establish some prejudice.
This petition is declined to be entertained - the Petitioner are relegated to avail of the alternate remedy of appeal against the impugned order - petition disposed off.
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2024 (10) TMI 1320
Maintainability of petition - availability of alternative remedy of appeal - transition of credit - HELD THAT:- There is no reason why the Petitioner should not be relegated to the remedy of an appeal.
Therefore, if the Petitioner files an appeal within four weeks from today, the Appellate Authority should consider such appeal on merits without going into the issue of limitation. This petition was pending since 23 June 2023 and Petitioner was bona fide prosecuting it before this Court.
The Appellate Authority should take into consideration the effect the Finance (No. 2) Act of 2024 while deciding the appeal.
Petition disposed off.
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2024 (10) TMI 1319
Dismissal of appeal - incompetent and incomplete appeal for want of deposition of the requisite fee - HELD THAT:- The stand taken by the State is appreciated and the present writ petition is disposed off with directions to the Appellate Authority to hear the appeal preferred by the petitioner on merits, subject to the petitioner depositing the remaining amount of Rs. 10,000/- within a period of one week from today.
On account of the non-payment of the requisite fee, an appeal cannot be dismissed as not maintainable, and in fact, before the Appellate Authority takes up any appeal, the appellant should be informed of any deficiency and be given a chance to deposit and remove the deficiency, if any - Petition allowed.
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9911796707
