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Showing 401 to 420 of 1658 Records
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2024 (10) TMI 1258
Levy of service tax - weighment activity carried out within the Navlakhi Port - classifiable under the taxable category of Business Support Service as defined under Section 65(104c) of Finance Act, 1994 read with Section 65(105)(zzzg) of the Finance Act, 1994 or not - HELD THAT:- It is found that the weighbridge activity is an independent activity of the respondent appellant. The weighbridge, therefore, under any circumstances, this activity cannot be classified as Business Support Service as the Respondent is not doing any activity to support in anyone’s business.
Therefore, firstly, the category of the demand itself is incorrect and on that ground itself the demand raised in the Show Cause Notice does not survive. Consequently, the learned Commissioner (Appeals) has dropped the demand on the ground that the appellant have undertaken the statutory obligation by the activity of weighbridge at the Navlakhi Port.
Thus, for the operation of the port, there are some statutory obligation to be performed for smooth operation of the port and such statutory obligations are assigned to different person as in the present case is weighbridge statutory obligation has been assigned to the respondent. Therefore, being a statutory obligation, the same cannot be taxed as held in various judgments cited by the learned counsel for the respondent.
Reliance placed in the case of Food Corporation of India [2023 (8) TMI 538 - CESTAT CHANDIGARH] where it was held that 'The Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods produced or provided by or belonging to clients. As respondents are not concerned with the sale or marketing of the goods, therefore, cannot be said to be provider of incidental or auxiliary service to any activity such as promotion or marketing or sale of goods produced. In these circumstances, we find no infirmity in the impugned orders. The appeals are dismissed.'
From the above judgment not only on the point of statutory obligation but also on the specific activity of weighment, it was held that the said activity is not liable to service tax.
Thus, no interference is required in the impugned order - the impugned order is upheld - Revenue’s appeal is dismissed.
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2024 (10) TMI 1257
Refund in cash - non-acceptance of the documents submitted, for the claim as not sufficient - reverse charge mechanism - HELD THAT:- Section 142(3) is only a provision which provides for entertaining and allowing refund of credit and in case any refund payable, then the same can be refunded in cash. However, whether the refund as such is otherwise eligible and admissible under the existing law would be the determining factor.
On going through the judgments cited specially the case of M/s NACL Industries Ltd., [2024 (9) TMI 507 - CESTAT HYDERABAD], which has dealt with the same issue and held that refund was not permissible in certain situation where it was otherwise not eligible under existing law.
It is found that in the Larger Bench decision of M/s Bosch Electrical Drive India Pvt Ltd. [2023 (12) TMI 1145 - CESTAT CHENNAI-LB], the issue referred to was not regarding the admissibility of refund under Section 142(3) in the given facts, rather it was with regard to maintainability of such appeal before CESTAT and which was decided by the Larger Bench by holding that such appeals are maintainable. This is not the issue in the present appeal as it has already admitted and is not being contested by the Revenue and therefore it does not help the grounds taken by the appellant.
The order of Single Member Bench in M/s Jagannath Polymers Pvt Ltd. [2021 (12) TMI 736 - CESTAT NEW DELHI], has allowed appeal in a given factual matrix without addressing the various order of Hon’ble High Courts and Tribunals on the interpretation of Section 142(3) of CGST Act 2017.
In so far as the issue of credit being substantive right and therefore refund is required to be allowed in view of provisions under Section 174 of CGST, the issue is also no longer res integra and various Court’s and Tribunals have held the credit is not a substantive right rather it is in the nature if concession.
There are no infirmity in the order passed by the Commissioner (Appeals) - appeal dismissed.
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2024 (10) TMI 1256
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Petitioner failed to deposit the required amount under the scheme - HELD THAT:- Admittedly, the petitioner did not deposit the amount of Rs. 89,77,393.50 as per Form SVLDRS-3 issued by the respondent No. 2 after considering the Form SVLDRS-1 filed by the petitioner. The ground on which the petitioner had not deposited the money to avail the benefit under the scheme is of no consequence inasmuch as the facts remains that the petitioner had not abided by the terms and conditions of the scheme which stipulate that the petitioner was supposed to make the payment within 30 days from the issuance of the Form SVLDRS-3.
The Hon’ble Apex Court in the case of M/s. Yashi Constructions [2022 (3) TMI 110 - SC ORDER] has held that 'It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously. If the time is extended not provided under the Scheme, it will tantamount to modifying the Scheme which is the the prerogative of the Government.'
Thus, the petitioner can not get the benefit of Form SVLDRS-3 and permitting the petitioner to pay the amount as per the Form SVLDRS-3 would amount to modify the scheme by extending the date of payment which is not permissible.
Reliance placed by the petitioner on the decision of Bombay High Court in the case of Shri Arjun Amarjeet Rampal [2023 (5) TMI 13 - BOMBAY HIGH COURT] is also of no help to the petitioner as in the facts of the said case the petitioner could not deposit the amount due to some technical glitch - the decision in the case of Shri Arjun Amarjeet Rampal would not be applicable in the facts of the case when the petitioner has failed to deposit any amount as per the Form SVLDRS-3.
The present petition fails and is accordingly dismissed.
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2024 (10) TMI 1255
Denial of input service credit - ineligible capital services - maintaining medical centre (Ambulance room) - membership of Tamil Nadu Electricity Consumer Association - what constitutes “services used directly or indirectly in relation to manufacture of final products”? - period April 2011 to March 2013 - HELD THAT:- The words 'directly or indirectly in or in relation to manufacture' used in the definition of input service, should be given a very wide meaning, subject only to the restrictions placed by the CCR 2004. Credit of service tax of duty paid towards mandatory services availed by the appellant under various Acts or which are mandatory for manufacture of goods, would hence continue to be eligible for being taken as credit, as without availing the said services, the goods cannot be manufactured, without facing penal action or other disruptions. So they are integrally connected with the ultimate production of goods/ chemicals manufactured in their factory. Moreover, services availed are not used primarily for private use or consumption of any employee and the duty paid forms a part of the final price of the product on which tax is paid.
In the KAKINADA SEAPORTS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS VISAKHAPATNAM-II [2015 (11) TMI 51 - CESTAT BANGALORE], the Division Bench examined the eligibility of taking cenvat credit on health care with ambulance facility, during the period 01/07/2012 to 31/03/2013. It was held 'provision of healthcare within the port area where accident can take place cannot be said to be having no nexus to the port service, therefore, the credit of Rs. 83,430/- is admissible.'
Although it is not a universal rule to be followed in all situations, judicial comity or judicial propriety requires that the interpretation of law made by another Bench should be followed. Moreover, the issues involve a very low tax effect and relate to an Act / Rules that has already been eclipsed with the introduction of GST. Not much would be gained by protracting litigation.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1254
Refund of un-utilised cenvat credit on closure of units - denial of refund in the absence of express statutory mandate or provisions of law - time limitation - HELD THAT:- The principle of law was settled by the Tribunal, which was affirmed by the High Court of Karnataka and the Apex Court in Slovak India Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] that since there is no manufacture in the light of closure of the company, Rule 5 is not available for the purpose of rejection as has been rightly ruled by the Tribunal and, therefore, the refund has been rightly ordered in the light of the closure of the factory and the assessee having come out of the Modvat Scheme. The appellant is, therefore, entitled to the refund as claimed by him.
In the impugned order, the Commissioner (Appeals) has also observed that the claim for refund filed by the appellant on 5.6.2018 is time barred under Section 11B of the Act, which provides that an application for refund of such duty shall be made before the expiry of one year from the relevant date. The Explanation annexed to Section 11B defines the ‘relevant date’ for the purpose of reckoning the time period within which the refund claim is to be filed.
Considering the facts of the present case, it is found that on closure of the unit at Delhi in March, 2016, the appellant vide its letter dated 30.05.2016 had requested the Department to transfer the accumulated cenvat credit to its unit at Gurgaon and thereafter, all the correspondences between the appellant and the Department had been at the Gurgaon address of the appellant. While the said request for transferring the credit amount was pending with the Department, the Central Excise Act, 1994 was repealed w.e.f. July, 2017 and as a result, the amount of cenvat credit accumulated could not be transferred to GST. In the circumstances, the appellant had no other alternative but to seek the refund of the cenvat credit amount of Rs.17,24,470/- and accordingly, the refund application was filed on 5.6.2018 - In the facts of the present case, the refund application cannot be rejected as being time barred.
The impugned order deserves to be set aside and hence, the appeal is allowed.
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2024 (10) TMI 1253
Valuation of Excise Duty - inclusion of excess freight collected by the appellant as compared to the actual freight paid to the transporter in the assessable value of the excisable goods for the purpose of charging excise duty - HELD THAT:- This issue is no longer res-integra particularly in the appellant’s own case this tribunal has held that in such case the freight is not includible in the assessable value.
This Tribunal in KASHYAP SWEETNERS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VAPI AND JITENDRA PANDEY VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VAPI [2023 (7) TMI 1111 - CESTAT AHMEDABAD] where it was held that 'excess freight collected by the appellant from the customers shall not be included in the transaction value for charging excise duty.'
The demand in the present appeals is not sustainable - Hence, impugned orders are set aside, appeals are allowed.
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2024 (10) TMI 1252
Exemption N/N. 12/2012-CE dated 17.03.2012 - procedure for goods cleared under Served from India Scheme not followed - whether Appellant wrongly availed exemption from duty for goods cleared under a specific notification? - HELD THAT:- It is found that the appellant has claimed the exemption notification no. 12/2012-CE dated 17.03.2012 which does not contain any condition except the submission of PAC which is not in dispute, therefore, the appellant is clearly entitled for the Notification No.12/2012-CE dated 17.03.2012 (Sr. no. 336). This was clearly presented before the learned Commissioner (Appeals) also but the Learned Commissioner (Appeals) has not given any finding or comment on the submission made by the appellant in this regard.
This issue has been considered by this Tribunal in the appellant’s own case vide Final Order No. 11181-11183/2024 dated 07.06.2024 [2024 (6) TMI 300 - CESTAT AHMEDABAD] where it was held that 'Once the genuineness of the invoices has been verified and found to be justify the quantum of claim of the appellant as verified by the Jurisdictional assistant Commissioner, the non-submission of undertaking by the appellant is merely procedural and the appellant should not be denied the substantial benefit merely for procedural lapse.'
In view of the above decision in the appellant’s own case, the learned Commissioner (Appeals) order without considering the entitlement of exemption N/N. 12/2012-CE is not legal and proper. Hence, the impugned order is set aside and the appeals are allowed.
Other appeal for personal penalty on Shri Tarun Santra which is consequential to the demand of duty on the company. Since the duty demand against company is not sustainable, consequential penalty will also not sustain.
Both the appeals are allowed.
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2024 (10) TMI 1251
Process amounting to manufacture - inspection, rectification of defects, complete functional testing, quality control etc. - discharge of duty on the transaction value as per Rule 16(2) of the Central Excise Rules, 2002 - HELD THAT:- This Tribunal in the appellant’s own case M/S. MRO-TEK LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE–I [2024 (4) TMI 30 - CESTAT BANGALORE] analysing the processes undertaken by them on the imported Modems which are similar to that one now applied to the indigenous goods, held 'the activities carried by the appellant in the premises at 29B/3 on imported Modems would result into ‘manufacture’ within the meaning of Section 2(f)(iii) of Central Excise Act, 1944. Consequently, the appellant are required to discharge duty on the imported Modems for the aforesaid activities in their trading premises, which amounts to manufacture.'
Therefore, there is no doubt that the processes carried out by the appellant are resulting into manufacture; hence, the duty is required to be discharged on the transaction value of the Modems as per Rule 16(2) of the Central Excise Rules, 2002.
The impugned order is set aside - the appeals are allowed
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2024 (10) TMI 1250
Demand of Differential duty - determination of assessable value - goods manufactured on job work basis by the appellant which were cleared to the principal manufacturer who consumes it captively - determination on the basis of principle laid down in the case of Ujjagar Prints or Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT:- The issue is no more res integra in view of the ratio laid down by the coordinate Bench of this Tribunal in the case of COSMOS CONDUCTORS PVT LTD VERSUS COMMISSIONER OF C.E., BANGALORE-II AND RAMACHANDRA M.G., MANAGER M/S COSMOS CONDUCTORS PVT LTD VERSUS COMMISSIONER OF C.E., BANGALORE-II [2023 (11) TMI 214 - CESTAT BANGALORE] and upheld by the Hon’ble Supreme Court in the case of COMMNR. OF CENTRAL EXCISE, PUNE VERSUS M/S. MAHINDRA UGINE STEEL CO. LTD. [2015 (4) TMI 351 - SUPREME COURT].
This Tribunal in Cosmo Conductors Pvt. Ltd.’s case observed that 'Even though the aforesaid judgement was delivered prior to insertion of Rule 10A, however, there is no change in the wordings of Rule 8 after 01.03.2007, and the facts of the present case do not fall either under sub-rule (i) or sub-rule (ii) of Rule 10A of Central Excise Valuation Rules, 2000.'
There are no merit in the impugned order in applying Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Consequently, assessable value of the job-worked goods be determined following the principle laid down in UJAGAR PRINTS ETC. ETC. VERSUS UNION OF INDIA & OTHERS [1989 (1) TMI 124 - SUPREME COURT] when the principal manufacturer (raw material supplier) uses it captively even after insertion of Rule 10A to the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 w.e.f. 01.04.2007.
The impugned orders are set aside and the appeals are allowed.
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2024 (10) TMI 1249
Reversal/Recovery of CENVAT Credit - inputs written off - Rule 3(5B) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no more res integra and considered by this Tribunal in the case of M/S. HEWLETT PACKARD INDIA SALES PVT. LTD. VERSUS THE COMMISSIONER OF SERVICE TAX, LTU, BENGALURU [2024 (8) TMI 718 - CESTAT BANGALORE]. This Tribunal after referring to the judgments in the case of M/S. ERICSSON INDIA PVT. LTD. VERSUS CCE, JAIPUR [2019 (3) TMI 776 - CESTAT NEW DELHI] and M/S. GKN DRIVELINE (INDIA) LTD. VERSUS CCE, DELHI-III [2023 (9) TMI 1131 - CESTAT CHANDIGARH], held 'erroneous availment of cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 could be recoverable only after insertion of the recovery provision to the said Rule by insertion of an Explanation through amending Notification No.3/2013-CE(NT) dated 01.03.2013 as amended only w.e.f. 01.03.2013.'
Following the above precedent and since period of recovery pertains to 2006-07 to 2008-09, the impugned order is set aside - Appeal allowed.
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2024 (10) TMI 1248
Benefit of the concessional rate of tax under Section 8 (a) (ii) of the Kerala Value Added Tax Act (KVAT Act), 2003 - import of any goods into the State or Country 'for incorporation in the works contract' - goods imported were not incorporated in the works contract for the year 2015-16 and the goods were returned to the supplier.
HELD THAT:- While it may be a fact that in the absence of any material to suggest the actual return of the imported goods, the revenue may have been justified in presuming that the goods imported were in fact for incorporation in the works contract, and in such a situation would have been justified in insisting on the assessee discharging the tax liability @ of 7% on the contract value in accordance with Section 8 (a) (i) of the KVAT Act, we find that when the Appellate Tribunal was satisfied on facts regarding proof of return of the imported goods without incorporation of the same in the works contracts undertaken by the assessee for the assessment year in question, the assessee cannot be denied the benefit of the concessional rate of tax of 4% in terms of Section 8 (a) (ii) of the KVAT Act.
The pre-condition for attracting the higher rate of tax under Section 8 (a) (i) cannot be seen as attracted on the facts of the instant case where the assessee did not hold a CST registration during the assessment year in question, and further, had returned the imported goods to the supplier without incorporating any part of it in the works contracts undertaken during the said year.
There are no reason to interfere with the impugned order of the Appellate Tribunal - OT. Revision petitions are thus dismissed by answering the questions of law raised against the revenue and in favour of the assessee.
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2024 (10) TMI 1247
Levy of Octroi by the various Municipal Councils - SIM Cards issued by the Bharti Mobile Limited and distributed in the State of Punjab, being sold in their municipal limits - whether SIM Card can be treated as “goods”? - HELD THAT:- The said question is no more res intergra, keeping in view the judgments passed by the Hon’ble Supreme Court in BSNL Vs. Union of India [2006 (3) TMI 1 - SUPREME COURT] and Idea Mobile Communication Ltd. Vs. Commr. of C. Ex. & Cus., Cochin [2011 (8) TMI 3 - SUPREME COURT] wherein the Hon’ble Apex Court while examining the imposition of sales tax on the usage of SIM, held that sales tax can be imposed.
The question of SIM card be “goods” was left to be further examined. However, in Idea Mobile’s case , the Hon’ble Apex Court has found that the SIM Cards to be never sold as “goods” independent from services provided. In view thereto, independently the SIM Cards cannot be termed as “goods” for the purpose of Octroi.
There are no hesitation to hold that the SIM Cards which have been distributed in various Municipal Councils for the relevant period were not leviable to Octroi. Accordingly, the present writ petition is allowed and the notifications dated 26.07.2001(Annexure P-6), 08.08.2001 (Annexure P-7) and 30.10.2002 (Annexure P-8) are hereby set aside.
Petition allowed.
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2024 (10) TMI 1246
Rejection of application for grant of regular 80G as time barred -Need to file regular 80G registration within a period of six months therefrom provisional registration granted - HELD THAT:- As reading from para 7 of impugned order it as an undisputed fact that the appellant assessee was granted a provisional registration u/c (iv) of s/s (5) of section 80G of the Act by an order u/c (vi) of s/s (5) of section 80G of the Act by the CIT(E) on 16/02/2022. Therefore, there remains no reason to draw out appellant’s case from claiming benefit of extended period for filing application for regular registration.
The circular 08/2023 also clarified that the extended period upto 30/09/2023 shall apply even in cases, (i) where the application was rejected by the CIT(E) on or before issuance of this circular dated 24/05/2023 (ii) where due date for making/filing application has expired, on or before 30/09/2023.
We find in similar facts & circumstance in ‘Shashvat Paediatric Care Foundation[2024 (3) TMI 1365 - ITAT PUNE], Swachh Vapi Mission Trust [2024 (3) TMI 614 - ITAT SURAT] , TB Lulla Charitable Foundation[2024 (6) TMI 798 - ITAT PUNE] and ‘Gujarat Hira Bourse[2024 (1) TMI 946 - ITAT SURAT] and ‘Bhamashah Sundarlal Daga Charitable Trust’ [2023 (11) TMI 1210 - ITAT JODHPUR]
Rejection of appellant’s application on the ground of limitation in our considered view is without appreciating the facts in its entirety and devoid of subsisting circular (supra), hence deserves to be set-aside, ergo ordered accordingly.
Non-compliance of notice seeking rectification of discrepancies and submission of copy of certificate granted u/s 12AB r.w.s. 12(1)(ac)(iii) of the Act - As we note that such notices were sent to email [email protected] belonging to a tax consultant who failed to intimate the same to the assessee for due compliance. Thus, the said non-compliance by the assessee was purely accidental & undeliberate, which better can be complied only if the matter is restored back. In view hereof, without commenting on merits, we remand the matter back to the file of Ld. CIT(E) with a direction to treat appellant’s application dt. 30/09/2023 as filed within the time limit prescribed u/c (iii) to first proviso to section 80G(5) of the Act r.w.c. 06/2023 (supra) and adjudicate the same on merits in accordance with law after according two effective opportunities.
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2024 (10) TMI 1245
Constitutional validity of exclusion (iii) to Explanation to section 17 of the CGST Act - ultra vires to the provisions of the CGST Act or not - applicability of exclusion (iii) to Explanation to section 17 of the CGST Act in case of service providers - HELD THAT:- The authorities under the Advance Ruling have primarily analysed the matter from the perspective of definitions of ‘plant’ and machinery by relying upon various dictionaries. Though there are some references to the functions, it is not as if the matter has been examined by focusing on the functionality test. The Hon’ble Supreme Court, in its judgment and order dated 3 October 2024 [2024 (10) TMI 286 - SUPREME COURT], has held that in each such case, a fact-finding enquiry is contemplated. Such an enquiry is necessary, inter alia, because such matters will have to be decided by recourse to the functionality test.
Possibly, when the Advance Ruling Authorities decided the matter, the Petitioner had yet to establish the requisite infrastructure - Respondents, is also justified in contending that the scope of judicial review in such matters is relatively minimal and, therefore, typically, determination of questions of fact not entered into unless a case of perversity is made out. However, that does not mean that a party should be deprived of an opportunity to place all relevant facts before the fact-finding authority given the circumstances arising from the Hon’ble Supreme Court’s judgment.
The order made by the Authority for Advance Ruling and the order dated 7 December 2019 made by the Appellate Authority set aside - matter remanded to the AAR for a fresh ruling in the light of the observations made by the Hon’ble Supreme Court.
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2024 (10) TMI 1244
Violation of principles of natural justice - appeal preferred by the petitioner was dismissed without hearing - time limitation - HELD THAT:- A perusal of the order indicates that the appeal was dismissed as the document which were required to be filed were not filed and the appellant was not even present before the appellate authority.
Considering the provisions contained in Section 107(8) read with relevant rules and there being no provision to dismiss the appeal for want of prosecution and following the judgment of this court in the case of M/S RAJDHANI ARMS CORPORATION, LUCKNOW THRU. PROPREITOR, SEEMA SARNA VERSUS COMMISSIONER OF COMMERCIAL TAX U.P., COMMERCIAL TAX BHAWAN, LUCKNOW [2024 (7) TMI 1391 - ALLAHABAD HIGH COURT], the impugned order dated 20.01.2024 is set aside. The appellate authority is directed to pass a fresh order in accordance with law after giving an opportunity of hearing to the petitioner.
To avoid any further delay, it is directed that the petitioner shall be present himself or through his authorized representative before the Tribunal on 06.11.2024 at 12:00 Noon. In case the petitioner does not present himself, the appellate authority would be at liberty to decide the appeal on merits in accordance with law.
Petition disposed off.
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2024 (10) TMI 1243
Parallel proceedings - both the State GST Authorities and Central GST Authorities are proceeding against the petitioner with regard to the same assessment years - HELD THAT:- It is clear from the factual matrix that Financial Year 2017-18, the actions were initiated by the respondent no.3 while for the remaining years the action was first initiated by the Central GST.
In light of the same, the Central GST is directed to continue with its investigation with regard to the show cause notice given to them except for the Financial Year 2017-18, which has already been completed by the State GST.
Petition disposed off.
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2024 (10) TMI 1242
Validity of SCN - Input Tax Credit (ITC) availed on construction goods - construction of building for leasing out to M/s Shishukunj Knowledge Society for running school - HELD THAT:- The matter of CHIEF COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX & ORS. VERSUS M/S SAFARI RETREATS PRIVATE LTD. & ORS. [2024 (10) TMI 286 - SUPREME COURT] is relating to the construction of the mall. The Apex Court has held that each mall is different, therefore, in each case fact finding enquiry is contemplated. The High Court has not decided whether the mall in question will satisfy the functionality test of being a plant. The matter has been remanded back to decide, whether, on facts, the mall in question satisfies the functionality test so that it can be termed as a plant within the meaning of bracketed portion in Section 17 (5) (d). The same applies to warehouses or other buildings except hotels and cinema theatres. The Apex Court has held that if the building in which the premises are situated qualifies for the definition of plant, ITC can be allowed on goods and services used in setting up the immovable property, which is a plant.
The petitioner was required to satisfy adjudicating authority, whether the building in question qualifies for the definition of plant in order to avail the ITC, but the petitioner instead of submitting all these necessary documents chosen not to appear before the authority and directly approached this Court. Now the final order has been passed, which has not been challenged in this petition. The petitioner is having remedy to file an appeal against the said order. The petitioner is free to file an appeal before the appellate authority, wherein the petitioner may file all the necessary documents and rely on the law laid down by the Apex Court in the case of M/s Safari Retreats Private Ltd.
Petition dismissed.
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2024 (10) TMI 1241
Issues:
1. Impugning an order allowing an appeal but upholding revenue demand, penalty, and interest.
2. Refund claim rejection despite export of goods and eligibility for refund.
3. Remittance of the matter due to non-production of original documents.
4. Denial of consequential benefits to the petitioner.
5. Limitation on filing a fresh application and claiming interest.
Analysis:
1. The petitioner challenged an order dated 29.03.2024 that allowed their appeal but upheld the revenue demand, penalty, and interest. The petitioner contended that a part refund was granted subject to document production, but a subsequent order rejected the refund claim and upheld the revenue demand prematurely.
2. The Senior Counsel argued that the petitioner's export of goods entitled them to a refund under Section 54 of the CGST Act, 2017. The Appellate Authority recognized the eligibility for refund based on the main input supply of coal. The matter was remitted due to the non-production of original documents, allowing the petitioner to submit the relevant paperwork.
3. Despite the remittance, the petitioner was informed that they would not receive any consequential benefits. This decision meant that the revenue could pursue recovery without granting interest or other benefits, even if the petitioner succeeded in the Adjudicating Authority.
4. Additionally, the Senior Counsel highlighted that the petitioner would be prohibited from submitting a fresh application due to system restrictions. Any subsequent application would result in the denial of interest for the period between the first and second applications.
5. The Court issued notice to the respondent and directed the filing of a counter affidavit within four weeks. The operation of the order upholding the revenue demand was stayed, allowing the Adjudicating Authority to consider the refund claim independently. The petitioner was permitted to file a new refund application, with the Court reserving judgment on the claim for interest during the interim period.
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2024 (10) TMI 1240
Challenge to SCN demanding input tax credit availed by the Petitioner along with interest and penalty - ITC in respect of the IGST paid on manpower supply services received by the Petitioner during the period 2017- 2022 - HELD THAT:- A perusal of the material on record and the submissions made by both sides will clearly indicate that prior to the State GST Authorities issuing the impugned Show Cause Notices at Annexures – A, Al and A2 is concerned, the Central GST Authorities had already initiated proceedings as against the petitioner and consequently, in the light of Section 6(2)(b) of the KGST Act, 2017 which contemplates a complete bar / embargo on the State GST Authorities to initiate proceedings in a situation where the Central GST Authorities had already initiated proceedings as against the petitioner in respect of the same subject matter. The impugned Show Cause Notices at Annexures — A, Al and A2 are clearly illegal, arbitrary and without jurisdiction or authority of law and contrary to the aforesaid statutory provisions and the same deserve to be quashed.
The challenge to the impugned Show Cause Notice at Annexure-B can be disposed of by directing the petitioner to submit a suitable reply together with the relevant documents and by directing the concerned respondent Nos.1, 3 and 4, Central — GST Authorities to consider the same and proceed further in accordance with law bearing in mind the observations made (Section 13(3)(C) of the CGST Act, 2017, Section 128A of the CGST Act, 2017, Circular No. 211/5/24- GST dated 26.06.2024 etc.).
The impugned Show Cause Notices at Annexures — A, A1 and A2 dated 05.08.2023, 05.08.2023 and 06.10.2023, respectively, are hereby quashed - The petition is allowed in part.
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2024 (10) TMI 1239
Levy of penalties u/s 122 and 129 of the CGST/SGST Acts - Expiry of the e-way bill - mens rea in penalty imposition - HELD THAT:- In the facts of the present case, the e-way bill was generated at 10:00 P.M on 23.10.2021 for transporting goods over a distance of about 107 km and the e-way bill was therefore valid for a period of 24 hours, i.e., till 10:00 P.M on 24.10.2021. The third proviso to Sub-rule (10) of Rule 138 of the CGST/SGST Rules indicates that the petitioner had time till 06:00 AM on 25.10.2021 to extend the validity of the e-way bill. However, the petitioner had not done so and the vehicle was intercepted at 09:59 A.M on 25.10.2021.
Technically, there is a violation of the law by the petitioner and the reason stated for transporting goods without revalidating the e-way bill (see paragraph 4 of the writ petition) may not be supported by any material. However, the question remains as to whether this should automatically lead to the initiation and conclusion of the proceedings under Section 129 of the CGST/SGST Acts resulting in the imposition of a huge amount as tax and penalty. The learned Government Pleader may be right in contending that there is justification for the initiation of proceedings under Section 129 of the CGST/SGST Acts in the facts of this case.
However, once a plausible explanation is provided by the transporter/assessee, and it is found that there is no attempt to evade any tax, the question remains as to whether the proceedings must thereafter culminate in an order under Section 129 of the CGST/SGST Acts imposing the maximum penalty in terms of the provisions contained in Section 129 of the CGST/SGST Acts. While the initiation of the proceedings under Section 129 of the CGST/SGST Acts, in the facts of this case, cannot be found to be without jurisdiction, the fact remains that once the transporter/assessee had offered an explanation and had demonstrated that there was no attempt to evade tax and in the absence of any finding of an attempt to evade tax, the officer should have imposed a penalty as contemplated by the provisions of Section 122 (1) (xiv) of the CGST/SGST Acts only, without imposing penalty as contemplated by the provisions of Section 129 of the CGST/SGST Acts.
Coming to the judgment of a Division Bench of this Court in Daily Express [2019 (3) TMI 596 - KERALA HIGH COURT] it has to be held that the decision follows the view taken by the same bench in Indus Towers Ltd [2018 (7) TMI 1181 - KERALA HIGH COURT]. It no doubt takes the view that in a case covered by Section 129 and in view of the non-obstante clause neither the general discipline in the imposition of penalties in Section 126 nor the provisions of Section 122 would bar the imposition of penalty under Section 129.
It is declared that the provisions of Section 129 of the CGST/SGST Acts do not authorise the imposition of tax/penalty as contemplated by the provisions of Section 129 (1) (a) or Section 129 (1) (b) in cases where only minor discrepancies are noticed and such penalty can be imposed only for violations which may lead to evasion of tax or where the transport was with an intent to evade tax or in cases of repeated violations (even of a minor nature). In other cases, the authorities will impose penalties having due regard to the provisions of Sections 122 and 126 of the CGST/SGST Acts. In the facts of the present case, this Court is of the considered opinion that a penalty of Rs. 10,000/-, as contemplated by the provisions of Section 122 (1) (xiv) of the CGST/SGST Acts can be imposed. On payment of the penalty as directed above, the Ext.P7 bank guarantee produced by the petitioner shall be released to it.
Petition disposed off.
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