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Showing 401 to 420 of 1519 Records
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2025 (5) TMI 1119
Inherent jurisdiction under Section 482 of the CrPC - Challenged the separate summon orders - dishonour of cheque - returned unpaid vide return memo remarks “payment stopped by the drawer.” - unimpeachable material - Whether the petitioners who were/are directors/shareholders of the petitioner company can be made liable on account of them being associated with the Accused No. 1 company - petitioners are not a signatory to the subject cheques - principle of vicarious liability - Applicability of criminal liability under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (NI Act) - HELD THAT:- It is pertinent to note that Section 141 of the NI Act does not specify the designation/position that a person must hold in the accused company in order for them to be vicariously liable. Section 141 of the NI Act merely asseverates that when the principal offender is the company, then any person who was in charge of and was responsible to the company for the conduct of the business of the company shall be liable to be proceeded against. The relevance of the term “and” appearing between the phrases “was in charge of” and “was responsible to the company for the conduct of the business of the company” as appearing in Section 141 (1) of the NI Act was emphasised by the Hon’ble Apex Court in the case of Ashok Shewakramani and Others v. State of Andhra Pradesh and Another [2023 (8) TMI 599 - SUPREME COURT].
In line with the dictum of the Hon’ble Apex Court in Ashok Shewakramani and Others v. State of Andhra Pradesh and Another [2023 (8) TMI 599 - SUPREME COURT] and Section 141 (1) of the NI Act, to fasten liability, the petitioners ought to be in charge of and responsible for the conduct of the accused company at the time of commission of the offence. It is pertinent to note that mere per se association with the accused company does not tantamount to mean that the petitioners were in charge of or responsible to the company for the conduct of the business of the accused company. It must be shown that the petitioners were not only in charge of but were also responsible to the company for the conduct of the business of the company.
Merely because the petitioner company - M/s. SAM India Builtwell Pvt. Ltd, at some stage, held 2000 equity shares amounting to approximately 0.3 % shareholding in Accused No. 1 company does not tantamount to mean that the directors/shareholders of the petitioner company would also be considered to be incharge of and responsible for the conduct of Accused No. 1 company. The petitioners cannot be stitched to be bound to the affairs of Accused No. 1 company by the mere thread that the petitioner company at some stage held of 0.3% shareholding in Accused No. 1 company.
The principle of vicarious liability enshrined under Section 141 of the NI Act cannot be stretched to such extravagant lengths so as to enmesh any person even associated with the accused company to be caught in the web of culpability. From the record, it is borne out that the petitioners were neither signatory nor responsible to the Accused no. 1 for the conduct of its affairs.
Even otherwise, the petitioner company - M/s. SAM India Builtwell Pvt. Ltd, long back in the assessment year 2014-2015 had transferred its 2000 equity share in equal proportion to accused Vinay Jain and Asha Jain before the subject cheques were issued or dishonoured in the year 2017.
Thus, the present petitions are allowed and the proceedings emanating from Complaint for the offence under Section 138 read with Section 141 of the NI Act qua the petitioners are quashed.
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2025 (5) TMI 1118
Challenged the maintainability of the complaint - Dishonor of Cheque - declaration of moratorium - Corporate Insolvency Resolution Process of the petitioner company is underway before the NCLT - Offence under Section 138 of the Negotiable Instruments Act, 1881 - Validity of moratorium declared under Section 14 of Code - HELD THAT:- Admittedly, the petitioner is a corporate debtor. One M/s. Amar Constructions (operational creditor) has approached the NCLT, Indore Bench by presenting an insolvency petition against the corporate debtor. The applicant therein filed CP(IB)/81/MP/2022 before the NCLT under Section 9 of the Code. The Tribunal has declared a moratorium under Section 14 of the Code as per its order dated 22.3.2024. Subsequently, as per order dated 16.5.2024, the Tribunal appointed a resolution professional for the petitioner. The Corporate Insolvency Resolution Process is now underway.
This Court in Jacob Samson v. State of Kerala [2022 (12) TMI 1565 - KERALA HIGH COURT] reiterated the principles underlined by the Supreme Court.
Thus, the conclusions are the following:-
(i) When the Corporate Insolvency Resolution Process of the company is underway, the corporate debtor would be covered by the moratorium provision contained in Section 14 of the Code by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted.
(ii) The moratorium provision under Section 14 of the Code would apply only to the corporate debtor.
(iii) The natural persons referred to in Section 141 of the N.I. Act continues to be statutorily liable under Chapter XVII of the N.I. Act.
Therefore, the order impugned stands set aside. All further proceedings in C.C.No.996 of 2021 on the file of the Judicial First Class Magistrate Court-XII, Thiruvananthapurm against the petitioner (corporate debtor)/accused No.1 shall stand deferred till the moratorium is lifted by the competent authority. The learned Magistrate is at liberty to proceed against the natural persons.
This Court in O.P.(Crl.)No.730 of 2023 had directed the learned Magistrate to expedite the trial in the Calendar Case. The learned Magistrate may proceed with the case against the natural persons in compliance with the directions of this Court in O.P. (Crl.)No.730 of 2023.
The Original Petition is disposed of as above.
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2025 (5) TMI 1117
Cnacellation of registration - lack of jurisdiction - SCN was devoid of any reasons and the order passed by the original authority cancelling the registration was devoid of reasons - Violation of principles of natural justice - HELD THAT:- The scope of consideration of the grounds on which the appellant had challenged the impugned orders is limited in a proceedings under Article 226 of the Constitution though this court can at times examine the correctness of the appellate authority’s order as well as the original authority’s order by considering the merits of the matter since the dealers have invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution on account of non-availability of statutory remedy before the tribunal because the tribunal is yet to be constituted - in the instant case on perusal of the show cause notice dated 15.12.2021, the same is bereft of any particulars.
In any event since the show cause notice did not contain any reasons, it is a notice which is nonest in the eye of law as the appellant did not have adequate opportunity to rebut the allegations against it since the allegations were not set out in the show cause notice - This inherent defect goes to the root of the matter which cannot be cured or rectified at a subsequent stage or in the appellate stage.
The initiation of the proceedings by issuance of the show cause notice is flawed - all subsequent proceedings have to fail on the ground of error of jurisdiction as well as on the ground of violation of principle of natural justice.
Appeal allowed.
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2025 (5) TMI 1116
Disallowance of Input Tax Credit (ITC) - purchase of Superior Kerosene Oil (SK Oil) for distribution under the Public Distribution System (PDS) - ex parte assessment order passed under Section 73 of the CGST Act, without affording the petitioner an opportunity to produce books of accounts and substantiate the ITC claim - Violation of principles of natural justice - HELD THAT:- In the instant case, there is no allegation of suppression. It is the input tax credit claimed in the returns in respect of tax paid under the Central Goods and Services Tax Act, 2017/the Odisha Goods and Services Tax Act, 2017 (GST Act) on receipt/purchase of Superior Kerosene Oil from IOCL- supplier at the price fixed by the supplier as against sale/supply/distribution thereof under the PDS at the price fixed by the Government has been disallowed in the assessment.
On perusal of Section 16 of the GST Act, it is clear that every registered taxable person can claim the benefit of ITC only on fulfilment of certain conditions as enumerated thereunder. Sub-section (1) of Section 16 deals with the eligibility of a registered person to avail of ITC on any supply of goods, or services or both which are used or intended to be used in the course or furtherance of his business and the said amount is to be credited to the electronic credit ledger of such person. The conditions enabling such benefit are available in said section. The existence of a tax invoice or debit note issued by the supplier, proof of receipt of goods or services or both and the tax charged in respect of such supply having been actually paid to the Government, either in cash or through utilization of ITC admissible in respect of the said supply. The said conditions are to be satisfied together and not separately or in isolation, and these are the conditions and restrictions which would regulate the availment of ITC. Input tax credit by the very nomenclature contemplates a credit being available for the purchaser-registered person in its credit ledger by way of payment of tax by the supplier to the Government.
In State of Karnataka Vrs Ecom Gill Coffee Trading Private Limited, [2023 (3) TMI 533 - SUPREME COURT] the assessee was saddled with the burden of proving inter alia any claim to ITC under the Act. The registered taxable person who claims input tax credit has to prove beyond doubt, the actual transaction by furnishing the name and address of the supplier, details of the vehicle delivering the goods, payment of freight charges, acknowledgment of taking delivery of goods, tax invoices and payment particulars etc. It was also held that to sustain a claim of input tax credit on purchases, the recipient would have to prove and establish the actual physical movement of the goods and genuineness of transactions, by furnishing the details referred to above and mere production of tax invoices would not be sufficient to claim ITC. Thus, the primary responsibility of claiming the benefit is upon the person claiming the benefit and he is required to lead evidence to prove and establish the actual physical movement of goods, genuineness of transactions, etc. and if such person fails to prove the actual physical movement of goods, the benefit cannot be granted.
The mechanism for claiming ITC has been introduced in the tax regime, all over the country for the purpose of avoiding the cascading effect of taxes. The benefit of such credit being availed by a registered person who sells/supplies or manufactures goods, using raw materials on which tax has been paid is a benefit or concession conferred under the statute. The condition under which the concession and benefit is given is always to be strictly construed. The GST statute contains self-contained scheme of levy, computation and collection of tax. The time under which a return is to be filed for purpose of assessment of the tax cannot be dependent on the will of a taxable person.
Diligent scrutiny of materials available on record indicates that the petitioner did not have proper opportunity to substantiate his claim made in the return vis-à-vis books of accounts. Therefore, this Court is of the considered view that the petitioner is entitled to one opportunity before the Assessing Authority.
Conclusion - The assessment order disallowing ITC and raising demand, interest, and penalty is unsustainable in the absence of proper verification and opportunity to the petitioner.
The impugned ex parte assessment order dated 28.08.2024 framed under Section 73 of the GST Act by the Assistant Commissioner, GST & Central Excise, Cuttack-I Division, Cuttack is hereby set aside - Petition disposed off.
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2025 (5) TMI 1115
Challenge to adjudication order and SCN - Vires of N/N. 56/2023 (Central Tax) dated 28th December, 2023 and Notification 09/2023 (Central Tax) dated 31st March, 2023 - extension of time limit for adjudication of show cause notices and passing orders u/s 73 of the GST Act - personal hearing not provided - violation of principles of natural justice - HELD THAT:- The Court has perused the records. Upon such perusal, it is noticed that the impugned order dated 25th August, 2024 is a detailed order that has been passed considering various aspects, and some of the demands have, in fact, been dropped upon considering the reply filed. In view thereof, the Court is of the opinion that the impugned order does not warrant interference under writ jurisdiction and the same would be a fit case for appeal.
Accordingly, the Petitioner is permitted to file an appeal along with the requisite pre-deposit by 10th July, 2025. If the appeal is filed within the stipulated time, the same shall not be dismissed on limitation and shall be heard on merits.
Petition disposed off.
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2025 (5) TMI 1114
Challenge to impugned SCN and demand notice - Vires of N/N. 9/2023-Central Tax dated 31st March, 2023 issued by the Central Board of Indirect Taxes and Customs - extension of time limit for adjudication of show cause notices and passing orders u/s 73 of the GST Act - personal hearing not provided - violation of principles of natural justice - HELD THAT:- The Court has perused the records. In fact, this Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded vide ‘Additional Notices Tab’ had remanded the matter holding that 'The impugned demand orders dated 23rd April, 2024 and 5th December, 2023 are accordingly set aside. In response to show cause notices dated 04th December, 2023 and 23th September, 2023, the Petitioner shall file its replies within thirty days. The hearing notices shall now not be merely uploaded on the portal but shall also be e-mailed to the Petitioner and upon the hearing notice being received, the Petitioner would appear before the Department and make its submissions.'
It is relevant to note that post 16th January 2024, the Department has effected changes in the portal to ensure that the SCNs become visible to parties. However, the SCN in the present case is of 25th September, 2023. Therefore, following the above decision, the impugned order is set aside. Let the entire matter be considered afresh after giving a personal hearing notice to the Petitioner.
Petition disposed off.
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2025 (5) TMI 1113
Challenge to impugned SCN and demand order - Vires of N/N. 56/2023 (Central Tax) dated 28th December, 2023 and Notification 09/2023 (Central Tax) dated 31st March, 2023 - extension of time limit for adjudication of show cause notices and passing orders u/s 73 of the GST Act - personal hearing not provided - violation of principles of natural justice - HELD THAT:- The Court has perused the records. In fact, this Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded vide ‘Additional Notices Tab’ had remanded the matter holding that 'The impugned demand orders dated 23rd April, 2024 and 5th December, 2023 are accordingly set aside. In response to show cause notices dated 04th December, 2023 and 23th September, 2023, the Petitioner shall file its replies within thirty days. The hearing notices shall now not be merely uploaded on the portal but shall also be e-mailed to the Petitioner and upon the hearing notice being received, the Petitioner would appear before the Department and make its submissions.'
It is relevant to note that post 16th January 2024, the Department has effected changes in the portal to ensure that the SCNs become visible to parties. However, the SCN in the present case are of 23rd September, 2023 and 14th December, 2023. Therefore, following the above decision, the impugned order is set aside. Let the entire matter be considered afresh after giving a personal hearing notice to the Petitioner.
Petition disposed off.
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2025 (5) TMI 1112
Vires of Notification No. 09/2023-Central Tax dated 31st March, 2023 - HELD THAT:- This Court had the opportunity to hear a batch of petitions wherein inter alia, the impugned notification had been challenged. The DJST Traders Private Limited v. Union of India & Ors. [2025 (5) TMI 43 - DELHI HIGH COURT] is the lead matter in the said batch of petitions. In the said petition, on 22nd April, 2025, the parties were heard at length qua the validity of the impugned notifications and accordingly it was held that 'Broadly, there are six categories of cases which are pending before this Court. While the issue concerning the validity of the impugned notifications is presently under consideration before the Supreme Court, this Court is of the prima facie view that, depending upon the categories of petitions, orders can be passed affording an opportunity to the Petitioners to place their stand before the adjudicating authority. In some cases, proceedings including appellate remedies may be permitted to be pursued by the Petitioners, without delving into the question of the validity of the said notifications at this stage.'
Thereafter, on 23rd April, 2025, this Court, having noted that the validity of the impugned notifications is under consideration before the Supreme Court, had disposed of several matters in the said batch of petitions after addressing other factual issues raised in the respective petitions. Additionally, while disposing of the said petitions, this Court clearly observed that the validity of the impugned notifications therein shall be subject to the outcome of the proceedings before the Supreme Court.
Petition disposed off.
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2025 (5) TMI 1111
Challenge to SCN and impugned order - challenge to N/N. 09/2023-Central Tax dated 31st March 2023, 09/2023-State Tax dated 22nd June 2023 - opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- This Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded vide ‘Additional Notices Tab’ had remanded the matter.
It is relevant to note that post 16th January 2024, the Department has effected changes in the portal to ensure that the Show Cause Notices become visible to parties. However, in this case, considering the Show Cause Notice in the present case has been issued on 26th September, 2023 the Court is inclined to grant the Petitioner an opportunity to be properly heard.
The impugned order dated 17th December, 2023 is set aside and the Petitioner is permitted to file a reply to the Show Cause Notice dated 26th September, 2023 on or before 10th July, 2025 - Petition disposed off.
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2025 (5) TMI 1110
Vires of Notification No. 56/2023-Central Tax dated 28th December, 2023 and Notification No. 56 of 2023-State Tax dated 11th July, 2024 - Petitioner was not provided a proper hearing to present his case on merits - Principles of natural justice - HELD THAT:- The Court has heard the parties and perused the records. Upon considering the totality of the circumstances and the fact that the Petitioner was not provided a proper hearing to present his case on merits, the Court is inclined to give the Petitioner another opportunity to be heard.
The impugned order dated 26th April, 2024 is set aside. The Show Cause Notice shall now be replied to by the Petitioner, both on the question of non-satisfaction of audit conditions under Section 66 as also on merits. The reply shall be filed by 10th July, 2025 - Petition disposed off.
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2025 (5) TMI 1109
Vires of Notification No. 56/2023-Central Tax dated 28th December, 2023 and Notification No. 56 of 2023-State Tax dated 11th July, 2024 - Petitioner was not provided a proper hearing to present his case on merits - Principles of natural justice - HELD THAT:- The Court has heard the parties and perused the records. Upon considering the totality of the circumstances and the fact that the Petitioner was not provided a proper hearing to present his case on merits, the Court is inclined to give the Petitioner another opportunity to be heard.
The impugned order dated 23rd April, 2024 is set aside. The Show Cause Notice shall now be replied to by the Petitioner, both on the question of non-satisfaction of audit conditions under Section 66 as also on merits. The reply shall be filed by 10th July, 2025 - Petition disposed off.
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2025 (5) TMI 1108
Challenge to adjudication order and SCN - Vires of N/N. 09/2023-State Tax dated 22nd June, 2023 issued by the Government of NCT, Delhi - extension of time limit for adjudication of show cause notices and passing orders u/s 73 of the GST Act - personal hearing not provided - violation of principles of natural justice - HELD THAT:- The present petition is a part of a batch of petitions wherein inter alia, the impugned notifications have been challenged. The decision in DJST Traders Private Limited v. Union of India & Ors. [2025 (5) TMI 43 - DELHI HIGH COURT] is the lead matter in the said batch of petitions. On the last date of hearing i.e., 22rd April, 2025, the parties were heard at length qua the validity of the impugned notifications and accordingly, the following order was passed 'Broadly, there are six categories of cases which are pending before this Court. While the issue concerning the validity of the impugned notifications is presently under consideration before the Supreme Court, this Court is of the prima facie view that, depending upon the categories of petitions, orders can be passed affording an opportunity to the Petitioners to place their stand before the adjudicating authority. In some cases, proceedings including appellate remedies may be permitted to be pursued by the Petitioners, without delving into the question of the validity of the said notifications at this stage.'
As observed by this Court in the order dated 22nd April, 2025, since the challenge to the above mentioned notification is presently under consideration before the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. [2025 (4) TMI 60 - SC ORDER], the challenge made by the Petitioner to the notification in the present proceedings would have to await the outcome of the decision of the Supreme Court.
Accordingly, list this matter on 11th September, 2025.
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2025 (5) TMI 1107
Ex-parte order - Prayer for direction to set aside order, adjudicated the show-cause notice dated 13.12.2023 without following the principles of natural justice - HELD THAT:- The decision of this Court in case of Graziano Trasmissioni India Pvt. Ltd. vs. State of Gujarat [2022 (7) TMI 752 - GUJARAT HIGH COURT] and Alkem Laboratories Ltd. vs. Union of India [2021 (2) TMI 433 - GUJARAT HIGH COURT] and other decisions will need to come to the rescue of the petitioner which insist on providing the opportunity of personal hearing when any adverse decision is contemplated, even without any request for personal hearing on the part of the party concerned.
In view of the above submissions of the learned advocates for the respective parties and without going into merits of the matter, impugned order-in-original dated 17.02.2024 issued by respondent No.2 is hereby quashed and set aside with all consequential proceedings. The respondent authorities shall pass fresh de novo order after providing an opportunity of hearing to the petitioner and after considering the submissions which may be made by the petitioner in accordance with law. Such exercise shall be completed within a period of 12 weeks from the date of receipt of copy of this order.
Petition disposed off.
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2025 (5) TMI 1106
Calculation of GST - value of the Silver supplied free of cost by the Naval Formations (in the form of old batteries) are to be included in the taxable value adopted by the applicant on the batteries manufactured by the applicant and supplied to the Naval Formations for the purpose of payment of GST or not - HELD THAT:- In the instant case, the free supply material supplied by the recipient of goods to the supplier is an additional consideration (non-monetary) for the supply. This non-monetary consideration i.e supply of used batteries free of cost has a direct nexus with the underlying supply. The appellant stands to gain substantial economic benefit out of the free issue material provided by the receiver of goods. Here the appellant is not paid wholly in money. The contract is for the supply of Silver Oxide - Zinc Torpedo propulsion Battery Type A-187M3-Complete with Hardware. The main input/raw material namely Silver is supplied free of cost against Bank Guarantee in the form of old and used batteries by the recipient, in addition to the consideration in money value for the supply of said Silver Oxide - Zinc Torpedo propulsion Battery. Hence, the provision of Section 15 (1) of the CGST Act, 2017 alone is not sufficient to adopt the transaction value as the value of supply of goods or services or both is not applicable for determining the value of supply in the appellant’s case when a substantial part of raw material viz, Silver is supplied free of cost by the receiver of supply.
As per Section 15 (4) of the Act, where the value of the supply of goods or services or both cannot be determined under sub-section (1) of Section 15, the same shall be determined in such manner as may be prescribed. Accordingly, corresponding rules for valuation under various circumstances are prescribed for ascertaining the taxable value in such cases.
The value of Silver supplied free of cost by the Naval formation in the form of old batteries is required to be included in the taxable value in terms of provisions of Section 7 read with Section 2 (31), Section 15 (2) (b) as also Section 15 (4) of the CGST/TNGST Act read with Rule 27 (b) of the CGST/TNGST Rules, 2017.
Conclusion - The consideration for supply under GST includes both monetary and non-monetary components, and free supplied integral raw materials must be valued and included in the taxable value.
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2025 (5) TMI 1105
Supply of service or not - activity of leasing of weekly market to the tender contractors for the purpose collection of fee on the week market days basis from the merchants/ farmers/ public for usage of the open space for selling of fruits / vegetables / domestic animals / birds etc. - activity covered under the function entrusted to Panchayat under the ELEVENTH SCHEDULE under Article 243G as a local authority in which we are engaged as public authority or not - applicability of Central Tax N/N. 14/2017-Rate, dated 28.06.2017 as amended as well as under State Tax Tamil Nadu G.O. (Ms.) No. 75, dated 29.06.2017-GST
HELD THAT:- The supply is not related to goods, but there is rendering of services.
If the activities of transactions by the Central Government or State Government or Union Territory or any local authority, if engaged as a ‘public authority’ and does the functions entrusted to ‘municipality’ or ‘panchayat’ under article 243W or 243G of the Constitution, all such activity are out of the purview of the taxable net and shall be treated neither as supply of goods nor as supply of services. One such activity is provision of Markets and Fairs’ by the panchayat, done through tender contractor is collection of entry fees for sell vegetables, fruits, birds and animals etc. for venders/ farmers/ public in the open space/temporary tents on the days fixed for weekly market days, which will fall under Sl. No.22 of the functions entrusted to a Panchayat.
The purpose of providing certain functions entrusted to the Panchayat will not change the essential characteristics envisaged under the Article irrespective of the person providing the services entrusted. Only for administrative and operational convenience, the functions entrusted to a panchayat under the Article are being provided. It is important to determine whether the activities provided by the contractor is the same function entrusted to a panchayat in the Constitution and to ensure that the intention of the provisions contained in the Constitution is fulfilled - the activity undertaken by the corporation is an activity covered under the Notification No. 14/2017-CT (Rate) dated 28-06-2017, as amended as ‘neither a supply of goods nor a supply of services’ and out of purview of GST and the notification is available for the Contractor also provided the same are rendered as back to back services to the applicant.
‘Back to back contract’ or agreement is a one where a main contractor pass on his obligations, responsibilities and liabilities to their sub-contractors bound by the same terms and conditions. Since a government cannot involve directly in all the functions entrusted to them, they may enter into back to back contract either partially or fully to complete the functions in a timely manner. Mainly this type of back to back contracts are provided to the sub-contractors to ensure smooth execution of the process without any hustle.
Conclusion - i) The activity of leasing, to the tender contractor, the right to collect entry fees, for sell vegetables, fruits, birds and animals etc. for venders/ farmers/ public in the open space / temporary tents on the days fixed for weekly market days would be covered under the function entrusted to Panchayat under Article 243G of the Constitution as a local authority engaged as public authority. ii) Notification No. 14/2017-CT(Rate) dated 28-06-2017 as amended by Notification No. 16/2018-CT (Rate) dated 26th July, 2018 issued in terms of Section 7 (2) (b) of CGST/TNGST Act, 2017, is very much available to claim as the activity is ‘neither supply of goods nor supply of services’.
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2025 (5) TMI 1104
Violation of principles of natural justice - rejection of application in terms of the proviso to section 98(2) of the CGST Act, 2017, on the grounds of it being vague and incomplete - HELD THAT:- On going through the application, it is constrained to state that the application is vague, incomplete, and without any primary details about their business activity, viz, the supply they are engaged in, their inputs, etc. On going through the certificate of analysis from Navyug Analytical Laboratory dated 22.7.2023, [enclosed with the application in addition to the undated and unsigned letter mentioned above], it is not forthcoming as to how the same is relevant. In-fact the application is not accompanied with any write-up giving relevant facts having a bearing on the question raised before us. Further, even the authorized representative admitted during the course of personal hearing that the application lacks relevant details, write up, etc.
The application rejected in terms of sub section (2) of Section 98.
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2025 (5) TMI 1103
Classification of goods - GST rates applicable to all items under HSN 9401, distinguishing between car seats (HSN 94012000) and other subcategories - resolving of discrepancies during BOE filing for imported car seats to reflect the correct GST rate - other parts can fall under CH 87089900 attracting GST @ 28% or not - HELD THAT:- On going through the application, it is constrained to state that it is completely vague without even the basic details as to the business activity of the applicant, their inputs, the manufacturing process they are involved in, etc. We find that the questions posed are also related to Customs, which is beyond the scope of section 97 (2) of the CGST Act, 2017. As already mentioned above, in addition to the application being vague and incomplete, even the questions are not as per section 97 (2).
The aforementioned application filed by M/s. Yanfeng Seating (India) Pvt Ltd is rejected in terms of section 98 (2) of the CGST Act, 2017 read with sections 95(a), (c) and 97 of the CGST Act, 2017.
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2025 (5) TMI 1102
Maintainability of Advance Ruling application - Restriction of refund on outward supply of products in which notified product is used as inward supply - N/N. 5/2017-CT (R) dated 28.6.2017 read with N/N. 9/2022-CT (R) dated 13.7.2022 - HELD THAT:- A conjoint reading of the sections 95 (a) and (c), & 97 of the CGST Act, 2017, depicts that advance ruling means a decision by the AAR [Authority for Advance Ruling] to an applicant on matters or on questions specified under 97 (2) ibid in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant; that an applicant, means any person registered or desirous of obtaining registration under this Act; that such an applicant, may make an application in the prescribed form with appropriate fee, stating the question on which the said ruling is sought. The questions on which the ruling is sought is however, restricted to the 7 [seven] issues listed in section 97 (2), ibid.
It is found that vide this application, the applicant has sought clarification regarding availability of refund ie whether the refund is restricted on outward supply of such products or also of products in which a notified product is used as an inward supply - Refund, not being one amongst the seven issues listed in section 97 (2), ibid, we are left with no option but to reject the application.
The aforementioned application filed by M/s. Saket International is rejected in terms of section 98(2) of the CGST Act, 2017 read with sections 95(a), (c) and 97 of the CGST Act, 2017.
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2025 (5) TMI 1101
Eligibility to claim Input Tax Credit (ITC) of Integrated Goods and Services Tax (IGST) paid on import of parts used in warranty services, where the IGST on such imports has been paid by the foreign supplier and not by the applicant - HELD THAT:- The applicant has entered into a Dealership and Service Representation agreement with M/s. MUEGGE GmbH, Germany, as a consequence of which, they are obliged to provide warranty service to the customers of M/s. MUEGGE GmbH. As a part of the warranty service, the applicant requires parts for the microwaves, which are imported. The IGST in respect of the said imports is paid by M/s. MUEGGE GmbH. Since warranty is free, the applicant, in respect of the said supply, raises the invoice against M/s. MUEGGE GmbH for the supply of warranty service. The above arrangement comes forth on going through the Agreement between the applicant and M/s. Muegge, Germany.
The applicant has provided a copy of the invoice, raised on M/s. MUEGGE GmbH towards warranty service, as mentioned supra. As is evident, the invoice is towards repairs and service charges and does not include the cost of spare parts. The application is also silent on the crucial aspect of whether the invoice raised on M/s. MUEGGE GmbH, includes the cost of parts also. It is found that spare parts does not form part of the invoice, more so since it is M/s. MUEGGE GmbH who is discharging the payment in respect of the IGST at the time of import, though the import is in the name of the applicant, as is evident from a sample bill of entry provided with the application. However, as far as availment of ITC as is reflected in the GSTR-2B is concerned, the applicant would not be entitled to avail the same.
Conclusion - The applicant is not eligible for IGST on imports of parts paid by the foreign supplier M/s. MUEGGE GmbH, in terms of section 16 of the CGST Act, 2017.
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2025 (5) TMI 1100
Eligibility of proportionate Input Tax Credit (ITC) on inputs, input services, and capital goods used in the construction and installation of a Pre-Engineered Building (PEB) and associated structures supporting an overhead crane in an integrated factory setting - whether the ITC, in this case is blocked by sub-sections viz section 17 (5) (c) and (d), ibid? - HELD THAT:- The Hon’ble Supreme Court in M/s. Safari Retreats P Ltd [2024 (10) TMI 286 - SUPREME COURT], while analyzing section 17 (5) (c), ibid, has concluded that in the case of works contract, benefit of ITC is not available in respect of services supplied for the construction of immovable property, subject however to two exceptions [a] when the goods, services, or both, are received for construction of ‘plant and machinery’; and [b] where the works contract service supplied for the construction of immovable property is an input service for further supply of the works contract. What however cannot be ignored is also the fact that in the second Explanation under section 17 (5), ibid, land, building or any other civil structures have been excluded from the definition of plant and machinery.
The Hon’ble Supreme Court further, explains that construction is said to be on a taxable person’s “own account” when [i] it is made for his personal use and not for service; or [b] it is to be used by the person constructing as a setting in which business is carried out further stating that construction cannot be said to be on a taxable person’s “own account” if it is intended to be sold or given on lease or license.
The ITC on inputs and input services used for construction of immovable property, is hit by section 17 (5) (c) & (d), ibid and hence ITC is not eligible on this count. Our finding is also substantiated vide the amendment in section 17 (5) (d) through Finance Act, 2025.
Whether proportionate ITC is admissible for supply of other capital goods like rails electrification, etc. installed or erected for smooth operation of crane? - HELD THAT:- Once these are embedded in the civil structure and become an immovable property, the credit stands blocked in terms of section 17 (5) (c) and (d), ibid. Thus, the averment regarding availment of proportionate credit in respect of other capital goods like rails electrification, etc. installed or erected for smooth operation of crane, is not legally tenable.
Conclusion - i) Steel, Cement and other consumables etc., to the extent of their actual usage in the execution of works contract service when supplied for construction of immovable property, in the form of the factory which is an Integrated Factory Building with Gantry Beam, which in turn is used for mounting across the pre-cast concrete beams, poles over which the crane would be operated. ii) Installation and Erection Services of the PEB when supplied for construction of immovable property, in the form of the factory which is an Integrated Factory Building with Gantry Beam, which in turn is used for mounting across the pre-cast concrete beams, poles and over which the crane would be operated. iii) Other capital goods like rails, electrification, etc. installed or erected for smooth operation of the crane.
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