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Showing 141 to 160 of 1466 Records
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2024 (6) TMI 1326
Levy of service tax - scope of service - amount realized from the customers over and above the amount of trading/sale of goods - charges towards various services provided to their customers for facilitating them to take smooth and hassle free delivery of the cars - HELD THAT:- The issue is no longer res-integra and it has been exactly held by Ahmedabad Bench of this Tribunal in the case of M/s Jivan Jyot Motors Pvt. Ltd. [2023 (7) TMI 1178 - CESTAT AHMEDABAD] that these services cannot be subjected to service tax.
There are no merits in the appeal filed by the Revenue - appeal dismissed.
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2024 (6) TMI 1325
Nature of activity - manufacture or service - Business Auxiliary Service or not - manufacture of marble slabs/tiles by converting the marble blocks into slabs by sawing them and then subjecting them to the process of edge cutting, crack filling and polishing - HELD THAT:- A perusal of the order passed by the Assistant Commissioner shows that reliance has been placed upon a report dated 09.01.2017 submitted by the Range Officer regarding verification of certain documents including, RG-I, job work details, ledger account from which the Range Officer concluded that there was no correlation between ER-3 returns and the documents submitted by the appellant. The order also mentions that the contention of the appellant that the amount received for job work was already included in the excisable turnover and duty had also been paid on the same was not justified.
The contention of the learned counsel for the appellant is that the said report could not have been relied upon without providing a copy of the said report to the appellant - This contention of the learned counsel for the appellant seems to be justified. If the said report was to be relied upon, it was incumbent upon the Assistant Commissioner to provide a copy of the report to the appellant.
The impugned order dated 29.05.2018 passed by the Commissioner (Appeals) is, accordingly, set aside and the matter is remitted to the Commissioner (Appeals) to decide the appeal afresh - appeal allowed by way of remand.
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2024 (6) TMI 1324
Violation of principles of natural justice - it is submitted by petitioner that without giving an opportunity to reply to the Show Cause Notice after providing the documents the impugned order has been passed - respondents agreed that the impounded documents were given to petitioner only on 6th December 2023 - HELD THAT:- The controversy whether the documents referred to in Paragraph No. 17 of the Show Cause Notice dated 25th September 2023 was given to petitioner along with Show Cause Notice, is not gone into - But the fact is, without copies of the impounded documents even if those documents referred to in the Show Cause Notice were given along with Show Cause Notice, petitioner may not be even able to effectively respond to the Show Cause Notice.
The impugned orders are hereby quashed and set aside - matter is remanded to Respondent No. 1 for denovo consideration - petition disposed off by way of remand.
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2024 (6) TMI 1323
Clearance of goods for export without payment of duty in contravention of the conditions laid down in N/N. 42/2001-CE(NT) dated 26.6.2001 - failure to furnish / renew LUT - non-submission of the LUT - HELD THAT:- The SCN has not questioned the actual export of the goods but only the non-submission of the LUT for the relevant period. Post the export, certain documents are stated to have not been furnished by the appellant for verification as per the Order in Original. It is found that the charge of non-submission of documents was not an allegation mentioned in the SCN and the Ld. Original Authority and the Ld. Commissioner Appeals cannot travel beyond the allegations made out in the SCN and improve their case.
Once the fact of the Export of the goods was not questioned, the confirming of demand along with interest and imposing an equal penalty under sec. 11AC of the Central Excise Act, 1944, for a procedural lapse was too harsh and not warranted.
The ends of justice will be served by setting aside the fine and penalties imposed by the impugned order - the impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1322
Clandestine Removal - paper boards - demand based on relying heavily on the statement of T Balakumar, Managing Partner - no other evidence placed on record by the Revenue to suggest the alleged clandestine removal - non-speaking order - violation of principles of natural justice - HELD THAT:- There appears to be a case made out by the appellant insofar as violation of principles of natural justice is concerned. To start with, it is contended that the statement of Balakumar is not considered in total, whereas the Revenue has picked up only the selective part, which is not justified. Other than this, there is no denial by the lower authorities that the Joint Commissioner did not afford reasonable opportunities since according to the appellants, it was the Additional Commissioner who has seized of the matter and hence, it was incumbent upon the Joint Commissioner to afford reasonable opportunities as prescribed under the statute. Thirdly, the adjournment appears to have been sought for on the ground of appointing a counsel to defend their case, has not been considered. Every person has a right to have a choice of his counsel to defend him before an authority.
There is no speaking order to this affect as to why the said request was not acceded to by the first appellate authority. It also appears that the appellant has relied upon various judicial presidents which should have been considered and then the adjudicating authority should have passed a speaking order.
The case remanded back to the file of the adjudicating authority, who shall pass a de-novo order after affording reasonable opportunities to the appellants - appeal allowed by way of remand.
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2024 (6) TMI 1321
Classification of Goods - Chewing Tobacco or Jarda Scented Tobacco - to be classified under CETH 2403 99 10 or under CETH 2403 99 30 - HELD THAT:- The issue in the present appeal is no more res integra and is covered by the decision in the case of M/S. FLAKES-N-FLAVOURZ VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2014 (9) TMI 664 - CESTAT NEW DELHI (LB)]. Against the Final order of the Tribunal upholding the product to be ‘Chewable Tobacco’ falling under Tariff Heading 2403 99 10 the appeal preferred by the Commissioner, Central Excise, Chandigarh before the Hon’ble Supreme Court has been dismissed in COMMR. OF CEN. EXC. AHMEDABAD VERSUS URMIN PRODUCTS P. LTD. AND OTHERS [2023 (10) TMI 1112 - SUPREME COURT] and the order of the Tribunal has been upheld.
Since the matter has been settled by the Hon’ble Supreme Court in favour of the Respondent, the present appeals filed by the Department are liable to be dismissed - the appeals filed by the Department are dismissed.
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2024 (6) TMI 1320
Valuation of goods - related person - Whether the price at which the finished goods cleared by the appellant to M/s. H.D. Consortium India Ltd. can be considered as the 'Transaction Value' for the purpose of payment of central excise duty? - time limitation.
Valuation of goods - HELD THAT:- As per the provisions of Section 4(1) of the Central Excise Act, 1944, it is observed that the price determined by the appellant is the sole consideration for sale of the finished goods and it is the ‘Transaction Value’ for determination of Central Excise Duty by the appellant. Accordingly, it is observed that there is no need to resort to Rule 9 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 to determine the assessable value in this case. Hence, the demand confirmed by interpreting Rules 8 and 9 of the Central Excise Valuation Rules, 2000, to confirm the demand of central excise duty in this case is not sustainable in law. Accordingly, the demand confirmed in the impugned order by rejecting the 'Transaction Value' declared by the appellant in the invoices raised to M/s. H.D. Consortium India Ltd., is not sustainable.
The appellant has been availing the benefit of Notification No. 20/2007-C.E. wherein they are eligible for refund of the whole of the duty of excise paid by them. Thus, there are merit in the contention of the appellant that there is no revenue loss to the exchequer on account of the clearance to M/s. H.D. Consortium India Ltd. at a lower price.
The Appellant has adopted a higher value addition and duty was paid at a higher side. Thus, there is no evidence available on record to substantiate the allegation that the appellant has undervalued the finished goods sold to M/s. H.D. Consortium India Ltd. Accordingly, the demand confirmed in the impugned order on the allegation of undervaluation of the final product is without any basis and liable to be set aside.
Time Limitation - HELD THAT:- The appellant is eligible to claim refund of the duty paid by them in PLA as per Notification No. 20/2007-C.E. dated 25.04.2007. The appellant has been filing returns regularly and disclosing all relevant information before the appropriate authority. The Range Superintendent has verified all the invoices and challans submitted by the appellant while sanctioning the refund claims. Thus, the suppression of fact with intent to evade payment of tax does not exist in this case. Accordingly, the demand raised by invoking the extended period of limitation is not sustainable.
The demand of duty confirmed in the impugned order is not sustainable - Since the demand itself is not sustainable, the question of raising any interest on the demands or imposition of penalty does not arise.
Appeal allowed.
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2024 (6) TMI 1319
Clandestine removal of goods - statements recorded during the course of investigation were not tested in terms of Section 9D of the Excise Act - requirement to prove with cogent evidence and not on the basis of preponderance of probabilities - HELD THAT:- The facts of the case in the case of M/S. SHIV SHAKTI SPONGE IRON LIMITED, M/S. BHARAT BHUSHAN SACHDEVA (FORMER DIRECTOR) (NOTICEE NO. 2) VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESHWAR BHUBANESHWAR-I COMMISSIONERATE [2020 (1) TMI 532 - CESTAT KOLKATA] is perused. In that case, no search was conducted in the premises of M/s Shiv Shakti Sponge Iron Ltd. the same has been recorded in the said order. Therefore, the facts of the case in hand are not similar to the case of M/s. Shiv Shakti Sponge Iron Ltd. Therefore, the said decision is not applicable to the facts of the case in hand.
The statements recorded during the course of investigation which were relied upon, are to be tested and examined in terms of Section 9D of the Excise Act, 1994 in which the Respondent failed to do so. In that circumstances it would be in the interest of justice to remand the matter back to the Adjudicating Authority first to test the statements relied upon in terms of Section 9 D of the Excise Act, 1944 and thereafter, to pass an appropriate order in accordance with law following judicial pronouncements.
Matter remanded back to the adjudicating authority for fresh adjudication - appeal disposed off by way of remand.
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2024 (6) TMI 1318
Eligibility for exemption in terms of N/N. 06/2006-C.E. dated 01.03.2006 - goods supplied to Mega Power Projects wherein the contract is awarded on the basis of international competitive bidding - HELD THAT:- The respondent has manufactured and supplied the goods by availing the benefit of exemption Notification No. 06/2006-C.E. dated 01.03.2006. The goods supplied by the respondent are covered under Sl. No. 400 of Notification No. 21/2002-Cus. dated 01.03.2002 which clearly exempts goods imported for Mega Power Projects. The only condition prescribed in the said Notification is that the respondent should submit a certificate from an Officer not below the rank of Joint Secretary to the Government of India in the Ministry of Power - the respondent has produced the certificate from the competent authority to the effect that the goods are required for the Mega Power Projects. Accordingly, the respondent fulfilled the condition stipulated in the said Notification.
The ld. adjudicating authority has examined this issue and rightly held that the respondent is eligible for exemption in terms of Notification No. 06/2006-C.E. dated 01.03.2006 - there are no infirmity in the impugned order dropping the proceedings.
The impugned order passed by the ld. adjudicating authority upheld - the appeal filed by the Department is dismissed.
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2024 (6) TMI 1317
Retrospective application of benefit of N/N. 50/2008-CE (NT) dated 31.12.2008 - supply of exempted goods both to SEZ units and SEZ Developers/ Promoters - respondent made an objection regarding availment of said exemption since the exemption at the relevant time was only applicable to goods cleared to units and not to SEZ Developers - HELD THAT:- The issue is squarely covered by the decision of the jurisdictional High Court in the matter of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT] and Division Bench decision of this Tribunal in the matter of SUJANA METAL PRODUCTS LTD. VERSUS COMMISSIONER OF C. EX., HYDERABAD [2011 (9) TMI 724 - CESTAT, BANGALORE].
Following the above, it is held that supplies made by the appellant to Developers of SEZ are eligible for exemption and demand of duty and recovery of Cenvat credit is unsustainable. Penalty is also unsustainable.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1316
Dishonour of cheque - Funds Insufficient - existence of legal liability or not - cheques were issued during the pendency of Insolvency Resolution Professional proceeding - vicarious liability of Director (Ex-Director) or not - liability without pointing out actual role and knowledge of issuing the cheque for the alleged liability to pay the amount of dishonoured cheque.
The first ground of objection of this application is that under Section 14 of the IBC Act there is order of the NCLT Chandigarh and therefore no criminal liability of the applicants arise - HELD THAT:- In view of the law laid down in P. Mohanraj and others Vs. M/s. Shah Brohters Ispat Pvt. Ltd. [2021 (3) TMI 94 - SUPREME COURT] Section 14 of the IBC applies to the corporate debtor and it is not applicable to the natural person. From the proceeding under Section 138 of the N.I. Act they are not exonerated from criminal liability. Thus, these applicants, who are natural persons cannot be benefited by the said order of NCLT. and Section 14 of the IBC. The argument of learned Senior Counsel Shri R.N. Dhorde for applicants is not acceptable in this regard.
The second ground for quashing complaint is absence of knowledge of issuing of cheque - HELD THAT:- It is admitted fact that applicants have not signed any of cheques in question. The statutory notices were not send to them after dishonour of cheques - It is necessary to plead the knowledge of all these applicants which is require as per first proviso of Section 141 of the N.I. Act. Their specific status and role is not specified in the complaint. Their liability to pay that amount under dishonoured cheque is not establishing from the averments in the complaint. It is not established from any document or conduct that disputed cheques were signed with their knowledge. Therefore, all the applicants cannot be held liable and deemed to be guilty as per Section 141 of the N.I. Act.
This is a fit case to exercise inherent power under Section 482 of the Criminal Procedure Code to stop the abuse of the process of the Court and to secure ends of justice. Therefore, the argument of Senior Counsel for the respondent Shri R.S. Deshmukh is not acceptable in this regard.
The application for quashing of the said complaint deserves to be allowed - Application allowed.
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2024 (6) TMI 1315
Seeking direction to allow him to make necessary correction in the Form GSTR-3B for the period 2018-19 by online or off-line, by opening the GST Portal for limited period or to allow the petitioner to make such correction through manual mode within a stipulated period - HELD THAT:- Having heard learned counsel for the parties, this Court disposes of the writ petition directing the opposite parties to take a decision on the reply submitted by the petitioner in form GST ASMT 11 by affording opportunity of hearing to the petitioner. In the event the authorities are satisfied with the contention raised by the petitioner, then the petitioner may be permitted to make necessary correction in accordance with law.
The writ petition stands disposed of.
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2024 (6) TMI 1314
Violation of principles of natural justice - Non-application of mind and failure to consider the material placed on record by the petitioner - lack of territorial jurisdiction - petitioner's principal place of business is at T. Nagar, Chennai, whereas jurisdiction has been unlawfully exercised by the State Tax Officer, Gudiyatham - difference between the GSTR 1 and GSTR 3B returns - Tax proposal relating to trade payables - Tax proposal relating to excess input tax credit being availed.
Difference between the GSTR 1 and GSTR 3B returns - HELD THAT:- There is no indication in tax proposal No.3 relating to the assessment period 2018-19 that the difference between the GSTR 1 and GSTR 3B returns for July 2017 was excluded therefrom. Therefore, it appears prima facie that the two tax proposals overlap. As regards the tax proposal relating to the rate of tax on road works, the petitioner has placed on record relevant notifications. These notifications indicate prima facie that the tax rate on road works is 12%, even if the service is not provided directly to the government. Therefore, the matter requires reconsideration on this aspect.
Tax proposal relating to trade payables - HELD THAT:- On examining the impugned order, it appears that such order was passed by assuming that 5% of the trade payables reflected in the financial statement were not paid within 180 days period. This conclusion is entirely speculative and, therefore, calls for interference.
Tax proposal relating to excess input tax credit being availed - HELD THAT:- In respect of supplies where the difference in ITC is more than Rs. 5 lakhs, the petitioner should have produced certificates from the chartered accountants of the suppliers concerned. This does not appear to have been done by the petitioner.
It is just and necessary that the matter be remanded for reconsideration. Since a substantial tax demand is involved, even after excluding amounts payable with regard to tax proposals that appear to be prima facie untenable, revenue interest is required to be protected. Towards such end, the petitioner is directed to remit a sum of Rs. 25 lakhs towards the disputed tax demand within 15 days from the date of receipt of a copy of this order. On instructions, learned counsel for the petitioner submits that the petitioner agrees to make such remittance.
The impugned order dated 10.11.2023 is set aside on condition that the petitioner remits a sum of Rs. 25 lakhs towards the disputed tax demand within 15 days from the date of receipt of a copy of this order - Petition disposed off.
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2024 (6) TMI 1313
Levy of penalty with regard to three consignments not being accompanied with e-way bill - Section 129 (1) of the MGST Act - mandate of Rule 138 A of the MGST Rules, 2017 not fulfilled - non-application of mind - violation of principles of natural justice - HELD THAT:- By the impugned order penalty is levied under Section 129 (1) (a) as well as under Section 129 (1) (b) of the MGST Act. Both these provisions are mutually exclusive - the impugned order is passed without application of mind.
These Petitions were heard on 21st June 2024 and while dictating the judgment in the Chamber, the Court came across an order dated 18th January 2022 wherein it is recorded that Petitioner has furnished a Bank Guarantee in all three Petitions for release of goods. Therefore, to ascertain the status of these Bank Guarantees, these Petitions were listed for direction on 26th June 2024. To a query raised by the Court about the status of the Bank Guarantees as recorded in the order dated 18th January 2022 given to the State GST Authority – Respondent Nos. 2 and 3, Mr. Patkar informed the Court that the Bank Guarantees had already expired and they did not renew the same, nor the State GST Authority informed Petitioner about renewal - It was the obligation of Petitioner to have continued to renew the Bank Guarantees till the disposal of these Petitions, since based on these Bank Guarantees, the goods were released.
Respondent No. 3 is directed to conduct enquiry, fix the responsibility and take the action against the officers / staffs who were responsible for allowing the Bank Guarantees to have lapsed. At the same time, Petitioner was also not justified in not renewing the Bank Guarantees, and therefore taking a firm view of such an inaction, this Court deems if fit to impose cost of Rs. 15 Lakhs on Petitioner to be paid to the PM Cares Fund, within a period of four weeks from the date of uploading of this order and file affidavit of compliance.
The Petitioner is not liable to pay GST on movement of machinery from JNPT to its factory since same would not fall within the charging section - impugned order being Exhibit-A dated 15th December and corrigendum dated 22nd December 2020 is modified by holding that the Petitioner is liable for penalty of Rs. 25,000/- only under Section 129 (1) of the Act - Petitioner is directed to deposit Rs. 75,000/- with the State GST authority within a period of four weeks from the date of uploading of the present order. The Bank Guarantee furnished as recorded in order dated 18th January 2022 would be returned by Respondents to Petitioner only on payment of Rs. 75,000/- as directed herein - Petitioner is directed to donate Rs. 15 Lakhs to PM Cares Fund within a period of four weeks from the date of uploading of present order and file affidavit of compliance.
The writ petition is disposed off.
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2024 (6) TMI 1312
Violation of principles of natural justice - order assailed on the ground that the order is unreasoned and disregards the petitioner's replies - HELD THAT:- The petitioner has placed on record three replies to the show cause notice. In these replies, the petitioner has explained the reasons for mismatch by stating that Government Departments reflect transactions in GSTR 7 while deducting TDS and making payments. On examining the impugned order, it merely records that the reply is not accepted. Since the impugned order is completely unreasoned, it cannot be sustained.
The impugned order dated 30.04.2024 is set aside and the matter is remanded to the respondent for reconsideration - Petition disposed off by way of remand.
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2024 (6) TMI 1311
Maintainability of writ petition - availability of alternate remedy - writ petition not entertained mainly on the ground that against the order of assessment, the assessee/dealer has an appeal remedy under Section 107 of the TNGST Act, 2017 r/w Rule 108 of TNGST Rules, 2017 - want of jurisdiction.
Alternative remedy - HELD THAT:- Normally, when there has been a statutory appeal remedy provided, especially under the Tax Legislation, Writ Petition under Article 226 of the Constitution of India would not be entertained by this Court. But there are some exceptions for such procedure.
Want of jurisdiction - HELD THAT:- If any order of assessment is assailed, that normally would be entertained by the writ Courts. Herein the case on hand, the main contention of the learned counsel for the writ petitioner/appellant is that for want of jurisdiction, since it has been assigned to the State Authorities, the Central GST Authorities has to lay off their hands and this position has been clearly reiterated by the learned Judge in the said Judgment in Tvl. Vardhan Infrastructure's case [2024 (3) TMI 1216 - MADRAS HIGH COURT].
The cross jurisdiction issue is a major factor, wherein the assessment order, if it is challenged on the ground of cross jurisdiction, certainly on that ground, the order of assessment can be interfered with. However, these factual issues since have not been brought to the notice of the learned Judge, when the writ petition was taken up for hearing, the learned Judge had no occasion to consider this aspect, except to go into the ground of appellate remedy, on which ground the learned Judge since has considered the matter, he was pleased to dismiss the same.
The appellant/writ petitioner is at liberty to file a review application before the learned Single Judge, against the order impugned in this writ appeal dated 04.04.2024, wherein the judgment in Tvl. Vardhan Infrastructure's case and any other judgment with regard to the point of jurisdiction can be brought to the notice of the learned Single Judge, based on which arguments can be advanced for consideration of the writ Court
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2024 (6) TMI 1310
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - HELD THAT:- On examining the impugned order, it is evident that such order relates to two e-way bills, which were not reported in the GSTR 1 statements. It is also clear that the tax proposal was confirmed because the petitioner did not reply to the show cause notice. In view of the assertion that the petitioner could not participate on account of not being aware of proceedings, the interest of justice warrants that an opportunity be provided to the petitioner, albeit by putting the petitioner on terms.
The impugned orders dated 04.09.2023 and 12.04.2024 are set aside and the matter is remanded to the second respondent for re-consideration subject to the petitioner remitting an additional 5% of the disputed tax demand within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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2024 (6) TMI 1309
Violation of principles of natural justice - petitioner was not provided a personal hearing - HELD THAT:- Under sub-section (4) of Section 75 of applicable GST enactments, a personal hearing is mandatory not only when requested for but when an order adverse to the tax payer is proposed to be issued. In all these cases, the tax proposals were confirmed without the petitioner being provided a personal hearing. On account of the infraction of a mandatory prescription, orders impugned herein cannot be sustained.
The impugned orders in original dated 19.09.2023 are set aside and these matters are remanded for reconsideration. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue fresh orders within three months from the date of receipt of a copy of this order.
Petition disposed off by way of remand.
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2024 (6) TMI 1308
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - cancellation of GST registration - HELD THAT:- The petitioner has placed on record evidence that his GST registration was cancelled on 21.10.2020 with effect from 31.12.2017. In those circumstances, the submission that the petitioner was not monitoring the portal is not entirely devoid of merits. At the same time, it is noticeable that the petitioner was put on notice about the discrepancies in returns by issuing notice in Form ASMT 10. In these circumstances, it is just and necessary to provide an opportunity to the petitioner to contest the tax demand on merits, albeit by putting the petitioner on terms.
The impugned order dated 31.12.2023 is set aside and the matter is remanded for reconsideration on condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of three weeks from the date of receipt of a copy of this order - petition disposed off by way of remand.
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2024 (6) TMI 1307
Violation of principles of natural justice - non-receipt of either the SCN or the impugned order until the recovery notice was received - notice for personal hearing was returned by the postal authority with the remark “no such person in the address” - HELD THAT:- The impugned order records expressly that the personal hearing notice was returned with the endorsement “no such person in the address”. The petitioner has placed on record the sale deed for purchase of a house on 07.11.2023. Upon such purchase, the petitioner asserts that he shifted to such address. In these facts and circumstances, it is just and necessary that an opportunity be provided to the petitioner to contest the tax demand on merits, albeit by putting the petitioner on terms.
The impugned order dated 26.10.2022 is set aside subject to the condition that the petitioner remits a sum of Rs. 50,000/- towards the tax demand within a maximum period of three weeks from the date of receipt of a copy of this order - Petition disposed off.
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