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Showing 281 to 300 of 1466 Records
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2024 (6) TMI 1186
Maintainability of appeal - monetary limit involved in the appeal as per CBIC circular dated 02.11.2023 - Re-assessment of goods at enhanced value set aside - restoration of self-assessment at the declared value - evidence to prove that any additional consideration was paid to the exporters or not - onus on the department to establish that the declared value - HELD THAT:- It is pertinent to mention here that the amount of duty involved in each of the appeal is below of the threshold limit prescribed in circular dated 02.11.2023 issued by the CBIC wherein it is provided that if the duty amount involved is less than Rs.50 lakhs, then no appeal shall be filed before the CESTAT, and if already filed, the same will be withdrawn by the department.
Reference made to the decision of the Bombay High Court in the case of COMMISSIONER OF CUSTOMS, CENTRAL EXCISE, & SERVICE TAX, NASHIK II COMMISSIONERATE, VERSUS M/S. SUVARNA SANJIVANI SUGARCANE [2017 (6) TMI 858 - BOMBAY HIGH COURT], wherein the Hon’ble High Court has observed 'There is no issue that the appeals filed by the department in the year 2012 having monitory limits of below 15/20 lakhs. The above provisions and instructions/circulars therefore covers the case of disposal of these appeals on the same ground. The learned Counsel appearing for the respondents has no objection for such disposal.'
The present appeals filed by the department are not maintainable in view of the instructions dated 02.11.2023 issued by the Board - All 7appeals dismissed.
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2024 (6) TMI 1185
Violation of principles of natural justice - SCN issued without conducting investigation - Entitlement to concessional rate of service tax under the Composition Scheme - non-inclusion of free materials supplied by service recipients in taxable value - non-filing of service tax returns for the periods 2007-08 and 2008-09 - extended period of limitation - penalty.
Non-inclusion of free materials supplied by service recipients in taxable value - SCN issued without conducting investigation - HELD THAT:- This issue has now been settled by the Hon’ble Apex Court in the case of CST vs. Bhayana Builders (P) Ltd [2018 (2) TMI 1325 - SUPREME COURT] wherein the Hon’ble Apex Court while referring the valuation provision under the Finance Act, 1994, and also referring the provisions of “such service”, has held 'though it took care of the value of goods and materials supplied by the service provider/assessee by including value of such goods and materials for the purpose of arriving at gross amount charged, it did not deal with any eventuality whereby value of goods and material supplied or provided by the service recipient were also to be included in arriving at "gross amount charged.'
Further, it is noted that in this case, the entire demand has been raised and confirmed merely by relying upon Form 26AS, Balance Sheet and ST-3 Returns, which is not permitted under law in view of the various decisions relied upon by the appellant - reference made to the decision in the case of Kush Constructions [2019 (5) TMI 1248 - CESTAT ALLAHABAD], wherein the Division Bench of the Tribunal has held 'Revenue cannot raise the demand on the basis of such difference without examining the reasons for said difference and without establishing that the entire amount received by the appellant as reflected in said returns in the Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services.'
All the documents furnished by the appellant in this regard have not been considered by the Adjudicating Authority, hence, the impugned finding in this regard is not sustainable in law.
Extended period of limitation - HELD THAT:- In the facts and circumstances of the present case, extended period cannot be invoked as the appellant has been registered with the service tax and has been paying service tax and filing returns which has been acknowledged by the Adjudicating Authority in the impugned order.
Further, in the case of Infinity Infotech Parks Ltd vs. UOI & Ors [2014 (12) TMI 36 - CALCUTTA HIGH COURT], it has been held that when the extended period of limitation is not invokable, the demand cannot be confirmed for the normal period of limitation for some of the same transactions. Though, there is the amendment in Section 73 made by the Finance Act, 2013 w.e.f. 10.05.2013 by inserting sub-section (2A); but period of dispute in the present case is prior to that. Therefore, this amendment will not be applicable in the present case.
Penalty - HELD THAT:- When the extended period is not invokable, the penalty under Section 78 of the Act is also not leviable since ingredients for invoking extended period and levying penalty under Section 78 are same.
The impugned order is not sustainable in law and therefore set aside - appeal allowed.
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2024 (6) TMI 1184
Levy of service tax - Business Auxiliary services - transportation of their raw materials/finished products in and out of their factory premises - reverse charge mechanism - Rule 2(1)(d)(B) r/w N/N. 30/2012 – ST dated 20.06.2012 - HELD THAT:- In this case, it is the appellant who has hired the vehicles from vehicle owners and at the most, it could be a service provided by such vehicle owners to the Appellant for which there should have been flow of consideration by the appellant to them. That apart, there are no agreement or contract in this regard between the appellant and such vehicle owners for providing any service - Undeniably, it was the responsibility of the appellant to provide GTA service to CCCL by virtue of the existing contract between them.
It is a fact borne on record that in respect hired vehicles, CCCL were not paying the freight directly to the other transporters because, they were under no obligation to pay them. Hence, the assumption that the amount retained by the appellant was towards the promotion of transport business of the other transporters is without any basis. This is also because, the ‘goods transport service’ is provided to CCCL by these transporters but the payment for the same is by the appellant. Hence, to allege ‘transport business’ the Revenue should have enough evidence to indicate that such ‘transporters’ were in the transport business, they had an understanding with the appellant seeking promotion and that the same was for a consideration.
There is no agreement/contract and there is also no flow of consideration from the transporters / vehicle owners to the appellant for having rendered service of BAS and hence, the allegation of provision of BAS lacks merit.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1183
Refund of input service credit under Rule 5 of CENVAT Credit Rules, 2004 - export of services or not - services provided by the appellant herein to the foreign entity - periods from April 2010 to June 2010 and January 2010 to March 2010 - HELD THAT:- The Appellant is not to market the product of the foreign supplier to Indian entity but rather to identify ‘suppliers’ within India; ‘supplier’ has been defined in the same agreement to be ‘companies entrusted by the Agent for the manufacture of Merchandise’. It is hence clear that the lower authorities have seriously erred in misunderstanding the facts and thereby deny the CENVAT credit availed by the appellant as inadmissible.
This Bench had an occasion to consider an almost similar issue recently, in the case of MANALI PETROCHEMICALS LTD. PLANT – I VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2024 (6) TMI 848 - CESTAT CHENNAI] where it was held that 'It is clear from the above that the role of the appellant is to render service to the Japan based service receiver, in delivering the product manufactured outside India, to the ultimate consumer in India namely Whirlpool Ltd.'
It is apt to refer to the CBEC Circular No. 111/05/2009–ST dated 24.02.2009, wherein the board has clarified the phrase used outside India to mean that the benefit of the service should occur outside India, where it was held that 'what is accruing outside India is the benefit in terms of promotion of business of a foreign company. Similar would be the treatment for other Category III [Rule 3(1)(iii)] services as well.'
The action of the authorities in denying the CENVAT credit is unsustainable and is set aside - appeal allowed.
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2024 (6) TMI 1182
Levy of service tax - Renting of Immovable Property Services - providing services / facilities while discharging sovereign functions - HELD THAT:- The Tribunal in the appellant’s own case had occasion to consider the similar issue. After taking note of the judgement passed by the Hon’ble High Court in the case of Cuddalore Municipality Vs. Joint Commissioner of GST and Central Excise, Tiruchirappalli [2021 (4) TMI 500 - MADRAS HIGH COURT] and St. Thomas Mount Cum Pallavaram Cantonment Board Vs. Additional Commissioner of GST and Central Excise, Chennai [2023 (4) TMI 1024 - MADRAS HIGH COURT] wherein the Tribunal remanded the matter to the adjudicating authority to reconsider the issue afresh. After giving the appellant an opportunity to put forward evidence and also for personal hearing.
The matter requires to be remanded to the adjudicating authority who is directed to consider the issue afresh after giving an opportunity to the appellant to furnish evidence and for personal hearing - appeals are allowed by way of remand.
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2024 (6) TMI 1181
Classification of services - Construction of Residential Complex Service or not - providing construction services under different projects under works contract - construction under each of the projects were of the nature of indivisible composite contracts involving both supply of materials as well as construction activity - HELD THAT:- From the perusal of the clauses extracted in the original order, clear that it was for the developer to hire services of architects, engineers, contractors, et cetera, for the purposes of construction, so as to develop the property into one or more residential / multistoried buildings. It is further clear that in terms of the construction agreement, it was for the developer to construct the complex using its own men & material. In respect of Wanlock Woods project, the appellant is fastened with a liability on the ground of not recognising the said construction as under CRCS, but as individual units.
This very issue has been considered by the coordinate Bench, in the case of COMMISSIONER VERSUS MACRO MARVEL PROJECTS LTD. [2009 (7) TMI 1222 - SC ORDER] as contended by the learned Advocate, which has also been affirmed by the Hon'ble Supreme Court. In view of the above position of law, the demand under CRCS as proposed is not sustainable and accordingly, this ground of the appeal succeeds.
There is no dispute that there was supply of materials as well as the service of construction and hence, the same could only be taxed under WCS. However, the proposal in the show cause notice is clearly under CRCS and hence, confirmation of the demand under WCS is not in accordance with the decision of the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. It is held in this case that there could be no levy of service tax under works contract service prior to 01.06.2007.
In so far as the period post 01.06.2007, the proposal in the Show Cause Notice is to levy service tax under CRCS and not WCS, which demand is also incorrect in the light of the decision of Larsen & Toubro.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1180
Entitlement to reduced penalty @ 25% under the second proviso to Section 78(1) of the Finance Act 1994 - appellant had not obtained service tax registration nor paid the applicable service tax - Alternative request for grant of benefit of the first proviso i.e. 50%.
Whether the penalty of 25% can be extended in respect of total demand finally confirmed in terms of Commissioner (Appeals) or otherwise? - HELD THAT:- The provisions are quite clear. As per the second proviso to Section 78(1) there is a provision that where the service tax and interest is paid within a period of 30 days of the date of receipt of the Order of the Central Excise Officer determining the amount of service tax under sub-section (2) of Section 73, the penalty would be @ 25%. In this case, obviously, the appellants have not paid the determined amount and the interest thereon within the 30 days of the receipt of the Order-in-Original dated 31.05.2022 - there are no infirmity in the Order of the Commissioner (Appeals) in holding that 25% penalty is not applicable in the facts of the case.
Alternative request for grant of benefit of the first proviso i.e. 50% - HELD THAT:- The first proviso is an exception to Section 78(1) where there is provision for imposing mandatory penalty of 100%. Therefore, if the appellants are fulfilling the conditions indicated in the said proviso then instead of 100% they will be liable to pay penalty equal to 50% of the determined service tax - para 9 of impugned order, the Commissioner (Appeals) has made a detailed observation of various records, which were maintained by the appellant during the material time and the veracity of the documents has not been doubted by the Commissioner (Appeals) nor the Revenue has come in appeal against the observations of the Commissioner (Appeals). Therefore, it is but obvious that they were maintaining certain records and details of such transactions in respect of which the demand has been made in the show cause notice. Therefore, to that extent they are eligible for the benefit of first proviso for the period starting from 08.04.2011 upto 14.05.2015 and therefore the amount of service tax finally determined/confirmed in terms of Commissioner (Appeals) order will be liable to penalty @ 50% during this period and for the period beyond that they will be liable to penalty at the rate of 100%.
The appellants can work out the total liability of penalty as observed above and submit the same to the jurisdictional authority along with the proof that they have discharged the determined service tax along with the penalty applicable thereon - appeal disposed off.
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2024 (6) TMI 1179
Recovery of Modvat/Cenvat Credit availed along with interest and penalty - receiving certain raw materials based on purchase invoices, without actually physically receiving any material and availed Cenvat credit - HELD THAT:- The petitioners have paid the amount of Rs. 12,90,000/- during the course of search. The said amount was adjusted towards the outstanding demand by the adjudicating authority while passing the Order-in-Original dated 26.8.2004.
Petition dismissed.
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2024 (6) TMI 1178
Process amounting to manufacture or not - appellants had been receiving inputs like aluminum ingots from M/s Auto Ignition Ltd., Rudrapur, Uttrakhand and job-work challans for making aluminum dye-cast components - area-based exemption contained under N/N. 32/99 availed - HELD THAT:- Tribunal has dealt with a case involving identical facts in the case of ALUMECO INDIA EXTRUSION LTD. VERSUS COMMR. OF C. EX., HYDERABAD-I [2009 (5) TMI 402 - CESTAT, BANGALORE] observed that 'It is his finding that the definition of “manufacture” includes everything, which undergoes a change. We find that the learned Adjudicating Authority has misdirected himself on this ground.'
The process undertaken by the appellants on the ingots supplied by the principal job-worker does not amount to manufacture; the facility available to the principal manufacturer or the job-worker cannot be denied for procedural infractions, more so, when the Department was put to notice by way of seeking permission; it is not the fault of the principal manufacturer or the job-worker if there was delay in giving or denying the permission.
It is opined that if the process undertaken by the job-worker/ appellant amounted to manufacture, duty requires to be demanded from the principal manufacturer and in no case, duty can be demanded from the job-worker.
Appeal allowed.
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2024 (6) TMI 1177
Classification of goods - aerated drinks and fruit pulp or fruit juice based drinks under different brand names - to be classified under Tariff Heading 2202 9020 or under Chapter Sub-heading 22021020 - period April 2011 to August 2012 - HELD THAT:- The issue of classification of the impugned product is no more res integra as the same issue has been settled in favour of the Appellant in Appellant’s own case M/S. HINDUSTAN COCA-COLA BEVERAGES P LTD VERSUS COMMISSIONER OF CGST, BHIWANDI [2022 (11) TMI 595 - CESTAT MUMBAI]. The order relied on the decision by a Larger Bench of this Tribunal in M/S BRINDAVAN BEVERAGES PRIVATE LIMITED, KRANTI KUMAR CHANDRAKAR, M/S PEPSICO INDIA HOLDINGS PRIVATE LIMITED VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HAPUR AND BAREILLY [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] which held that the product “Minute Maid Nimbu Fresh” is classifiable under Tariff Item 2202 90 20 of the Central Excise Tariff Schedule under the category of “fruit pulp or fruit juice based drinks”. The Larger Bench did not agree with the decision in the matter of HINDUSTAN COCA COLA BEVERAGES PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2014 (9) TMI 659 - CESTAT MUMBAI], on which reliance has been placed in the impugned order by the Commissioner (Appeals). The Larger Bench held 'The product “Minute Maid Nimbu Fresh (hereinafter referred to as MMNF) manufactured by Brindavan Beverages Private Limited, and 7UP “Nimbooz Masala Soda” or 7UP “Nimbooz” manufactured by PepsiCo India Holdings Private Limited are classifiable under Tariff Item 2202 90 20 of the Central Excise Tariff Schedule under the category of “fruit pulp or fruit juice based drink'.
The appeal filed by the Appellant is allowed.
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2024 (6) TMI 1176
CENVAT Credit on inputs - Process amounting to ‘manufacture’ or not - embossing the logo of M/s. Hyundai on caseskin which was obtained by cutting the coil - HELD THAT:- When the final product is stated as dutiable and duty is accordingly paid and collected by the revenue by treating the activity as manufacturing activity, the CENVAT credit is always available and hence, there is no question of denial or reversal of the same in the case on hand. Moreover, it is not disputed by the revenue that the appellant had paid duty, but they only are denying the CENVAT credit, which is not permissible in view of the ratio laid down by the High courts in THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT].
The denial as made in the impounded order is contrary to the settled position of law, which therefore requires to be set aside - Appeal allowed.
Levy of penalty under Rule 15A of the CENVAT Credit Rules, 2004 - HELD THAT:- The penalty is fastened based only on statement, without there being any independent evidence in support - the impugned order set aside.
Appeal allowed.
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2024 (6) TMI 1175
Valuation - inclusion of cost of tools from the buyer-customers by raising excise invoices, in the assessable value - benefit of N/N. 67/95–CE dated 16.03.1995 - Double Taxation or not - extended period of limitation - suppression of facts or not.
Inclusion of cost of tools from the buyer-customers by raising excise invoices, in the assessable value - HELD THAT:- The issue as to whether the cost of tools supplied by the buyer free of charge back to the appellant, should be included as an amortised cost, when the said tools are used in the appellants factory for manufacture of components for the said buyers, in terms of Rule 6 of CVR 2000 or not, has been examined by this Tribunal in M/s Best Cast IT Ltd [2023 (6) TMI 99 - CESTAT CHENNAI] after considering the judgements of COMMISSIONER OF CENTRAL EXCISE, MUMBAI-I VERSUS M/S MEGA RUBBER TECHNOLOGIES PVT. LTD. [2016 (1) TMI 157 - CESTAT MUMBAI] and the Larger Bench decision in Mutual Industries Ltd Vs Commissioner of Central Excise, Mumbai [2000 (3) TMI 74 - CEGAT, COURT NO. I, NEW DELHI], where it was held that 'had the mould not been supplied by the customer, appellant could not have agreed to the price of the finished goods at the price as is evidenced by the contract entered into between them. So, the price of the finished goods fixed in the contract between the parties can safely be taken as not the sole consideration for the sale of the finished product.'
The fact whether the tools were manufactured in the appellants factory or was outsourced by the appellant from another company would not change the legal position as per CVR 2000 so long as they were paid for by the buyer-customer - The tools manufactured and used for production of components at the cost of the buyer and against purchase orders, needs to be included in the cost of production and amortized for payment of duty on the final products manufactured by the appellant using such tools.
Double taxation - HELD THAT:- Double taxation with reference to central excise duties on goods means levying central excise taxes twice on the very same excisable product, which is not the case here - Had they purchased the tools from the market its price would have automatically entered the price of the final product sold by them. Hence the question of double taxation does not arise.
Benefit of N/N. 67/95 – CE dated 16.03.1995 - HELD THAT:- A Co-ordinate Bench of this Tribunal in Ashok Iron Works [2004 (2) TMI 482 - CESTAT, BANGALORE] has held at para 6 that the benefit of Notification No.67/95 – CE was available to jigs, fixtures, patterns and tooling irrespective of the ownership of these goods - The excise duty element would hence not form a part of the amortised value of the tools and it needs to be re-worked out suitably. However, it is noted that the eligibility for exemption from payment of duty for the tools does not detract from amortising the cost of the tool charged to the buyer, less the duty element.
Extended period of limitation - HELD THAT:- The requirement of law is that mere failure or negligence in adopting the correct value and making the correct payment of duty cannot be considered as suppression of fact with intention to evade payment of duty, especially when the issue was complex. Something more is required to show that there was a positive intention to evade payment of duty - there are no grounds to invoke the extended period and the demand for the larger period must fail.
The matter remanded back to the Original Authority for re-quantification of the duty demand for the normal period - appeal allowed by way of remand.
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2024 (6) TMI 1174
Rejection of refund claim - unjust enrichment - rejection by holding that in respect of depot sales, the price indicated in the invoices were the transaction value and hit by the bar of unjust enrichment - HELD THAT:- The first appellate authority has observed that for the year 2008–09, as against claim of ₹14,38,174/- the original authority had sanctioned ₹86,129/- and for the other year a refund of ₹6,96,147/- was allowed and the rejection of the balance claim was pertaining to the excess duty paid in the respect of depot sales. It is the case of the Revenue that though Rule 7 of CER, 2002 enabled a taxpayer to claim refund of any amount paid in excess during provisional assessment, but however, the same is not absolute but subject to the principles of unjust enrichment.
The impugned order is set aside - appeal allowed.
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2024 (6) TMI 1173
100% EOU - demand of Education cess and Secondary and Higher Education Cess on the countervailing duty and basic customs duty without paying the same on the excise duty - period involved in the present dispute is from November 2011 to May 2012 - HELD THAT:- Having considered the decision of larger bench of the Tribunal in the case of KUMAR ARCH TECH PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II [2013 (4) TMI 482 - CESTAT NEW DELHI - LB] has held that the demand confirmed in the against the taxpayer therein was not called for and accordingly set aside the demand therein.
The impugned order set aside - appeal allowed.
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2024 (6) TMI 1172
Levy of purchase tax under Section 12 of the Tamil Nadu Value Added Tax Act, 2006 - validity of assessment order - HELD THAT:- A reading of the order dated 09.11.2022, rejecting the request of the petitioner for revision of the assessment made on 28.09.2022 reveals that the order has been passed in undue haste. The dispute pertains to the Assessment Years 2014-2015 and 2015-2016 and the amount involved are huge. For the Assessment Year 2014-2015, the tax amount is Rs. 91,46,490/- and the amount of tax involved for the Assessment Year 2015-2016 is Rs. 68,98,819/-.
The orders dated 09.11.2022, rejecting the Petition filed by the petitioner for revision of the orders dated 28.09.2022, is set aside, subject to the petitioner depositing 10% of the disputed tax before the second respondent in cash by way of D.D. within a period of 30 days from the date of receipt of copy of this order. The petitioner shall appear for personal hearing before the second respondent before fresh orders are passed.
Petition dispsoed off.
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2024 (6) TMI 1171
Violation of principles of natural justice - order passed without considering the Profit and Loss Account, Balance Sheets and the Ledger produced before him - HELD THAT:- There is no merit in the challenge to the impugned order in this Writ Petition, as the respondents cannot be found fault with for passing the impugned order. After the earlier order dated 30.05.2019, which was set aside by this Court vide order dated 08.04.2021, it was incumbent on the part of the petitioner to have got ready with the reply. Instead, the petitioner waited till the issuance of pre-revision notice dated 31.08.2021 and has merely submitted only copies of Ledger and Profit and Loss Account.
The petitioner should have filed a clear reply as to how there was no case made out by the respondents. That apart, in the counter affidavit, the second respondent has also stated that the petitioner has suppressed the turnover and that there is a tax liability, which has been confirmed vide the impugned order.
Petition dismissed.
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2024 (6) TMI 1170
Refund of amount paid under coercion - no order for demand is passed - HELD THAT:- On perusal of the facts, it is apparent that the respondents have not passed any order disposing of the refund applications dated 04.06.2021 and 24.09.2021.
Considering the affidavit in reply, it appears that there are disputed questions of facts with regard to service of notice and passing of the assessment order for the period for which refund is claimed by the petitioners. The affidavit in rejoinder filed by the petitioners also raises such disputes with regard to the contents of the affidavit in reply.
The petition is not entertained at this stage. The respondents are directed to pass appropriate order disposing of the aforesaid refund applications filed by the petitioners within a period of 12 weeks from the date of receipt of a copy of this order.
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2024 (6) TMI 1169
Levy of penalty - Rejection of benefit of Amnesty Scheme under the Vera Samadhan Yojna, 2019 - seeking directions to grant waiver of the penalty under the Amnesty Scheme on the basis of payment of tax and interest prior to passing of the assessment order - attachment of bank accounts - HELD THAT:- The benefit of the Amnesty Scheme is available for waiver of interest and penalty. However, the Scheme also provides that no refund would be issued qua interest or penalty which is already deposited by the applicant. Therefore, the petitioner is not entitled to the refund of interest but so far as the penalty is concerned, the petitioner was entitled for the waiver thereof. The respondent authorities however invoking the Clause 4.5 by misinterpreting the object of the Scheme to give waiver of interest and if the amount of tax is deposited by the assessee.
The petitioner under the bona fide belief that the petitioner already deposited the entire tax and interest and the order under challenge before the appellate authority was the assessment order comprising of tax interest and penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner is not liable to deposit any penalty. The petitioner therefore did not deposit amount of penalty as intimated by the respondent-authority. The petitioner however, intimated the respondent-authority that as the petitioner has already paid tax and interest before assessment order was passed, the petitioner is not liable to deposit any amount of the penalty as required by the intimation letter. However, the respondent-authority rejected the application of the petitioner for the benefit of the Amnesty Scheme as the petitioner did not deposit the amount as required by the intimation letter.
Keeping in view the observation made by this Court in case of SAFAL DEVELOPERS AND ANOTHER VERSUS STATE OF GUJARAT AND ANOTHER [2016 (4) TMI 1310 - GUJARAT HIGH COURT]and considering the facts of the present case, we are of the opinion that respondents have committed error while rejecting the application under Amnesty Scheme as the petitioner has already paid amount of tax and interest prior to passing of the order of assessment and prior to the announcement of the Scheme - The petitioner is therefore entitled to the waiver of the penalty as per the provisions of the Scheme accordingly. As the petitioner is not entitled to the Amnesty Scheme alternative prayer with regard to restoration of the second appeal before the Tribunal would not survive.
Impugned Communication dated 11.03.2022 at Annexure-A as well as attachment order passed by the respondent-authorities are hereby quashed and set aside - petition allowed.
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2024 (6) TMI 1168
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - rejection of petitioner's claim for ITC on the ground that the purchase falls within the scope of sub-section (5) of Section 17 of applicable GST enactments - HELD THAT:- On perusal of the impugned order, it is evident that the tax proposal was in relation to wrongful availment of ITC in respect of the purchase of a motor vehicle on 31.08.2018. In the affidavit, the petitioner asserts that such purchase was in furtherance of business. In these circumstances, it is just and necessary to provide an opportunity to the petitioner to contest the tax demand on merits by putting the petitioner on terms.
The impugned order dated 12.09.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand within two weeks from the date of receipt of a copy of this order. Within the said period, the petitioner is permitted to submit a reply to the show cause notice - petition disposed off.
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2024 (6) TMI 1167
Refund of IGST paid - rejection order passed without giving any reasons and also without application of mind - violation of principles of natural justice - Rejection of the ground of time limitation - no sufficient cause for delay provided.
Refund of IGST paid - rejection order passed without giving any reasons and also without application of mind - violation of principles of natural justice - HELD THAT:- The impugned order does not disclose why the refund application has been rejected. Further, the impugned order dated 21st September 2019 appears to be from a template used and though the amount of refund being allowed is Nil, the officer has not bothered to even delete the paragraph that the amount is to be paid to the bank account specified by applicant in his application. The officer, however, has deleted the other portions. Therefore, there has been even non application of mind by respondent no. 2 and on these grounds alone, the impugned order should be set aside.
Rejection of the ground of time limitation - no sufficient cause for delay provided - HELD THAT:- Respondent no. 3 could not be blamed because he did not have the power to condone this delay Judicial conscience does not permit to reject this cause shown as bogus particularly in view of the fact that petitioner was an individual and the GST regime was at a nascent stage. Moreover, in both the orders impugned in the petitions there is no whisper about the merits of the application.
The matter is remanded to respondent no. 2 for denovo consideration. Petitioner shall submit the deficient documents, which it says it attempted to submit on 18th September 2019 and again on 25th September 2019, within one week of this order being uploaded. Respondent no. 2 shall pass orders on the refund application in accordance with law but before passing any order, shall give a personal hearing to petitioner, notice whereof shall be communicated atleast five working days in advance.
Petition disposed off.
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9911796707
