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Showing 441 to 460 of 1740 Records
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2024 (9) TMI 1302
Sanction of rebate (by way of refund) of CENVAT credit of Service Tax paid on input services - N/N. 41 of 2012 –ST dated 29.06.2012 - HELD THAT:- The reading of Section 142 (4) of the CGST Act is clearly reflective of the fact that refund of the tax paid on input or input services under the existing law pertaining to export of goods and services prior to appointed day would be covered by the provision of existing law.
It is also noted that the concerned question of law is no more resintegra and is squarely covered and had come to be considered in Vinod Kumar Diamond India Pvt Ltd [2023 (5) TMI 762 - CESTAT MUMBAI]. Further, in the case of Fine Automotive and Industrial Radiators Pvt Ltd. vs. Commissioner of GST and Central Excise [2019 (11) TMI 1408 - CESTAT CHENNAI], permitted the refund of service tax in similar circumstances.
The appellant is entitled to the refund of the service tax paid in the present case. The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1301
Clandestine removal - Penalty u/r 26 of the Central Excise Rules, 2002 - Appellant was the in-charge Managing Director - error in law in upholding the Order in Original and confirming the penalty under Rule 26 of the Central Excise Rules, 2002, without specifying which particular clause of Rule 26 - penalty under Rule 26 can be imposed without there being any proposal and order for the confiscation of the goods in question or not - reliance placed upon the statement partly - mens rea.
HELD THAT:- On bare perusal of the Rule 26, it is clear that any person who is in any way concerned in removing the excisable goods which he knows or has reason to believe are liable to confiscation under the Act or the Rules shall be liable to a penalty. Admittedly, in the facts of the case, the appellants were concerned with the removal of the goods by the Company and from the statement of Mr. Narendrabhai Solanki which was recorded during the course of investigation, there is a clear admission on his part.
It cannot be said that the Adjudicating Authority or Tribunal has committed any error in invoking Rule 26 of the Rules for levy of the penalty. The contention raised on behalf of the appellants that the adjudicating authority has failed to point out which of the Sub-rule is applicable in the facts of the case is without any basis inasmuch as on perusal of Rule 26 of the Rules, it is clear that the Sub-rule (2) would never be applicable to the facts of the case as it pertains to the person who issues invoices or any other documents.
The reliance placed on the decision of the Hon’ble Apex Court in case of the Amrit Foods [2005 (10) TMI 96 - SUPREME COURT] would not be applicable in the facts of the case as the appellants were put to notice as to the exact nature of contravention for which the appellants were made liable for penalty under Rule 26 of the Rules. As the show-cause notice and the Order-in-Original have explained in detail about the nature of the offence for which the penalty is levied, it cannot be said that there is a breach of any of the requirement for levy of penalty by the respondent-authority. With regard to the contention raised on behalf of the two appellants namely, Devendra Ambalal Thakkar and Jaykant Ambalal Patel, it is required to be noted that both of them have abstained from investigation and have not co-operated for recording their statements and in spite of that the respondent-authority is not supposed to make further inquiries when the facts are not in dispute to the effect that both of them were holding the charge of the President and the Vice-President who having knowledge of the affairs of the Company.
Considering the concurrent findings of fact arrived at by the both the authorities below, we are of the opinion that no question of law, much less any substantial question of law arises from the impugned orders passed by the CESTAT.
The appeals therefore being devoid of any merit, are accordingly dismissed.
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2024 (9) TMI 1300
Whether the arbitral award is in conflict with the public policy of India, or/ and is vitiated by patent illegality appearing on the face of the award?
Gita Power (R-2) could have been subjected to arbitration and made jointly and severally liable along with OPG for the award or not - time limitation of Enexio's claim for the outstanding principal amount - counterclaim in respect of the cost of repair/replacement of gearboxes and fan modules could be treated as barred by time or not - preservity of arbitral award for payment of the outstanding principal amount with interest - adoption of different yardstick for adjudging the counterclaim than what was adopted for adjudging the claim.
HELD THAT:- It is concluded as follows:
(i) Though the ACC Unit /project was of OPG, Gita Power, as the holding company of OPG, had actively participated in the formation of the contract for the project. Not only did it place purchase order(s) on Enexio but made advance payment(s) thereunder to Enexio, which were subsequently affirmed by OPG. The two, therefore, not only acted as a single economic entity but as agents of each other. Hence, the arbitral tribunal was justified in holding that Gita Power was bound by the arbitration agreement and jointly and severally liable along with OPG to pay the awarded amount.
(ii) The claim of Enexio was an indivisible claim for compensation in lieu of goods supplied, and work done, based on breach of the contract, therefore limitation for the claim was governed by Article 55, and not by Articles 14, 18 and 113, of the Schedule to the 1963 Act.
(iii) The claimant’s claim for the outstanding principal amount matured on 19 March 2016. Therefore, limitation started to run from that date. However, even if we count limitation from 21 September 2015 (as found by the Tribunal) it will have no material bearing on the award for the reason indicated below.
(iv) The limitation for the claim as well as counterclaim(s), other than those relating to cost of repair/replacement of gear boxes and fan modules, stood extended, under Section 18 of the 1963 Act, on the basis of acknowledgement made in the minutes of meeting dated 19 April 2018, and, therefore, those were within limitation as on the date of :
(a) commencement of arbitration (i.e. 2 May 2019); and (b) the date of filing counterclaim (i.e. 15 July 2019) and were rightly considered on merit.
(v) The counterclaims qua cost of repair /replacement of gear boxes and fan modules were rightly held barred by time as in respect thereof there was no recital in the minutes of meeting dated 19 April 2018.
(vi) Rejection of prayer to declare debit notes invalid, on ground of limitation, had no adverse impact on the claimant’s claim for compensation, which was well within the extended period of limitation.
Thus, there is no palpable error in the arbitral award as to be termed ‘patently illegal’ / ‘perverse’, or in conflict with public policy of India. Therefore, the Division Bench of the High Court was justified in setting aside the judgment and order of the Single Judge and restoring the arbitral award.
Appeal dismissed.
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2024 (9) TMI 1299
Seeking appointment of a Sole Arbitrator to adjudicate the disputes between the Petitioners - Section 11(6) read with Section 11(9) of the Arbitration and Conciliation Act, 1996 - whether the SRG Group, being a non-signatory to the FAA, should also be referred to arbitration along with the AMP and JRS Groups? - HELD THAT:- The issues in the first category have to be mandatorily decided by the Chief Justice or his designate under Section 11 of the Act, 1996. This included the question whether there is an arbitration agreement and whether the party that has applied under Section 11 is also a party to such an agreement.
The crucial question that arose for consideration by this Court in Duro Felguera S.A. v. Gangavaram Port Limited [2017 (10) TMI 1304 - SUPREME COURT] was the effect of the change introduced by the 2015 Amendment to the Act, 1996 which inserted Section 11(6A). The Court held that all that needs to be looked into is whether the agreement contained a Clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement i.e., the existence of the arbitration agreement, nothing more, nothing less.
A two Judge-Bench of this Court in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. [2019 (4) TMI 716 - SUPREME COURT] considered the effect of Section 11(6A) which confined the jurisdiction of the Court to examine the “existence of an arbitration agreement” on an arbitration agreement contained in an unstamped document or contract. The Court was of the opinion that its enquiry as to whether a compulsorily stampable document, which contains the arbitration clause, is duly stamped or not, is only an enquiry into whether such an arbitration agreement exists in law and this does not in any manner amount to deciding “preliminary question(s)” that arise between the parties.
The recent Constitution Bench decision of this Court in Cox and Kings Limited v. SAP India Private Limited and Another [2023 (12) TMI 427 - SUPREME COURT (LB)], specifically dealt with the question of impleading a non-signatory as a party in the arbitration proceedings and the corresponding scope of enquiry at the referral stage. It was held therein that Section 16 is an inclusive provision which comprehends all preliminary issues touching upon the jurisdiction of the arbitral tribunal and the issue of determining parties to an arbitration agreement goes to the very root of the jurisdictional competence of the arbitral tribunal.
This Court took the view that the referral court is required to prima facie rule on the existence of the arbitration agreement and whether the non-signatory party is a veritable party to the arbitration agreement. However, recognising the complexity of such a determination, the arbitral tribunal was considered the proper forum since it can decide whether the non-signatory is a party to the arbitration agreement on the basis of factual evidence and application of legal doctrine.
The fact that a non-signatory did not put pen to paper may be an indicator of its intention to not assume any rights, responsibilities or obligations under the arbitration agreement. However, the courts and tribunals should not adopt a conservative approach to exclude all persons or entities who intended to be bound by the underlying contract containing the arbitration agreement through their conduct and their relationship with the signatory parties. The mutual intent of the parties, relationship of a non-signatory with a signatory, commonality of the subject matter, composite nature of the transactions and performance of the contract are all factors that signify the intention of the non-signatory to be bound by the arbitration agreement.
Considering the complexity involved in the determination of the question whether the SRG Group is a veritable party to the arbitration agreement or not, it would be appropriate for the arbitral tribunal to take a call on the question after taking into consideration the evidence that may be adduced by the parties before it and the application of the legal doctrine as elaborated in the decision in Cox and Kings [2023 (12) TMI 427 - SUPREME COURT (LB)].
Mr. Akil Kureshi (Former Chief Justice, High Court of Rajasthan) is appointed to act as the sole arbitrator. The fees of the arbitrator including other modalities shall be fixed in consultation with the parties - petition allowed.
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2024 (9) TMI 1298
Levy of interest and penalty - evasion of tax - challenge to SCN on the ground of jurisdiction - HELD THAT:- The petitioner has not submitted any reply to the notice issued under Section 74 of the CGST Act which is a show cause notice. The petitioner has directly approached this Court challenging the said show cause notice on the ground of jurisdiction. It is also noticed that the show cause notice has emanated on the basis of GST audit report after the record for the period 2017-18, 2018-19, 2019-20 was examined by the internal Audit Team of Cirlce-1, Audit Commissionerate CGST, Chandigarh in terms of Section 65 of the CGST Act.
The petitioner’s objection that the officer having no jurisdiction to issue notice to it on the assumption of having its business in other States is noticed and to be rejected as misconceived. There is no jurisdictional error on the part of the respondents in issuing show cause notice under Section 74 of the CGST Act.
The powers of the officers who have been appointed under Sections 4, 5 of the CGST Act and those appointed under Section 6 of the CGST Act are the same. A person is appointed by the State is authorized to be a proper officer for the purpose of this Act - once notice has been issued to the petitioner under Section 74 (1) of the CGST Act by the State GST Officer of Punjab, no other officer from any other State would be authorized to initiate proceedings and the question regarding evading of tax or availing of wrongful input tax credit or other issues in terms of Section 74 will be examined by the same officer alone.
The authority at Chandigarh would have the power to issue notice under Section 74 of the CGST Act even with regard to dealings of the company in other States, and therefore, there is no jurisdiction error.
No findings given relating to the challenge made by the petitioner regarding the contents of the notice under Section 74 of the CGST Act and the petitioner is left open to take up all arguments and objections in its reply.
Petition dismissed.
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2024 (9) TMI 1297
Under declaration of output tax - Excess claim of ITC - mismatch of GSTR-01 with GSTR-09 - technical glitch in the GST portal functionality - HELD THAT:- The adjudicating authority has examined the issue in some detail and in terms of an order dated 25.08.2024, the adjudicating authority has accepted the petitioner’s contention that there is technical glitch, whereby the advance amount has been added instead of being reduced. Accordingly, the proposed demand on similar grounds has been dropped. The petitioner, thus, prays that the impugned order be set aside and the adjudicating authority be directed to decide afresh.
Although, the petitioner has a statutory remedy of an appeal, but considering the controversy is in a narrow compass and it appears that the adjudicating authority has already examined the issue for the subsequent period, we consider it apposite to remand the matter to the adjudicating authority to consider afresh.
The matter remanded to the adjudicating authority, to pass a fresh order after affording an opportunity of personal hearing to the petitioner - petition disposed off by way of remand.
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2024 (9) TMI 1296
Refund of IGST which was lying in the electronic cash register - rejection on the ground that provisions of Sub-section (6) of Section 49 of the Central Goods and Services Tax Act, 2017 were not complied with - HELD THAT:- The respondents cannot withhold the refund, which has been directed to be issued by the appellate authority. The Order in Appeal dated 21.01.2024 is required to be implemented unless the same is otherwise stayed by a superior forum. Concededly, in the present case, the respondents have not preferred any appeal or any proceedings to challenge the Order in Appeal dated 21.01.2024. It is impermissible for the respondents to simply ignore the said order.
The respondents are directed to forthwith process the claim for refund in terms of the Order in Appeal dated 21.01.2024 along with applicable interest in accordance with law - Petition allowed.
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2024 (9) TMI 1295
Cancellation of petitioner’s GST registration with retrospective effect - vague SCN - violation of principles of natural justice - HELD THAT:- The impugned SCN did not propose to cancel the petitioner’s GST registration with retrospective effect. However, a letter dated 11.11.2022 sent by the Deputy Commissioner (Anti Evasion), CGST West Commissionerate to the Assistant Commissioner, Janakpuri Division, CGST West was projected on the GST portal. The said letter indicates that during the physical verification conducted at the premises of the petitioner’s principal place of business the firm was found non-existent. In terms of the said letter, the proper officer was directed to initiate the cancellation proceedings from the date of the registration.
The impugned order cancelling the petitioner’s GST registration does not indicate any reason for cancelling the petitioner’s GST registration except referring to the impugned SCN.
The petitioner is essentially aggrieved by the cancellation of GST registration with retrospective effect - the petitioner’s contention that it has not been afforded the sufficient opportunity to respond to any proposed action for cancellation of his GST registration with retrospective effect, is accepted.
It is considered apposite to set aside the impugned order cancelling the petitioner’s GST registration with retrospective effect and permit the petitioner to file a response to the impugned SCN assuming that the same proposed to cancel the petitioner’s GST registration with retrospective effect - petition disposed off.
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2024 (9) TMI 1294
Cancellation of petitioner’s GST registration with retrospective effect - seeking modification in the order to the limited extent that the same be made operative from March, 2022 - violation of principles of natural justice - HELD THAT:- The reason for which the petitioner’s GST registration was cancelled was not reflected in the SCN. Although, the petitioner claims that it did not receive the SCN, it is apparent that even if it had, the same provided it no opportunity to respond to the reasons as set out in the impugned order cancelling its GST registration.
The petitioner is not aggrieved by the cancellation of its GST registration as it had closed down its business. The petitioner is, essentially, aggrieved by cancelling of its GST registration with retrospective effect.
The present petition is disposed of with the direction that the petitioner’s GST registration stands cancelled with effect from 24.05.2022 (being the date on which it was suspended) and not with retrospective effect from 11.09.2017.
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2024 (9) TMI 1293
Cancellation of petitioner’s GST registration with retrospective effect - petitioner has had no opportunity to respond to the allegations - Violation of principles of natuarl justice - HELD THAT:- The impugned order, which has been passed, cancelling the petitioner’s GST registration, falls foul of the principles of the natural justice.
Concededly, the petitioner has had no opportunity to respond to the allegations on the basis of which the said action was premised. Neither the SCN nor the impugned order reflect any reasons for cancelling the petitioner’s GST registration.
The impugned order is set aside. The petitioner’s GST registration is directed to be restored forthwith - Petition disposed off.
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2024 (9) TMI 1292
Violation of principles of natural justice - non-service of SCN - SCN were placed under the tab ‘Additional Notices and Orders’, not readily accessible - HELD THAT:- The SCN were placed under the tab ‘Additional Notices and Orders’ and were not readily accessible. This Court is informed that the said issue has since been remedied and the GST portal has been redesigned to place the notices as well as additional notices and orders under the menu item ‘View Notices and Orders’. Thus, now a user can view both tabs ‘Notices and Orders’ and ‘Additional Notices and Orders’ on the same page. However, it is not disputed that at the material time of issuance of the SCN, the tab ‘Additional Notices and Orders’ was not placed in a position which would invite the taxpayer’s attention to the said tab.
The impugned order is set aside - Petition allowed.
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2024 (9) TMI 1291
Challenge to SCN cancelling registration of petitioner - petitioner’s principal place of business was found to be non-existent at the time of physical verification - It is the petitioner’s case that the impugned SCN has been issued on an ex-facie erroneous conclusion that the petitioner’s principal place of business was found to be non-existent.
HELD THAT:- There are merit in the petitioner’s contention that his premises were in existence at the time of physical verification and the respondents’ conclusion that petitioner’s principal place of business was non-existent at the time of physical verification is ex facie erroneous. The respondents’ conclusion is premised solely on the basis of purported enquiries made from the “nearby shop owners”. However, the Field Report does not mention the name of the said shop owners or any other details.
It is difficult to countenance that a taxpayer’s registration can be cancelled solely on the basis of some general queries/enquiries from random persons, of which there is no record. In this case the petitioner’s premises are found to be in existence and the sign board outside the premises also bears the petitioner’s GSTIN. The Field Report also encloses a photograph of a person in front of the premises of the petitioner - the same establishes that the petitioner was in possession of the premises in question at the material time. The proper officer entertains an apprehension that the petitioner was non-existent at the principal place of business three or four days prior to the date of the physical inspection. It is the petitioner’s contention that the shop in question was lying closed and was opened four or five days before the date of the physical inspection as, prior to that, the petitioner’s GST registration was suspended.
It is considered apposite to direct the petitioner to file a response to the impugned SCN along with all documents relied upon by him so as to establish that his principal place of business is in existence since the date of its registration. The proper officer shall consider the reply of the petitioner and shall take an informed decision thereon - petition disposed off.
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2024 (9) TMI 1290
Restoration of Goods and Services Tax Identification Number (GSTIN) - cancellation of GST registration - Change of principal place of business address - HELD THAT:- The issue whether the petitioner was in existence is required to be addressed by considering the petitioner’s document of being in existence at its principal place of business prior to shifting to the new address.
As far as the petitioner’s current address is concerned, the petitioner has provided the documents to substantiate that he is in existence including the photograph of the premises bearing the sign board of D K Freight Carrier as well as indicating his name and mobile phone number.
The appellate authority has rejected the petitioner’s appeal on the ground that he had not provided sufficient documents as to his principal place of business. Insofar as documents relating to the current address of the petitioner is concerned, the petitioner has provided the same.
It is considered apposite to remand the matter to the appellate authority to consider the matter afresh. The petitioner may file all documents on which it seeks to rely upon to show that he was carrying on the business from the declared principal place of business till he shifted to the current address - petition allowed by way of remand.
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2024 (9) TMI 1289
Seeking grant of bail - forgery - territorial jurisdiction - creation of fake forms - Admissibility of confessional statements - HELD THAT:- This Court is of the opinion that the present case is of a forgery and not related to GST, therefore, no benefit of bail granted in the aforesaid case can be given in the present case.
The inquiry has been defined under Section 2(g) of Cr.P.C. to mean every inquiry, other than trial, conducted by a Magistrate or a Court. It would also be appropriate to understand the meaning of ‘investigation’ which has been defined under Section 2(h) Cr.P.C. as all the proceedings for collection of evidence conducted by a police officer - ‘Trial’ has not been defined under the Code of Criminal Procedure, 1973. Lexicologically, ‘trial’ means a judicial examination of a case in accordance with law. Hence, for an inquiry or trial, it is the court which is the focal point, whereas for an investigation, it is the police officer. Thus, in the present case, the arguments as placed by learned counsel for the applicants, on the point of jurisdiction, have no legs to stand.
Section 27 of the Indian Evidence Act, 1872 deals with the relevancy of information received from a person accused of any offence while in the custody of the police officer. The Section provides an exception to the general rule that confessions made to the police officers are inadmissible in evidence. From the aforesaid, the scope of Section 27 of the Act, 1872 is that it applies to any information given by the person accused of an offence, which leads to the discovery of a fact - The condition for applicability of the aforesaid Section is that the person giving the information must be an accused in police custody. The information provided must lead directly to the discovery of the material fact and only that portion of information which directly leads to the discovery is admissible. For example, if an accused, while in custody, reveals the location of a weapon used in the crime and upon searching that location, the weapon is indeed found, the part of statement where accused described the location of weapon is admissible in courts as evidence.
In the present case, after registration of the FIR when forgery had been done by using the Aadhaar Card and PAN Card of the informant, fake GST firms were registered, Investigating Officer proceeded on the information as provided by a secret informer and arrested two accused who disclosed about the office where work of the firm was being done. On the aforesaid information of the arrested accused persons, the Investigating Officer reached the office premises, wherein he found other persons working for the firm of the arrested accused persons. Laptops, mobiles, SIM Cards, fake invoices were recovered, thus, discovering such fact which connected them with the main accused who had got registered the fake firms and the consequential forgery or theft of GST was found. Thus, that part of the discovery of fact is admissible as per Section 27 of the Act. Therefore, argument as placed by learned counsel for the applicants regarding the fact that confessional statements can be taken as a piece of evidence, has no legs to stand.
The present case relates to economic offences, such as large scale fraud, money laundering and corruption, are often viewed seriously because they affect the economic fabric of the society. The Courts may deny bail in such cases especially if the accused holds a position of influence or power. In the present case, money trail of crores, which affects the society at large scale, is involved which started from registration of fake firms by using Aadhaar and PAN Cards of the informant who had not applied for such registration.
In the present case from the report of the concerned District Judge/ Chief Judicial Magistrate, it is clear that the accused have avoided coming to the court and discharge application of one of the accused has been rejected. One or the other grounds are being taken by the accused persons in getting the matter adjourned so that the charge is not framed, therefore, they are trying to cause deliberate delay so that the charges may not be framed, hence, interfering in judicial process, thus, giving ample reason of not enlarging them on bail.
As assisted by the State that backbone of Goods Services Tax regime and Input Tax Credit, is that under the GST Regime ITC follows supply chain not only in intra-state but also interstate supply. Thus, on the ground of jurisdiction as argued by learned counsel for the applicant this Court is of the view that though registration of fake firms were at Punjab and Maharasthra, the complainant is resident of New Delhi and the FIR has been lodged at Gautam Buddh Nagar, the genuineness of complaint questioning the territorial jurisdiction cannot be raised on the basis of occurrence as the same cannot be said to be at one place where the GST firm was registered but its connections with other fake firms are also required to be seen.
This is not a fit case for granting bail - bail applications are rejected.
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2024 (9) TMI 1288
Cancellation of registration and the dismissal of an appeal filed - time limitation - Constitutional validity of Section 29(2) of the CGST Act and BGST Act - applicability of Article 19(1)(g) and Article 21 of the Constitution of India - HELD THAT:- The petitioner admittedly did not agitate the cause within the four walls of the statute and hence has raised the question of constitutional validity of Section 29 (2) under both the enactments. The decision in Rohit Enterprises [2023 (2) TMI 759 - BOMBAY HIGH COURT] which only has a persuasive effect, which also does not have any declaration of law and has only exercised discretion under Article 226 of the Constitution of India on the facts which came out therein. The facts though not identical, the hardship projected is almost similar to that in CWJC 11874 of 2024 and the Division Bench of the High Court found that the constitutional guarantee to carry out trade and commerce is unconditional and unequivocal and it must be enforced regardless of shortcomings in the scheme of the GST enactment.
There is no ground validly raised against the delay in filing an appeal - Section 30 which provides for revocation of cancellation of registration if applied for within thirty days.
There arev absolutely no reason to exercise our discretionary power to interfere with the orders passed; clearly within the boundaries of the statute - there are no reason to entertain the writ petition on the ground of testing the constitutional validity of Section 29 (2) - The writ petition is dismissed.
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2024 (9) TMI 1287
Appeal rejected on the ground of non-supply of certified copy - direction sought to restore the appeal - whether the certified copy of the order appealed is required to be submitted in view of amended Rules 108 and 109 of the GST Rules with effect from 26th December 2022?
HELD THAT:- When an order which is appealed against is issued or uploaded on the common portal and the same can be viewed by the appellate authority, requirement of submitting certified copy of such uploaded order for its authenticity would be insignificance. Thus, the appellate authority could not have rejected the appeal on such a technical ground more particularly when the statute does not provide the same.
The impugned order dated 28th February 2023 passed by the respondent No. 3 is hereby quashed and set aside and the matter is remanded back to the appellant authority to pass a fresh de novo order on merits after giving an opportunity of hearing to the petitioner - Petition disposed off.
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2024 (9) TMI 1286
Freezing of the financial assets/demat accounts of the Petitioner - five demat accounts of petitioner have been attached without even issuing a notice let alone giving an opportunity to present petitioner’s case - Violation of principles of natural justice - HELD THAT:- The petitioner ought to have been given notice before the impugned attachment orders were issued to the depository participants and/or to NSDL.
The depository participants, viz., Kotak Mahindra Bank Limited, Geojit Financial Services Limited, HDFC Bank Limited, Religare Broking Limited are hereby informed that the attachment orders have been quashed and set aside.
Petition disposed off.
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2024 (9) TMI 1285
Review petition under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 - mistake apparent on the face of record or not - HELD THAT:- The petitioner has sought for review of the impugned order in this review petition mainly on the ground of some mistake or error apparent on the face of record, but it is claimed by the review-petitioner that the issue involved is not covered by the judgment passed in M/S. LAXMI CONSTRUCTION VERSUS STATE TAX OFFICER, CT & GST CIRCLE, BARBIL. [2024 (5) TMI 1214 - ORISSA HIGH COURT].
It is hardly disputed by the learned counsel for the parties that the impugned order was passed by this Court in presence of the present learned arguing counsels, but no objection was ever raised when such order was passed by this Court which is reflected in the rival submissions as recorded in the impugned order passed in the writ petition and, therefore, the impugned order, which was passed clearly demonstrates and reflects that the impugned order has been passed in their presence, but subsequently, the petitioner has come up before this Court seeking review of the impugned order on the ground that there is mistake or error apparent on the face of record.
Since the order sought to be reviewed has been passed in the presence of the learned counsel for the parties without any objection and the order impugned in the writ petition being appealable one, this Court does not see any reason to hold that there is mistake or error apparent on the face of the record so as to make the impugned order liable for review.
Thus, no grounds for review of the impugned order having made out by the petitioner, the present Review Petition lacks merit and is liable to be dismissed - the review petition being devoid of merit stands dismissed.
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2024 (9) TMI 1284
Refund of the Input Tax Credit (ITC) accumulated due to Inverted Tax Structure - Circular No.135/15/2020-GST - HELD THAT:- The Division Bench of this court in the case of BAKER HUGHES ASIA PACIFIC LIMITED VERSUS UNION OF INDIA, THE STATE OF RAJASTHAN, THE DEPUTY COMMISSIONER, STATE TAX, CIRCLE BARMER, RAJASTHAN, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2022 (7) TMI 73 - RAJASTHAN HIGH COURT], while dealing with the challenge of the Circular No.135/15/2020-GST held it to be in conflict with Section 54 (3)(ii) of the Act. It was also considered that claim of refund of ITC was prior to date of issuance of the Circular.
The additional reason given shall not nullify the fact that the Circular had not stood the judicial scrutiny. The Appellate Authority has allowed the appeal solely relying upon the Circular No.135/15/2020-GST. Consequently, the impugned order is set aside.
The matter is remitted back to the Appellate Authority to decide the appeal afresh in accordance with law - petition allowed by way of remand.
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2024 (9) TMI 1283
Change in classification of imported goods supplied on ships - Applicability of GST rate under notification No. 1/2017-Central Tax (Rate) - HELD THAT:- The applicant states that the goods/spares which consequent to its imports are supplied on ships are mostly essential part of ship to make it sea worthy. As far as this claim goes, the HSN explanatory notes of chapter 89 under which the applicant wants his goods to be classified after the imports are made under various tariff items, which states that contrary to the provisions relating to the transport equipment falling in other Chapters of Section XVII, this Chapter excludes all separately presented parts (other than hulls) and accessories of vessels or floating structures even if they are clearly identifiable as such. Such parts and accessories are classified in the appropriate headings elsewhere in the nomenclature.
The Hon’ble CESTAT in its order dated 10.3.2005 [2005 (3) TMI 627 - CESTAT, CHENNAI], had framed the question to be decided as to whether the subject equipment’s which were declared as ‘ship spares’ for repairs of ocean going vessels are covered by the description of goods under SI. No. 227 of table annexed to notification No 23/1998-Cus. As is evident, the facts of the case & the question raised being different, the reliance placed by the applicant is not tenable, as far as the present dispute is concerned.
Thus, as far as classification of the goods when supplied by the applicant as is mentioned in Annexure l-A is concerned, it would not change i.e. the classification would remain same as mentioned in the bill of entry filed before Customs. The goods when supplied by the applicant, post importation would be classified under the same chapter, heading, sub heading and tariff item under which it was classified by Customs and on which IGST was discharged during the course of import of the said goods.
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9911796707
