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Showing 121 to 140 of 1556 Records
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2025 (1) TMI 1437
CENVAT Credit - Ammonium Sulphate used in urea under Rule 6(3) of CENVAT Credit Rules was or was not required to discharge any duty during the impugned period during May 2015 to March 2016 - HELD THAT:- It finds that issue is no more res-integra and has been recently decided based on various other case laws in HINDUSTAN CHEMICALS COMPANY VERSUS COMMISSIONER OF C.E. & S.T. -SURAT-II [2024 (5) TMI 459 - CESTAT AHMEDABAD] in which inter alia, it was held by Division Bench of CESTAT Ahmedabad that the Ammonium Sulphate being a by-product arising out of manufacture of final product, namely Potassium Cyanides and Sodium Cyanides, will not be liable for payment of any amount in terms of Rule 6(3) of the Cenvat Credit Rules, 2004.
Conclusion - Ammonium Sulphate, as a by-product from manufacturing Potassium Cyanides and Sodium Cyanides, was not liable for payment under Rule 6(3) of the CENVAT Credit Rules.
Appeal allowed.
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2025 (1) TMI 1436
Re-determination of valuation of the goods i.e. parts/components manufactured by the appellant in terms of Section 4(1)(b) of the Central Excise Act, 1944 read with Rules 6 and 11 of the Central Excise Valuation Rules, 2002 along with penalty - whether the notional cost of design and drawings provided free of cost by MSIL to the appellant should be included in the assessable value for excise duty purposes? - HELD THAT:- The issue raised was whether the notional cost of specifications in the form of drawings and designs supplied free of cost by Maruti to the potential vendors should be included in the assessable value of the parts or components manufactured by the vendors and cleared to Maruti for their motor vehicles. To appreciate the issue the Principal Bench considered the provisions of Section 4 of the Central Excise Act and Rule 6 of the Central Excise Valuation Rules, 2000 and also distinguished the decision of the Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE JAMSHEDPUR VERSUS TATA MOTORS [2008 (12) TMI 129 - CESTAT KOLKATA] and concluded that the notional cost of drawings and designs supplied free of cost by Maruti to the vendors cannot be included in the assessable value of the parts and components manufactured by vendors and cleared to Maruti for the purpose of payment of central excise duty.
It is also pertinent to take note of the fact that the Principal Bench had noted the distinction between the mere specification and detailed engineering drawing as considered by the Tribunal in the earlier decision in M/S. MANGALORE REFINERY & PETROCHEMICALS LIMITED. VERSUS THE COMMISSIONER OF CUSTOMS MANGALORE. [2012 (9) TMI 712 - CESTAT, BANGALORE], where the Tribunal has held that there is a distinction between mere specifications and detailed engineering drawing. It is only the latter which is covered under rule 9(1)(b)(iv) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (which is now rule 10(1)(b)(iv) of the 2007 Customs Valuation Rules).
Conclusion - The specifications in the nature of design/drawings provided by MSIL were merely layout or dimensions of the desired parts and components as they have to be necessarily manufactured as per the requisite dimensions so that they can be fitted in the vehicle manufactured by the Maruti.
Appeal allowed.
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2025 (1) TMI 1435
Levy of penalty - evasion of tax under the Punjab VAT Act by not submitting the bills at ICC despite the fact that the details of bills are duly mentioned in the Statutory Form of Rajasthan (VAT 47) and was produced at the time of generation of information for other transactions - jurisdiction to check and detain the vehicles at the ICC premises - HELD THAT:- The undisputed fact is that the goods i.e. iron goods being transported in two vehicles were detained by the Excise and Taxation Officer (MW), Bathinda for verification on the grounds that the goods in transit were in excess by weight as was detected after weighment, and requisite information in respect of excess goods was not furnished at any ICC. After issuance of show cause notice, Shri Neeraj Kumar Manager of the firm M/s Shree Shiva Steels, Mandi Gobindgarh, appeared before the Detaining Officer who claimed himself to be the owner of the excess goods loaded in both the vehicles.
A perusal of the record further shows that the drivers of both the trucks did not produce any document in respect of excess goods and categorically stated that they have no other document relating to the goods in question. The explanation given by owner of the goods that since the TIN of the consignor firm was blocked, therefore, the drivers could not generate the information in respect of excess goods, cannot be believed since perusal of the record shows that GR No.980 and 981 alongwith retail invoices No.39 and 40 dated 19.08.2009 were produced by Sh. Neeraj Kumar stated to be Manager of the appellant-firm, after the show cause notice was issued to the owner of the goods. Further these documents should have been with the drivers at the time of furnishing information at ICC as per the requirement of Section 51 (2) of the Act as referred to above. This proves the intention of the appellant to evade tax.
A perusal of the record shows that the Ld. AETC (MW) Bathinda after conducting proper inquiry and after giving full opportunity of being heard to the appellant, has passed the penalty order under Section 51 (7) (c) of the Act.
There are no infirmity in the order dated 30.07.2010 passed by the Ld. VAT Tribunal, Punjab, Chandigarh, the same is upheld - appeal dismissed.
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2025 (1) TMI 1434
Denial of input tax credit in terms of Section 19(5)(c) and 19(2)(V) of the TNVAT Act, 2006 - whether the petitioner was entitled to file a petition under Section 84 of the TNVAT Act, 2006 which is pari materia to Section 55 of the TNGST Act, 1959? - HELD THAT:- The application that was filed by the petitioner under Section 84 of the TNVAT Act, 2006 is in time. Even if the writ petition that were filed by the petitioner earlier challenging the Recovery Notice and the Assessment order dated 24.06.2016 were to be dismissed on account of latches, it cannot be construed that the application under Section 84 of the TNVAT Act, 2006 were barred. Even if the Appellate remedy is not available under Section 51 of the TNVAT Act, 2006, the remedy under Section 84 of the Act cannot be denied particularly when the law has been settled in favour of the assessee.
The impugned order dated 11.05.2022 stands quashed and the case stands remitted back to the respondent to pass a fresh order on merits - Petition allowed by way of remand.
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2025 (1) TMI 1433
Seeking quashing of FIR - prolonged trial - right to speedy trial - Petitioner has asserted that she was never involved in any illegal activity and cooperated during the investigations and had also provided all the documents to the Investigating Officer, but the facts were not presented in a correct manner before the Court - HELD THAT:- It is not in dispute that the FIR had been registered in the year 1999 for the offences, punishable under Sections 406/420/468/471/120B of IPC, 1860 and Section 50 (1) of the DST Act and Section 9 of the CST Act along with the allegations of Forgery, Breach of Trust and use of False Documents. From the FIR, the Chargesheet and the Charges which have been framed, it is evident that the allegations made against the Petitioner are serious in nature.
In Hussainara Khatoon (I) vs. Home Secretary, State of Bihar [1979 (2) TMI 194 - SUPREME COURT], the Apex Court observed that Article 21 of the Constitution of India confers constitutional right on every person not to be deprived of his life or liberty, except in accordance with the requirement of that Article that some semblance of a procedure should be prescribed by law which should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not fair, reasonable or just, such deprivation would be violative of Fundamental Right. It was further observed that deprivation of liberty of a person cannot be termed as reasonable, fair or just unless such procedure ensures a speedy trial for the determination of guilt of such person. Therefore, reasonably expeditious trial is an integral and essential part of the Fundamental Right and Liberty enshrined under Article 21 of the Constitution. It was further observed that peculiar facts and circumstances of the individual cases may be considered for quashing of the proceedings.
The Apex Court in the matter of Santosh Dev [1994 (2) TMI 330 - SUPREME COURT], it was observed that Article 21 of the Constitution of India recognises the constitutional right of speedy trial. It was also noted that the trial was not concluded within four years but in terms of Section 245 (3) of Code of Criminal Procedure, 1973 which was inserted in 1998, mandated that the trial be completed in four years.
In the present case, it cannot be denied that the FIR got filed in the year 1999, in which the Chargesheet came to be filed on 10.11.2003 and the Charges were framed in 2021. However, since then, testimony of 5 witnesses, out of 17 prosecution witnesses, has been recorded. None of the grounds as stated in the aforesaid judgments has been pleaded in the present case, aside from the fact that the Petitioner has appeared umpteen times before the Court and is now 71 years old and is ailing.
There is no case made out for quashing of the Chargesheet as well as of the FIR.
Conclusion - There was no basis for quashing the FIR or Chargesheet. The trial court is directed to expedite proceedings to ensure a timely conclusion.
Petition disposed off.
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2025 (1) TMI 1432
Dishonour of cheque - petitioner arraigned as an accused in a proceeding initiated u/s 138 read with section 141 of the Negotiable Instrument Act - petitioner resigned from the company before the issuance of the cheque - complaint lacked specific allegations - HELD THAT:- In NARENDER KUMAR SURI AND OTHERS VERSUS M/S NARENDRA POLYMERS PVT. LTD. [2014 (10) TMI 1084 - PUNJAB AND HARYANA HIGH COURT], a Single Bench of Punjab and Haryana High Court held that the Director of Public Limited Company or Private Ltd. Company can tender his resignation unilaterally and without filing in Form 32 and without sending a notice to Registrar of Companies. Filing in of said Form and giving of due intimation and information to Registrar of Companies is duty of company secretary and not of an individual director. it is for the company secretary to fill in forms as prescribed and to give due information and intimation to the ROC, as the law requires and thereafter, to be so mentioned in all the prescribed registers of company, accounts and balance sheet of company and thereafter the said fact is to be brought to the notice of the members of the company as early as possible and at the latest in annual general meeting.
Section 168 (2) of the Companies Act, 2013 also provides that the resignation of a director shall take effect from the date on which the notice is received by the company or the date if any specified by the director in the notice, whichever is later. In the present case from the supplementary affidavit filed by the petitioner it further discloses that the letter of resignation was sent through speed post on 14.03.2020 and it was delivered to the accused company on 16.03.2020 - Proviso to section 168 (1) states that a director may also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within 30 days of resignation but this proviso is not mandatory. A resignation cannot be treated as not accepted by the Company simply because Director had not sent the copy of resignation to the Registrar within 30 days. Similarly, even after tendering resignation and the company even after receiving the same, if does not call meeting for its acceptance that also beyond the control of the petitioner and the petitioner cannot be held responsible for the same.
It is settled law that putting the criminal law into motion is not a matter of course or to settle the scores between the parties. Courts cannot be a mere spectator to it. Before a magistrate taking cognizance of an offence under section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance with the statutory requirement. In the aforesaid factual backdrop and the legal position as stated above, continuation of the proceeding quo the petitioner will clearly be an abuse of process of the court.
Conclusion - The petitioner was not liable under Section 138/141 of the N.I. Act due to his resignation prior to the cheque issuance and the lack of specific allegations in the complaint.
Application allowed.
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2025 (1) TMI 1431
Dishonour of cheque - petitioner resigned as a director prior to the issuance of the dishonored cheque - Section 138 read with Section 141 of the Negotiable Instruments Act - HELD THAT:- In NARENDER KUMAR SURI AND OTHERS VERSUS M/S NARENDRA POLYMERS PVT. LTD. [2014 (10) TMI 1084 - PUNJAB AND HARYANA HIGH COURT], a Single Bench of Punjab and Haryana High Court held that the Director of Public Limited Company or Private Ltd. Company can tender his resignation unilaterally and without filing in Form 32 and without sending a notice to Registrar of Companies. Filing in of said Form and giving of due intimation and information to Registrar of Companies is duty of company secretary and not of an individual director. it is for the company secretary to fill in forms as prescribed and to give due information and intimation to the ROC, as the law requires and thereafter, to be so mentioned in all the prescribed registers of company, accounts and balance sheet of company and thereafter the said fact is to be brought to the notice of the members of the company as early as possible and at the latest in annual general meeting.
Section 168 (2) of the Companies Act, 2013 also provides that the resignation of a director shall take effect from the date on which the notice is received by the company or the date if any specified by the director in the notice, whichever is later. In the present case from the supplementary affidavit filed by the petitioner it further discloses that the letter of resignation was sent through speed post on 14.03.2020 and it was delivered to the accused company on 16.03.2020 - Proviso to section 168 (1) states that a director may also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within 30 days of resignation but this proviso is not mandatory. A resignation cannot be treated as not accepted by the Company simply because Director had not sent the copy of resignation to the Registrar within 30 days. Similarly, even after tendering resignation and the company even after receiving the same, if does not call meeting for its acceptance that also beyond the control of the petitioner and the petitioner cannot be held responsible for the same.
It is settled law that putting the criminal law into motion is not a matter of course or to settle the scores between the parties. Courts cannot be a mere spectator to it. Before a magistrate taking cognizance of an offence under section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance with the statutory requirement. In the aforesaid factual backdrop and the legal position as stated above, continuation of the proceeding quo the petitioner will clearly be an abuse of process of the court.
Conclusion - The petitioner was not liable under Section 138/141 of the N.I. Act due to his resignation prior to the cheque issuance and the lack of specific allegations in the complaint.
Application allowed.
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2025 (1) TMI 1430
Dishonour of Cheque - whether the amended provision contained under Section 143A of the Negotiable Instruments Act, 1881 would apply on the complaint filed prior to enactment and enforcement of this provision? - HELD THAT:- Bare perusal of Section 143A of the Act of 1881 indicates that the Court trying an offence under Section 138 of the Act of 1881, may direct the drawer of the cheque to pay interim compensation to the complainant i.e. amount not exceeding 20% of the cheque amount. The sub-section (4) of Section 143A of the Act of 1881 provides that in case the drawer of the cheque is acquitted, the Court shall direct the complainant to repay the same amount to the drawer - This Court cannot lose sight of the fact that, prior to insertion of the new provision, i.e., Section 143A in the Act of 1881, there was no provision in the Act for issuing directions to the drawer of cheque to pay interim compensation of 20% of the cheque amount to the complainant prior to the commission of the offence under Section 138 of the Act of 1881.
Hon’ble Apex Court in the case of Surinder Singh Deswal [2019 (5) TMI 1626 - SUPREME COURT] has held that the new provisions contained under Section 148 of the Act of 1881 as amended on 01.09.2018 shall be applicable to the appeals against the order of conviction and sentence for the offence under Section 138 of the Act of 1881, even in the cases where the criminal complaints for the offence under Section 138 of the Act of 1881 were filed prior to the amending Act No. 20/2018 i.e. prior to 01.09.2018.
It is not worthy to mention here that the Hon’ble Apex Court dealt with the applicability of Section 148 of the Act of 1881, even on the complaints filed prior to 01.09.2018 but the issue of applicability of Section 143A of the Act of 1881 was not under challenge in the case of Surinder Singh Deswal @ Col. S.S. Deswal [2019 (5) TMI 1626 - SUPREME COURT] before the Hon’ble Apex Court.
The issue of applicability of the new provision of Section 143A of the Act of 1881 on the complaints filed prior to 01.09.2018 came up before the Hon’ble Apex Court in the case of G.J. Raja vs. Tejraj Surana [2019 (8) TMI 91 - SUPREME COURT] and it was held by the Hon’ble Apex Court that prior to insertion of Section 143A of the Act of 1881, there was no provision under the Act of 1881 to direct the accused to pay interim compensation to the complainant prior to his conviction for the offence under Section 138 of the Act of 1881. It was held that provisions of Section 143A of the Act of 1881 would apply with its prospective effect and the provisions of Section 148 of the Act of 1881 would not apply with its prospective effect after conviction of the accused for the offence under Section 138 of the Act of 1881.
Conclusion - Section 143A of the Act of 1881 has its prospective effect and the same is applicable upon the complaints filed under Section 138 of the Act of 1881 after introduction/insertion of Section 143A of the Act of 1881 i.e. after 01.09.2018. This provision cannot have its retrospective effect upon the complaints filed prior to 01.09.2018.
Petition allowed.
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2025 (1) TMI 1429
Liability of petitioner, a charitable trust operating a marriage hall, to pay GST on the services rendered from July 2017 to January 2020 - HELD THAT:- The entire claim against the petitioner had arisen of its own failure to register itself under the GST Act as required under law. Only pursuant thereto, the petitioner had remitted the tax that he is liable to pay. Even though, such action is claimed to be a voluntary payment by the petitioner, it should be seen that the petitioner had attempted to evade payment of tax which is liable to be taxed and only pursuant to the inspection effected by the respondent, the petitioner had submitted himself for payment of tax and hence, the same cannot be said to be a voluntary payment and has been made only to wriggle out of the penal consequences. This conduct of the petitioner to evade tax will also fall under suppression and fraudulent activities envisaged under Section 74 of the GST Act. Hence, the contention that Section 74 cannot have been invoked against the petitioner cannot be countenanced.
A perusal of the orders in original, as affirmed by the Appellate Authority would clearly indicate that there is a deliberate attempt to evade payment of tax by not registering himself under the Act and also issuing receipts as donation to the Trust. Only after the inspection they have agreed to pay the tax by registering themselves. This conduct cannot be said to be a voluntary conduct. There has been contraventions of provisions of the GST Act for which the petitioner is liable to make good the non-payment and also suffer penal consequences for the same.
Both the Original Authority as well as the Appellate Authority have considered the case of the petitioner in its proper perspective and had applied the Provisions of law on the issue in its right perspective which do not call for any interference by this Court.
Petition dismissed.
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2025 (1) TMI 1428
Rejection of client’s prayer for analysis of the bricks produced - challenge to notice for personal hearing - principles of natural justice - HELD THAT:- Present situation on facts is that revenue omitted to obtain sample and is contending that petitioner has subsequently tendered a doctored sample. In the circumstances, revenue has no basis to proceed against petitioner. It follows that we must and do quash impugned order dated 3rd January, 2025, preceding show cause notice dated 29th September, 2023 and reminder dated 4th January, 2025.
Petition disposed off.
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2025 (1) TMI 1427
Detention of vehicle - absence of necessary documentation during the transportation of goods - initiation of proceedings under Section 130 of the CGST/SGST Act, 2017 - HELD THAT:- Since the learned counsel for the petitioner submitted that the notices issued under Section 130 of the CGST/ SGST Act, 2017 were received only after the date prescribed for hearing, in order to hasten the matter, this Court should be fixing a date on which the petitioner shall appear and adjudication proceedings be completed.
Hence there will be a direction to respondents 1 and 2 to complete the proceedings initiated under Section 130 of the CGST/ SGST Act, 2017 as expeditiously as possible. The petitioner shall appear before the first respondent on 29.01.2025 and before the 2nd respondent on 30.01.2025. On their appearance, the respondents 1 and 2 shall hear the respective matters and conclude the proceedings as expeditiously as possible, at any rate, within ten days from the said date of appearance.
Petition disposed off.
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2025 (1) TMI 1426
Challenge to SCN issued u/s 74 of the Central Goods and Services Tax Act, 2017 - it is conceded by the petitioner that the adjudication proceedings are going on and petitioner is being granted an opportunity of cross-examination - HELD THAT:- Since the adjudication proceedings have already commenced pursuant to the show cause notice and the reply notice, the latter of which was issued almost five months ago, there is no reason for this Court to direct the adjudication officer the manner in which the adjudication proceedings should be conducted. If at all the petitioner is aggrieved by the order that may be passed pursuant to Exhibit-P1, certainly the statute provides appropriate remedies.
As the proceedings have already commenced and the petitioner has been granted an opportunity for cross-examination as well, exercise of jurisdiction under Article 226 of the Constitution of India is not warranted in the instant case.
Petition dismissed.
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2025 (1) TMI 1425
Challenge to assessment order assessing the petitioner under Section 73(9) of the CGST Act apart from penalty and interest for the financial year 2018-19 - HELD THAT:- For the months of November 2018 upto March 2019, the petitioner ought to have, as per section 16(4), filed the returns by 20-10-2019. However petitioner filed the returns GSTR-3B only on 26.11.2019. Hence the claim for input tax credit availed by the petitioner was denied and the demand and penalty were imposed on them. After the introduction of Section 16(5), the time period for filing such returns has been extended upto 30.11.2021. If the return filed by the petitioner is taken into reckoning, there could be significant change in the appreciation of facts carried out in Ext.P1. In view of the above, the impugned order cannot be legally sustained, and it is required to be re-considered.
The impugned order Ext. P1 dated 18-04-2024 is set aside and the first respondent is directed to pass fresh orders, within a period of three months from the date of receipt of a certified copy of this judgment, after taking note of the provisions contained in Section 16(5) of the CGST/SGST Act and after affording an opportunity of hearing to the petitioner - petition allowed.
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2025 (1) TMI 1424
Challenge to assessment order - proceeding did not contain a DIN number - HELD THAT:- The question of the effect of non-inclusion of DIN number on proceedings, under the G.S.T. Act, came to be considered by the Hon’ble Supreme Court in the case of PRADEEP GOYAL VERSUS UNION OF INDIA & ORS. [2022 (8) TMI 216 - SUPREME COURT]. The Hon’ble Supreme Court, after noticing the provisions of the Act and the circular issued by the Central Board of Indirect Taxes and Customs (herein referred to as “C.B.I.C.”), had held that an order, which does not contain a DIN number would be non-est and invalid.
A Division Bench of this Court in the case of M/S. CLUSTER ENTERPRISES VERSUS THE DEPUTY ASSISTANT COMMISSIONER (ST) -2 ANDHRA PRADESH, THE ASSISTANT COMMISSIONER (ST) (FAC) , PRODDUTUR-II CIRCLE, THE COMMISSIONER OF STATE TAX, GUNTUR, STATE OF ANDHRA PRADESH. [2024 (7) TMI 1512 - ANDHRA PRADESH HIGH COURT] on the basis of the circular, dated 23.12.2019, bearing No. 128/47/2019-GST, issued by the C.B.I.C., had held that non-mention of a DIN number would mitigate against the validity of such proceedings.
Another Division Bench of this Court in the case of SAI MANIKANTA ELECTRICAL CONTRACTORS VERSUS THE DEPUTY COMMISSIONER, SPECIAL CIRCLE, VISAKHAPATNAM-II, THE DEPUTY COMMISSIONER (ST) , STATE OF ANDHRA PRADESH, THE CHAIRMAN, MANAGING DIRECTOR VISAKHAPATNAM, THE EXECUTIVE ENGINEER, OPERATION DIVISION VIZIANAGARAM. [2024 (6) TMI 1158 - ANDHRA PRADESH HIGH COURT] had also held that non-mention of a DIN number would require the order to be set aside.
Conclusion - The non-mention of a DIN number in the order, which was uploaded in the portal, requires the impugned order to be set aside.
This Writ Petition is disposed of setting aside the impugned proceedings in Form GST DRC-07, dated 26.06.2024, issued by the 1st respondent, with liberty to the 1st respondent to conduct fresh assessment, after giving notice to the petitioner and assigning a DIN number to the said order.
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2025 (1) TMI 1423
Maintainability of petition challenging the show cause notice issued under Section 74 of the Central Goods and Service Tax, 2017 - principle ground of challenge to the show cause notice is the fact that the amount that is sought to be taxed by the Respondents herein is the reward amount received by the Petitioner from its Group Company in Honkong in the year 2018-19 and 2019-20.
Maintainability of petition - HELD THAT:- There are no merit. Prima facie, after going through the Petition, it is found that the Maharashtra Authorities as well as the Karnataka Authorities are seeking to tax the Petitioner on the very same transaction. The Karnataka Authorities have in fact brought the entire amount of Rs. 6092 Crores to tax. The Maharashtra Authorities are now seeking to bring a part of that consideration (i.e. part of Rs. 6092 Crores) to tax within the state. Further, the Karnataka High Court has already granted a stay on the show cause notice issued by the Karnataka Authorities bringing the entire amount of Rs. 6092 Crores to tax. There is no merit in the Preliminary Objection and the above Writ Petition is certainly entertained. The preliminary objection is therefore rejected.
As far as Interim reliefs are concerned, considering that important legal issues are involved and the fact that Rs. 75 crores have already been deposited with the Maharashtra Authorities, the Respondents are restrained from taking any further steps or proceedings in pursuance and/or in furtherance of the show cause notice dated 21st July 2024 issued by Respondent No. 2.
Petition disposed off.
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2025 (1) TMI 1422
Challenge to communication refusing to grant an opportunity FOR cross examination of persons whose statements were allegedly utilised by the officer while issuing Ext.P1 SCN - HELD THAT:- In a recent judgment of this Court in NISHAD K.U., PROP. M/S. WOODTUNES ENTERPRISES VERSUS THE JOINT COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, CGST KOCHI COMMISSIONERATE KOCHI, THE ADDITIONAL DIRECTOR, DGGI, KOCHI ZONAL UNIT, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, UNION OF INDIA. [2025 (1) TMI 980 - KERALA HIGH COURT], it was observed that the basic requirement of the rule of law is to grant an opportunity of hearing to the persons against whom proceedings have been initiated. When statements of third parties are relied upon, it is one of the fundamental requirements that the party against whom such statements have been relied upon is granted an opportunity to question the person who gave such statements. This requirement flows from the opportunity of hearing required to be given as per Section 75(4) of the CGST Act. This Court had further observed that unilateral statements behind the back of a person cannot under any circumstances be justified under the rule of law, even if the proceedings are quasi judicial in nature.
In the instant case, it is evident that statements of two persons have been used by the respondent to issue show cause notice. Thus, when those statements were proposed to be used against the petitioner, it is a fundamental requirement to grant an opportunity for cross examination. The request of the petitioner as seen from Ext.P2 communication ought to have been allowed by the respondent. Therefore, declining to grant permission to cross-examine as per Ext.P3 is a contravention of the principles of natural justice which flows from the opportunity of hearing required to be granted under Section 75(4) of the CGST Act - Ext.P3 is to be set aside and the petitioner be granted an opportunity to cross-examine those persons whose statements are referred to in the show cause notice while continuing the proceedings initiated pursuant to Ext.P1.
Conclusion - The refusal to permit cross-examination contravened the principles of natural justice and the statutory requirement for a fair hearing. Therefore, the decision communicated in Ext.P3 was set aside, and the petitioner was granted the right to cross-examine the individuals whose statements were used in the show cause notice.
Petition allowed.
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2025 (1) TMI 1421
Challenge to order passed by the 5th respondent u/s 73 of the JGST Act, 2017 for the financial year 2019-20 - comparison of GSTR-3B and e-way bill - HELD THAT:- In the impugned order passed by the 5th respondent there is no reference to the contention raised by the petitioner at all and it is simply stated that the reply of the petitioner is not satisfactory.
Since the purpose of issuing ASMT-10 is to invite a reply and then consider the said reply. It is failed to understand why the 5th respondent did not aver to the contention raised in the reply filed by the petitioner and brushed it aside by simply saying it is not satisfactory.
The impugned order dt. 31.08.2024 is set aside, and the matter is remitted to the 5th respondent who shall furnish to the petitioner the basis of making the demand i.e. breakup as to how the difference amount was arrived at; such information be furnished within two weeks from today; petitioner is permitted to file a reply thereto within four weeks from the date of furnishing of the said information by the 5th respondent; personal hearing shall be afforded to the petitioner; and then a reasoned order be passed after considering the reply of the petitioner and the same shall be communicated to the petitioner.
Petition allowed by way of remand.
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2025 (1) TMI 1420
Violation of principles of natural justice - no opportunity to participate in the proceedings - challenge to adjudication order - HELD THAT:- Admittedly, the petitioner had no opportunity to participate in the proceedings as the petitioner was not served with show-cause notice since its registration was cancelled by order dated 02.06.2022. To provide an opportunity to the petitioner to submit reply and to participate in the proceedings, impugned orders are set aside and the matter is remitted back to the Adjudicating Authority-respondent No. 1. Since now the petitioner has received the show-cause notice, at the request of the petitioner, two weeks time is granted to submit reply to the show-cause notice from today.
Petition allowed by way of remand.
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2025 (1) TMI 1419
Violation of principles of natural justice - passing of Input Tax Credit on the strength of the fake invoices without supply of goods by a fictitious supplier - whether the petitioner should be granted an opportunity to contest the allegations of availing Input Tax Credit (ITC) based on fake invoices? - HELD THAT:- The impugned Order-in-Original 04/2022-GST dated 19.12.2022.
The petitioner shall deposit 25% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent, within a period of four weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2025 (1) TMI 1418
Seeking direction to respondent No.7 to dispose of the petitioner's letter filed by the petitioner seeking permission to file a revised GSTR-3B for the months from July 2017 to November 2017 - HELD THAT:- Chapter XX deals with transitional provisions to transition unutilized ITC. As per Section 140(1) of the CGST Act, 2017, a registered person, other than a person opting to pay tax under Section 10 shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit ( of eligible duties) carried forward in the return relating to the period ending with the day immediately preceding the appointed day i.e., 01.07.2017, furnished by him under the existing law ( within such time and ) in such manner as may be prescribed.
As per sub-section 2 to Section 140 of the Central Goods and Services Tax Act, 2017, a registered person, other than a person opting to pay tax under Section 10, shall be entitled to take, in his electronic credit ledger, credit of the unavailed CENVAT credit in respect of capital goods, not carried forward in a return, furnished under the existing law by him, for a period ending with the day immediately preceding the appointed day within such time and in such manner as may be prescribed.
Admittedly, the TRAN-01 facility was enabled on the GST portal only on 25.08.2017 which is almost 56 days after the implementation of GST w.e.f 01.07.2017. The petitioner had time upto 29.09.2017 to file TRAN-01 returns as per Rule 117 of the CGST Rules, 2017. Such time was extended upto to 31.10.2017 vide Order No.03/2017 – GST dated 21.09.2017. Thereafter, the said time was further extended upto 30.11.2017 vide Order No.07/2017-GST dated 28.10.2017. Once again, the time for filing TRAN-01 returns was further extended upto 27.12.2017 vide Order No.09/2017 – GST dated 15.11.2017.
There was a delay in availing the ITC and therefore, during the interregnum, part of the liability was discharged by cash by debiting the amounts to the electronic cash ledger. It is under these circumstances, the Honourable Supreme Court observed that non-performance or no-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. This is not the case here.
The petitioner cannot be burdened with accumulation of ITC as the petitioner is unable to liquidate the same as it is under inverted duty structure.
Conclusion - The technical glitches in the GST system should not penalize taxpayers who are otherwise compliant and entitled to utilize their ITC.
Petition allowed.
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