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Showing 121 to 140 of 1574 Records
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2024 (12) TMI 1454
Liability of appellant to pay service tax - Cleaning activity services provided to Indian Railway and other public sector undertaking - service tax is payable on the gross amount which includes the wages, etc., paid to the employees or not - secondary packaging activity is falling under the category of manufacturing or not - transportation of documents and goods and other liaison works - Manpower Recruitment or Supply agency service or not - eligibility for benefit of N/N. 30/2012-ST dated 20.06.2012 - Suppression of facts or not - Extended period of limitation.
Extended period of limitation - HELD THAT:- There is no allegation that the appellant is involved in suppression of facts in any manner with an intention to evade payment of service tax. Moreover, for the very same service, demand was made for different periods by issuing different show-cause notices by invoking extended period of limitation. Similar demand was made for the period from 2012-13 to 2015-16 and after considering the submissions, adjudication authority vide Order-in-Original No. 38/2021 dated 30.07.2021 dropped the demand. As held by Hon’ble Supreme Court in the matter of Pushpam Pharmaceuticals Company Vs. CCE, Bombay [1995 (3) TMI 100 - SUPREME COURT], wilful suppression does not mean any omission and that the act must be deliberate - thus, demand by invoking the extended period of limitation is unsustainable.
Whether the Appellant is liable to pay service tax on 'Cleaning activity' services provided to Indian Railway and other public sector undertaking? - HELD THAT:- The issue is no more res integra. As per the decision of the Hon’ble Madras High Court in the matter of M/s. Premier Garment Process Vs. CCE&ST, Chennai [2022 (10) TMI 881 - MADRAS HIGH COURT], the issue is settled and the activities of the Appellant are subject to service tax. Similar view was taken in the matter of HAKAMICHAND D & SONS VERSUS C.S.T. -SERVICE TAX - AHMEDABAD [2022 (5) TMI 481 - CESTAT AHMEDABAD]. Thus, even if the appellant failed to collect service tax, service tax liability for providing such services is well settled and the impugned order is sustainable. Hence, demand for the normal period against the show-cause notices issued to the appellant is confirmed - Since the appellant has not collected the same from the service recipient, Appellant is entitled for cum-tax benefit as held by adjudication authority as per Section 67(2) of the Finance Act, 1994.
Whether service tax is payable on the gross amount which includes the wages, etc., paid to the employees? - HELD THAT:- Though the Hon’ble High Court of Kerala in the matter of M/s. Security Agencies Association [2013 (2) TMI 356 - KERALA HIGH COURT] held that salary and statutory payment of security personal can be included as consideration, only by following the ratio of the judgment of the Hon’ble Supreme Court in the matter of Intercontinental consultants and Technocrats Pvt., Ltd., [2018 (3) TMI 357 - SUPREME COURT] and considering the nature of contract to find out whether appellant had received the consideration as pure agent, service tax can be quantified.
Whether providing secondary packaging activity is falling under the category of manufacturing? - HELD THAT:- Considering the definition of ‘Packaging Activity’ under Section 65(7B) and Clause (f) of Section 2 of the Central Excise Act, 1944, and considering the Circular dated 01.07.2002, such activity can be considered as manufacture, and it is beyond the scope of service tax. Hence, entire demand under the category of ‘Manpower Recruitment and Supply Agency' Services or under 'Packaging activity' services on the consideration received from M/s. HLL Life Care is set aside.
Whether transportation of documents and goods and other liaison works amounts to service under the category of 'Manpower Recruitment or Supply agency" services? - HELD THAT:- As regarding demand of service tax for providing transportation of document, the activity cannot be considered as 'Manpower, recruitment or Supply' services, since the consideration was determined on the basis of distance for carrying the document belonging to M/s. HLL Lifecare and it is falling under the category of ‘Transportation of Goods’. As per the relevant provisions of law, the service tax is payable by the service recipient under reverse charge.
Whether the appellant is eligible for the benefit of Notification No. 30/2012-ST dated 20.06.2012? - HELD THAT:- The appellant is eligible for the benefit of N/N. 30/2012-ST dated 20.06.2012 and cum-tax benefit as held by adjudication authority as per Section 67(2) of the Finance Act, 1994. Adjudication Authority is directed to complete the De-novo Adjudication within 3(three) months after the receipt of this order by extending a reasonable opportunity for personal hearing to the appellant.
Conclusion - The matter remanded to the Adjudication Authority to quantify the service tax liability against 'cleaning activity' services, ‘Manpower Recruitment or Supply Agency' Services for the normal period considering the date of issue of each show cause notice - As regards gross amount as consideration, the adjudication authority shall consider the contract against each service to ascertain whether the contract entered between Appellant and recipient of service are falling under the category of pure agent and if falling under the category of pure agent, said consideration should be excluded from the consideration - the appellant is eligible for the benefit of N/N. 30/2012-ST dated 20.06.2012 and cum-tax benefit as held by adjudication authority as per Section 67(2) of the Finance Act, 1994.
Appeal allowed in part.
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2024 (12) TMI 1453
Cenvat Credit of duty of inputs which were not used to manufacture a new excisable goods - correctness of disallowing the demand of the Department for Cenvat Credit duty wrongly availed of by the assessee Under Rule 14 of the Cenvat Credit Rules, 2004, on the ground that it is against the tenets of Equity and Justice - HELD THAT:- It appears that the process undertaken by the assessee was cutting/slitting of imported CRGO coils of width more than 600mm to the width of less than 600mm. It also emerges from the record that the petitioner has paid more excise duty while clearing the final products under Chapter Heading No. 7226 1100 than the amount of Cenvat Credit availed on the duty paid on import of CRGO coils under Chapter Heading N. 7225 1100.
This Court in case of Creative Enterprise [2008 (7) TMI 311 - GUJARAT HIGH COURT] has held that 'it is apparent that the respondent has been held to be a manufacturer as defined in section 2 (f) of the Central Excise Act, 1944. The appellate authority has taken into consideration the activities carried on by the respondent assessee. The Tribunal is justified in holding that if the activity of the respondent assessee does not amount to manufacture there can be no question of levy of duty, and if duty is levied, modvat credit cannot be denied by holding that there is no manufacture.'
Conclusion - The assessee is entitled to Cenvat Credit in view of the fact that the Revenue has accepted the excise duty paid by the assessee on the clearance of final products, irrespective of the fact, whether it amounts to manufacture or not.
The issues decided in favour of the assessee and against the Revenue - appeal dismissed.
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2024 (12) TMI 1452
Option to forego unconditional exemption to final products by virtue of N/Ns. 6/2002 dated 1.3.2002 and 6/2003 dated 1.3.2003 at the relevant time and pay duty at the Tariff rate and claim for Modvat/Cenvat credit on inputs used in the manufacture of final products - demand of Cenvat credit in a situation where the assessee has paid the duty on the final products and utilized the credit on inputs for payment of final products - amendment provided in Section 5A by inserting sub-section 1A as is clarificatory nature or in prospective.
Whether the appellant could have exercised option with regard to payment of duty or to avail the exemption Notification as per Section 5A of the Central Excise Act, 1944? - HELD THAT:- Once, the final product is exempted, if the appellant would not have paid any duty, there was no question of claiming any Modvat/Cenvat credit. However, in the facts of the case, the appellant has paid duty on the final products inspite of the exemption Notification being issued by the Central Government, the same was claimed as Modvat/Cenvat credit resulting into revenue neutralization - the appellant once having paid the duty is bound to get the Modvat/Cenvat credit but, for the insertion of Clause 1A by the Finance Act, 2005 which specifically declares that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. Thus, after the insertion the appellant-assessee was prohibited from payment of excise duty on the exempted excisable goods and therefore, there is no question of getting any Modvat/Cenvat credit in view of such prohibition.
Whether the amendment to Section 5A by inserting sub-section 1A is clarificatory or prospective in nature? - HELD THAT:- The insertion of Section 1A cannot be said to be clarificatory but, it is substantive in nature as it prohibits the assesseee from payment of duty on the exempted excisable goods. The Hon’ble Apex Court in case of Commissioner of Central Excise, Pune Versus Pudumjee Pulp & Paper Mills Ltd. [2006 (4) TMI 132 - SUPREME COURT] observed 'it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.'
The insertion of Clause 1A in Section 5A of the Central Excise Act is not clarificatory in nature but, it is substantive in nature and therefore, it would be optional for the appellant to avail the exemption of the excisable goods or to pay duty on such exempted excisable goods and therefore, the tribunal was not right in upholding the order passed by the respondents demanding for Cenvat credit where, the appellant had paid the duty on the final products and utilized the credit on inputs for payment of the final products.
Conclusion - It would be optional for the appellant to avail the exemption of the excisable goods or to pay duty on such exempted excisable goods and therefore, the tribunal was not right in upholding the order passed by the respondents demanding for Cenvat credit where, the appellant had paid the duty on the final products and utilized the credit on inputs for payment of the final products - the amendment provided in Section 5A by inserting Clause 1A is prospective in nature.
Appeal allowed.
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2024 (12) TMI 1451
Classification of goods - Siapton 10L and Isabion - classifiable as fertilizer under Central Excise Tariff Item No. 3101 00 99 of the first schedule of Central Excise Tariff Act, 1985 as declared by the appellant or Plant Growth Regulator falling under Central Excise Tariff Item No. 3808 93 40 as claimed by the Department? - HELD THAT:- Since the larger bench of this tribunal has finally decided the question in dispute in these appeals in [2024 (9) TMI 1655 - CESTAT AHMEDABAD (LB)], these appeals can be disposed of in accordance with the decision given by the larger bench. It was held by Larger Bench that '(i) A plant growth promoter cannot be equated with a plant growth regulator. A plant growth promoter only promotes the growth of the plant and does not inhibit it. On the other hand, a plant growth regulator inhibits, promotes or otherwise alters the physiological processes in a plant. The view to the contrary taken by the Division Bench in the referral order is not correct; and (ii) Siapton 10L and Isabion merit classification as fertilizers under ETI 3101 00 99 and not as a plant growth regulator under ETI 3808 93 40.'
Conclusion - The goods in question namely “Siapton 10L and Isabion” are correctly classifiable under Central Excise Tariff Item No. 31010099 and the same is not falling under Central Excise Tariff Item No. 38089340.
The impugned orders are set aside - Appeals are allowed
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2024 (12) TMI 1450
Levy of central excise duty - clinker used for captive consumption by availing exemption under N/N. 67/95-CE dated 16.3.1995 for manufacturing of cement that was cleared against International competitive bidding by claiming exemption under Sr No. 336 of N/N. 12/2012-CE dated 17.03.2012 - HELD THAT:- The identical issue in the appellant’s own case has been decided by this Tribunal consistently in two decision of this Tribunal reported as Shree Digvijay Cement Co Ltd [2018 (11) TMI 300 - CESTAT AHMEDABAD]. The only difference is that the said decisions were given with reference to the exemption Notification No. 06/2006-CE dated 01.03.2006 Sr. No. 19 which is pari materia to the exemption entry No. 336 Notification 12/2012-CE dated 17.03.2012. Therefore, the issue is no longer res-integra.
Conclusion - The appellant is entitled to the exemption under Notification No. 67/95-CE for clinker used in the manufacture of cement cleared against international competitive bidding.
The impugned order is set aside - appeal allowed.
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2024 (12) TMI 1449
Benefit of SSI exemption under N/N. 8/2003 dated 01.03.2003 - exceeding the threshold turnover Rs. 400 lakhs in the preceding Financial Year - whether the appellant is eligible for the benefit of N/Ns. 89/95-CE dated 18.05.2005 in respect of other products viz., Acid oil, Fatty acid, Waxes and Gums, which are generated during the course of manufacture of refined oil and if they were held eligible, whether they are eligible for the benefit of SSI N/N. 8/2003-CE dated 01.03.2003 as amended?
HELD THAT:- The issue of products viz., acid oil, fatty acid, gums and waxes, which are generated during the process of refining of crude edible oil to produce refined edible oil has been the subject matter in the case of M/s. Ricela Health Foods [2018 (2) TMI 1395 - CESTAT NEW DELHI], Vinayak Agrotech [2017 (11) TMI 598 - CESTAT NEW DELHI], Arihant Solvex [2019 (1) TMI 235 - CESTAT NEW DELHI] and it has been decided that these products can be treated as ‘waste’ during the manufacture of refined edible oil, which is an exempt product and they are entitled for the benefit of exemption Notification No. 89/95-CE dated 18.05.1995.
Further, it is found that this Tribunal in the case of M/s. Habib Agro Industries and in the case of the appellant’s own case [2023 (8) TMI 654 - CESTAT BANGALORE] has decided that the Acid oil, Fatty acid, Gums and Waxes generated during the process of refining of oil are eligible for the benefit of Notification 89/95-CE dated 18.05.1995, considering them as waste.
Conclusion - By-products generated as incidental to the manufacture of exempt goods can qualify as waste - appellant's eligibility for the exemption under Notification No. 89/95-CE affirmed - SSI exemption denied due to exceeding the turnover threshold.
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2024 (12) TMI 1448
Interest on delayed refunds - to be calculated from the date of deposit or from the date of filing the refund application - applicable rate of interest on the delayed refund - HELD THAT:- In the present case impugned order clearly observes that the amount that was deposited by the appellant at the time of visit of officers to their premises was appropriated by the original authority while adjudicating the case of shortages against the appellant. The amount so appropriated acquired the character of duty, the moment it is appropriated against the demand made.
In case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT], Hon’ble Supreme Court has observed 'Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court.'
Thus all the refunds which are filed under the Central Excise Act, 1944 in terms of the decision of hon’ble Supreme Court in case of Mafatalal Industries and the above provisions whether of the duty, interest or any deposit made are governed by the provision of Section 11B of the Act. The interest thus gets governed by the provisions of Section 11BB as has been held by Hon’ble Supreme Court in case of Ranbaxy, referred in the impugned order. There has been exception carved out only for determination of relevant date for determining the period for which interest is to be paid in respect of deposit made as per Section 35F for filing the appeal before an appellate authority. Section 35FF provides that interest would be paid from the date of deposit made under Section 35F.
Conclusion - Interest would be paid from the date of deposit made.
There are no merits in the appeal - appeal dismissed.
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2024 (12) TMI 1447
Refusal of doctrine of mutuality on the ground that majority of the members of the different categories other than the permanent members were persons with no voting right or any right to participate in the affairs of the management of the club - HELD THAT:- The order of the Tribunal confirming the assessment made and the law on the point, as prima facie occurs, it is opined that the following questions of law arise: -
(i) Whether the Tribunal was correct in having declined the application of ‘doctrine of mutuality’ on the transactions entered into by the appellant?
(ii) Whether the appreciation of facts by the Tribunal was correct and was it not perverse since the findings were on mere surmises and conjectures?
(iii) Whether the Tribunal was correct in having determined a proportion of members to decline application of the ‘doctrine of mutuality’ with respect to certain transactions, on the finding that certain category of members did not have any control over the affairs of the club and thus could not be included within the ambit of ‘doctrine of mutuality’?
The Tribunal is directed to state the case and make a reference to this Court on the above noted questions of law arising from the order of the Tribunal under Section 48 (3) of the Bihar Finance Act.
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2024 (12) TMI 1446
Dishonour of Cheque - mandatory presumption as provided under Section 139 of the Negotiable Instruments Act drawn in favour of the complainant - whether the accused has succeeded in rebutting the presumption drawn in favour of the complainant? - HELD THAT:- A presumption is an inference to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. Analysing the terms “proved” and “disproved” as provided in Section 3 of the Evidence Act, a court shall presume a Negotiable Instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. The necessary conclusion is that for rebutting such a presumption, what is needed is to raise a probable defence. All the circumstances, including the evidence adduced on behalf of the complainant, could be relied upon.
The rebuttal does not have to be conclusively established, but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of responsibility being that of the prudent man.
The admitted case of the complainant is that his wife and the accused had a financial transaction in respect of an immovable property. But, his wife came to the box and denied the entire transactions. She even denied to have acquaintance with the accused - The accused has brought in throwing circumstances that make the case of the complainant suspicious. Unless the holder of the instrument removes such suspicion by tendering a satisfactory explanation, no conviction is legally permissible by invoking the statutory presumption. The accused has successfully discharged his initial onus of proof showing that the existence of consideration was doubtful. The onus now shifted to the complainant who is obliged to prove it as a matter of fact. In the present case, the complainant failed to prove the same.
The accused having been acquitted by the trail Court is entitled to the presumption of innocence. The presumption of innocence is further reaffirmed and strengthened by the trial Court. If reasonable conclusions are possible based on the evidence on record, the appellate court should not disturb the finding of fact recorded by the trial Court.
In the instant case, the complainant failed to give a satisfactory explanation for the suspicious circumstances brought on record regarding the consideration of Ext.P1 cheque. The view taken by the trial Court cannot be held to be illegal, improper or contrary to law. Therefore, the reasoning recorded by the trial Court for acquitting the accused was possible and plausible and no interference is required.
Conclusion - The accused having been acquitted by the trail Court is entitled to the presumption of innocence. The presumption of innocence is further reaffirmed and strengthened by the trial Court. The complainant failed to give a satisfactory explanation for the suspicious circumstances brought on record regarding the consideration of Ext.P1 cheque.
Appeal dismissed.
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2024 (12) TMI 1445
Seeking appointment of a sole Arbitrator for resolution of its claims qua non-applicant Company - resistance for appointment of an Arbitrator in respect of the claim put forth by applicant-Company, has been made fundamentally in view of certain subsequent events, transpired after filing of the instant arbitration application - Time limitation.
Seeking appointment of a sole Arbitrator for resolution of its claims qua non-applicant Company - HELD THAT:- This Court finds that as far as execution of purchase agreement dated 28.07.2014, whereunder the copper was agreed to be supplied by non-applicant-Company to the applicant-company and supply of copper in pursuance thereof, is an undisputed fact. The arbitration agreement, contained in such purchase agreement in Clause 16(B) is also not in dispute.
A seven judges’ Bench of the Hon’ble Supreme Court in Re: Interplay Between Arbitration Agreements Under The Arbitration and Conciliation Act 1996 And the Indian Stamp Act, 1989 [2023 (12) TMI 897 - SUPREME COURT (LB)], has observed in Para Nos.152 & 154 that the omission of Section 11(6A), through Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of the 2019), has not been notified in the official gazette and therefore, the said provision continues to remain in full force.
It is hereby observed that undeniably the dispute between the parties has not been resolved amicably and the arbitration clause contained in Clause 16(B) of the purchase agreement comes in play. Before filing the arbitration application, the applicant had issued legal notices dated 08.12.2021 and 12.01.2022, of which though, reply of one notice dated 12.01.2022 has been filed by the non-applicant Company on 03.09.2022, but admittedly the Arbitrator has not been appointed.
Time limitation - HELD THAT:- The arbitration application is well within limitation.
Conclusion - The existence of an arbitration agreement between the parties is confirmed and a sole arbitrator is appoined. The arbitration application is well within limitation.
The Arbitration Application stands disposed of accordingly.
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2024 (12) TMI 1444
Eligibility for appointment as Technical Member (State) in the State Bench - appointment of officers of the Commercial Tax Department of Himachal Pradesh with 25 years of service as Gazetted Officers - whether notification dated 19.10.2024 and the corrigendum dated 21.11.2024, comply with the qualifications prescribed under Section 110 of the Central Goods and Services Tax (CGST) Act, 2017?
HELD THAT:- Prima-facie it appears that the proposal of respondent No. 1 seeking relaxation under proviso to Clause (d) of Subsection (1) of Section 110 of CGST Act was based upon incorrect facts, which led to the recommendations of the GST Council making an officer of Commercial Tax Department of Himachal Pradesh with minimum 25 years of service in the Government as Gazetted Officer eligible for appointment as Technical Member (State) in the State Bench. Since primafacie proposal of the State Government appears to be based upon incorrect factual position that resulted in recommendations of the GST Council relaxing the provisions of the eligibility criteria in a particular manner, there exist a prime-facie case in favour of the petitioner. Hence, it is ordered that the respondents though may scrutinize the applications received by them for the post of Technical Member (State) in GST Appellate Tribunal (State Bench in Himachal Pradesh) but no final decision/action shall be taken thereupon till further orders.
Conclusion - While applications for the post may be scrutinized, no final decisions should be made until further orders, indicating the need for further examination of the issues raised.
List on 30.12.2024.
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2024 (12) TMI 1443
Challenge to assessment order - the proceedings did not contain a DIN number - HELD THAT:- 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.
Petition allowed.
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2024 (12) TMI 1442
Challenge to order for recovery of interest and penalty - HELD THAT:- Sequence of events regarding petitioner’s hospitalization, issuance of demand-cum-show-cause notice resulting in the order passed, move to interfere. This is only because the petitioner is required to have one last opportunity of representing his case before the authority. If he again suffers ill health requiring hospitalization or otherwise, which will be unfortunate but, same cannot be agitated any more.
Petition disposed off.
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2024 (12) TMI 1441
Jurisdiction - power of Tax Authorities to recover the dues of the Society from members - Society registered under the Andhra Pradesh Societies Registration Act, 2001, qualifies as an "Association of Persons" under Section 94 of the CGST/SGST Act or not.
Whether Section 94 of the CGST Act empowers the Tax Authorities to recover the dues of the Society, registered under the Act of 2001, from any of its members? - HELD THAT:- Section 94 of the CGST Act empowers the Tax Authorities to recover the dues of the Society, registered under the Act of 2001, from any of its members - This provision would be applicable where the taxable person is a firm or association of persons or a Hindu Undivided Family. Further, this entity should have discontinued business. It appears that the Society had discontinued business and the second condition would be applicable. However, the question of whether the first condition is applicable or not requires to be looked into.
Whether a Society registered under the Andhra Pradesh Societies Registration Act, 2001, qualifies as an "Association of Persons" under Section 94 of the CGST/SGST Act? - HELD THAT:- The conditions required for creation of a Society under the Act of 2001 are in pari materia similar to the conditions set out in the Act of 1860. Further Sub-section 2 and Sub-section 3 stipulate that a Society in which un-incorporated association of individuals is a member or a firm is a member, is not liable to be registered under the Act of 2001. This would clearly indicate that a Society registered under the Act of 2001 meets all the requirements of a Society, as defined under the Act of 1860 - the Society would not fall within the purview of the term “Association of Persons” set out under Section 94 (1) of the CGST/SGST Act - no proceedings can be initiated against the petitioner, who was a member/Secretary of the Public Association, registered under the Act of 2001.
Conclusion - The Society would not fall within the purview of the term 'Association of Persons' set out under Section 94 (1) of the CGST/SGST Act. A Society registered under the Andhra Pradesh Societies Registration Act, 2001, is distinct from an "Association of Persons" as defined in the CGST/SGST Act, and members of such a Society cannot be held liable for the Society's tax dues under Section 94.
Form GST DRC-16, dated 29.07.2022, the communication of the 2nd respondent to the 3rd respondent, dated 03.11.2022, requesting the 3rd respondent not to permit alienation of the properties of the petitioner and the endorsment, dated 27.06.2023, issued by the 2nd respondent for taking action for recovery of the dues of the Society from the petitioner set aside - Petition allowed.
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2024 (12) TMI 1440
Availment of ITC - barred by limitation in terms of Section 16(4) of the CGST Act - HELD THAT:- In the light of subsequent developments took place, whereby, Section 16 of the CGST Act was amended and sub-section (5) was inserted to Section 16, which came into force with retrospective effect from 01.07.2017, the petitioners are entitled to avail ITC in respect of GSTR-3B filed in respect of financial years 2017-18, 2018-19, 2019-20 and 2020-21 as the case may be, on or before 30.11.2021 and all the orders to the contrary are quashed and set aside.
Petitioners are at liberty to avail all the benefits as available to them under the Circular No. 237/31/2024-GST dated 15th October, 2024.
Petition disposed off.
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2024 (12) TMI 1439
Short payment of tax liabilities - discrepancy between the GSTR-1 and GSTR-3B - Invocation of Section 73 of the CGST Act, 2017 - HELD THAT:- Section 73 of the CGST Act, 2017, allows for the recovery of tax not paid or short paid due to reasons other than fraud or willful misstatement.
The conclusions as recorded cannot sustain and which ex facie show that while referring to Section 9 of the Central Goods and Services Tax Act, 2017 Act, the liability which is created ultimately is with reference to Integrated Goods and Services Tax IGST and cess leviable.
The impugned order dated 30 August 2024 is stayed - Let the writ petition be listed on 13.01.2025.
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2024 (12) TMI 1438
Challenge to impugned order relating to the assessment year 2019-20 on the premise that there is violation of principles of natural justice - alleged mismatch between GSTR-2A and GSTR-3B and GSTR-2B and GSTR3B - HELD THAT:- The impugned order dated 11.07.2023 is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material.
Petition disposed off.
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2024 (12) TMI 1437
Seeking grant of regular bail - offence punishable under Sections 132(1)(b) and 132(1)(c) of CGGST Act, 2017 - creating fake firms and issuing fraudulent invoices under Section 132 of the CGST Act - HELD THAT:- Considering the facts and circumstances of the case, the nature of the allegation levelled against the applicant, the fact that the GST Department has failed to investigate or seize the accounts of the actual beneficiaries in the down-chain, while the applicant's bank accounts were seized even before any summons were issued, additionally, the same tax liabilities are being sought from both the applicants and other entities, which is legally untenable under the CGGST Act, Section 132(c), as no end users or beneficiaries have been implicated, showing a clear failure of the investigative process, the applicant is languishing in jail since 22.06.2024 and the charge-sheet/complaint has been filed, the conclusion of the trial is likely to take some time, hence, without commenting anything on merits of the case, it is required to grant regular bail to the applicant.
The applicant is granted bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (12) TMI 1436
Challenge to order passed u/s 73(2) of the Finance Act, 1994 read with Section 174(2) of CGST Act, 2017 - recovery of arrears - HELD THAT:- Considering the prima facie case, however, at the same time taking note of the fact that already an adjudication order dated 27th March, 2024 has been passed, the petitioner at this stage should be directed to secure at least a portion of the demand raised by the respondents.
The petitioner is directed to deposit a sum of Rs. 50,000/- with the learned Registrar General, Appellate Side, High Court, Calcutta within 8th October 2024.
Let affidavit-in-opposition to the present writ petition be filed within a period of 6 weeks after the annual vacation. Reply, if any, thereto, be filed within 4 weeks thereafter.
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2024 (12) TMI 1435
Cancellation of registration of the petitioner - non-filing of returns for a continuous period of six months - HELD THAT:- The registration of the petitioner had been cancelled on the ground of non-filing of returns. It is not the case of the respondents that the petitioner had been adopting dubious process to evade tax. Taking note of the fact that the suspension/revocation of license would be counterproductive and works against the interest of the revenue since, the petitioner in such a case would not be able to carry on his business in the sense that no invoice can be raised by the petitioner and ultimately would impact recovery of tax, the respondents should take a pragmatic view in the matter and permit the petitioner to carry on his business.
It is proposed to set aside the order dated 2nd March, 2023 cancelling the registration of the petitioner subject to the condition that the petitioner files his returns for the entire period of default and pays requisite amount of tax and interest and fine and penalty.
Petition disposed off.
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9911796707
