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Showing 141 to 160 of 1484 Records
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2025 (3) TMI 1344
Eligibility of refund of service tax paid on a specified services i.e. GTA, used for export of goods under N/N. 41/2012-S.T. dated 29.06.2012 - refund is denied in the light of the provisions of para 3(b) of the N/N. 41/2012-ST dated 29.06.2012 - HELD THAT:- The impugned order passed by the learned Commissioner (Appeals) dated 25.04.2017 is based on the correct appreciation of the Notification No.41/2012-ST dated 29.06.2012 and it is also based on the law laid down by the CESTAT-Delhi in M/s. Nahar Industrial Enterprises Ltd [2014 (12) TMI 205 - CESTAT NEW DELHI]. Therefore, there is no reason to interfere in the impugned order.
In M/s. Nahar Industrial Enterprises Ltd it has been observed by the CESTAT- Delhi that it agrees with the findings of the Commissioner (Appeals) who has observed in the impugned order that condition 2(a) of the said Notification No.17/2009-ST stipulates that the person liable to pay service tax under Section 68 of the said Act on the specified service provided to the exporter and used for export of the said goods shall not be eligible to claim exemption for the specified service. As respondents were liable to pay the said amount of service tax under Section 68 (2) of the Act and they accordingly discharged the said liability, they shall not be eligible to claim exemption for specified services in view of the condition 2(a) of the said Notification. Thus, there is strength in the contention of the department that the said amount of refund claim is not as per proviso (c) to para 1 and condition 2 (a) of the N/N.17/2009-ST dated 07.07.2009.
Conclusion - The appellants are not entitled to a rebate of service tax under Notification No.41/2012-ST.
Appeal dismissed.
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2025 (3) TMI 1343
Refund of Education Cess & Secondary High Education Cess - rejection of refund of Education Cess & Secondary High Education Cess on the basis of the Hon’ble Apex Court Judgments in the case of Unicorn Industries Vs. UOI [2019 (12) TMI 286 - SUPREME COURT] - HELD THAT:- This issue has already been settled by this Bench in the appellant’s own case involving identical issue M/S INSECTICIDES INDIA LTD VERSUS COMMISSIONER OF CG & ST, JAMMU [2021 (11) TMI 784 - CESTAT CHANDIGARH] wherein it has been held that the orders of the Commissioner (Appeals) is bad in law and the Tribunal has also directed the adjudicating authority to implement the orders passed by the Tribunal in the earlier round of litigation.
The Tribunal in the appellant’s own case M/S INSECTICIDES INDIA LTD VERSUS COMMISSIONER OF CG & ST, JAMMU [2021 (11) TMI 784 - CESTAT CHANDIGARH] have allowed the claim of the appellant by relying upon the judgments of the Hon’ble Supreme Court in the case of SRD Nutrients Pvt. Ltd [2017 (11) TMI 655 - SUPREME COURT].
Further, it is found that the appellant was also a party before the Hon’ble Apex Court in the case of SRD Nutrients Pvt. Ltd. The review filed by the Department in SRD Nutrients Pvt Ltd. was also dismissed by the Hon’ble Supreme Court. Further, it is found that before the Commissioner (Appeals) appellant has challenged only part of the adjudication order withholding/rejecting part of the refund claim whereas the Commissioner (Appeals) not only rejected the pending refund claim itself rather ordered for recovery of amount of the already sanctioned claims without any authority of law.
Conclusion - The appellants are entitled to a refund of E.Cess and SHE Cess.
Appeal allowed.
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2025 (3) TMI 1342
Exemption from service tax - providing services of construction of stadium at Sector-21, Noida against contract awarded by New Okhla Industrial Development Authority - demand made on the basis of receipts shown in 26AS statement - demand of interest and penalty.
Demand of service tax made on the basis of receipts shown in 26AS statement - period 2015-16 & 2016-17 - HELD THAT:- Construction of original work which is for the purpose of non-commercial activities for government or local or governmental authority was exempt from service tax. Governmental authority was defined as an authority established by an Act of the Parliament or a State legislature and was hundred percent in the control of Government. It was also provided that such body must perform works as mentioned in Article 243W of the Constitution.
Noida Authority is set up by the U.P. Government in exercise of powers conferred under Section 3 of the Uttar Pradesh Industrial Area Development Act, 1976 passed by U. P. Legislative Assembly. As per Section 3(3) of the UPIAD Act, the management including chief executive will be appointed by the U.P. Government. It shows that hundred percent control of the body established under the UPIAD Act will be by the U.P. Government. As per Section 6 (e) of UPIAD Act, the function of the Authority set up under the said Act includes to provide amenities and municipal services. The above facts confirm that Noida Authority falls within ambit of governmental Authority as defined under clause 2(s) of Notification No.25/12-ST dated 20.06.2012.
Whether a sports stadium is for non-commercial activities or not? - HELD THAT:- A stadium is a place or venue for (mostly) outdoor sports, concerts, or other events and consists of a field or stage completely surrounded by a tiered structure designed to allow spectators to stand or sit and view the event. It is also used for morning walks. Basically, construction of sports stadium is for boosting sports. Its purpose is not for any commercial activities. The above finding also finds support from the decision of the Tribunal in the case of B.G. Shirke Construction Technology Pvt. Ltd. [2013 (2) TMI 584 - CESTAT MUMBAI] held 'The Sports Stadia is used for public purpose. Merely because some amount is charged for using the facility, it cannot become a commercial or industrial construction. Even in a Children Park, entry fee is levied for maintenance of the Park. Merely because some amount is charged for using the Park, it cannot be said that it is a commercial or industrial construction. Adopting the same logic, the Sports Stadia in the present case is also a non-commercial construction for use by the public. Therefore, we are prima facie of the view that the Sports Stadium constructed for conducting Commonwealth Games, is a non-commercial construction.' - thus, sport stadium is predominantly used for purposes other than commercial.
It is explicit from the findings that all terms and conditions specified under Notification No.25/12-ST dated 20.06.2012 as amended by N/N. 09/16-ST dated 01.03.2016 were fulfilled in the case at hand. Hence, services rendered by the Appellant were exempted from service Tax.
Demand of interest and penalty - HELD THAT:- When the demand of tax itself is not sustainable, the demand of interest and imposition of penalty does not survive.
Conclusion - The services provided to a governmental authority for non-commercial purposes are exempt from service tax, even if some fees are charged for maintenance or use.
Appeal allowed.
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2025 (3) TMI 1341
Levy of penalty on Managing Director u/r 26 of Central Excise Rule, 2002 for the omission on the part of the company in mis-declaring the goods manufactured by them - HELD THAT:- It is found that other than being the Managing Director of M/s. Ruchi Soya Industries Ltd., there is no direct involvement of the appellant and there is no allegation regarding his personal involvement. The penalty was imposed only on the ground that the Managing Director is ultimately responsible for all the affairs of the company and hence, he is also liable to be penalized.
There are strong force in the contention raised by the appellant that there is no finding showing involvement of the appellant in mis-declaring the goods. Moreover, the issue is on classification of goods and as submitted by appellant during the investigation, the aspect of payment of central excise duty, classification etc., cannot be held as the personal responsibility and being the Managing Director, it cannot be alleged that he is personally involved without substantial evidence regarding his active involvement in the alleged suppression of facts.
Conclusion - The imposition of a penalty on the appellant under Rule 26 of the Central Excise Rules, 2002, was unsustainable due to the lack of evidence of personal involvement.
Appeal allowed.
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2025 (3) TMI 1340
Reversal of cenvat credit on inputs and capital goods such as explosives, detonators, lubricants, components, items, etc. provided on non-chargeable basis to contractors for mine development work/or production in terms of Rule 3(5) of Cenvat Credit Rules, 2004 - extended period of limitation - interest - penalty - HELD THAT:- Consistent views have been taken time and again not only by the Tribunal and the High Courts but also by the Apex Court that the judicial discipline and proprietary demands that the Adjudicating Authority or the Appellate Authority should follow the binding decisions of the Tribunal.
The Apex Court in Union of India Vs. Kamlakshi Finance Corporation Ltd. [1991 (9) TMI 72 - SUPREME COURT] has categorically held that the order of the Tribunal is binding upon the Assistant Collector and the Appellate Collectors, who function under the jurisdiction of the Tribunal and they should be followed unreservedly by the subordinate authorities. It was further held that mere fact that the order of the Appellate Authority is not acceptable to the Department in itself is an objectionable phrase and is no ground for not following it unless the operation of the said order has been suspended by a competent court. The logic in holding so has been stated that if this rule is not followed, there will be undue harassment to the assesses and chaos in administration of the tax laws. The present case clearly reveals this, though not only one but four orders of the Tribunal and specially in the case of the appellant are on record on the same issue but the Authorities below have chosen not to follow.
There is no sale and no removal of inputs and capital goods when the assessee supplied the same to the contractor, which was used for mine development activity and, therefore, the provisions of Rule 3(5) are not applicable. In the circumstances, the appellant was not required to reverse the credit availed in respect of the impugned items.
Extended period of limitation - interest - penalty - HELD THAT:- Merely providing the inputs and capital goods to the contractor for use within the captive mines for mine development works of the appellant does not amount to removal and thereby, do not attract the provisions of Rule 3(5) of CCR. Since the issue has been decided on merits in favour of the appellant, the question of extended period of limitation, levy of interest and penalty does not survive.
Conclusion - The appellant is not liable to reverse the CENVAT credit on the inputs and capital goods provided to contractors for mine development activities.
Appeal allowed.
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2025 (3) TMI 1339
Dishonour of Cheque - presumption under Section 139 of the NI Act in favor of the cheque holder could be rebutted at the stage of issuing process by the Judicial Magistrate First Class (JMFC) or not - HELD THAT:- In the present case, a statutory notice under Section 138 of the NI Act was issued by the advocate for the respondent on 11th November 2016 to the appellant. The notice proceeds on the footing that the respondent, a Co-operative Credit Society, is providing financial assistance to its members and is also carrying on banking business. The allegation in the notice served to the appellant is that the appellant was a member of the credit society and had taken an overdraft facility from the respondent in the sum of Rs.11,97,000/-. Paragraph 1 of the notice specifically relies upon the fact that the appellant has executed necessary documents and that the appellant has agreed and acknowledged to make repayment of the amount advanced with interest. Thereafter, the notice proceeds to describe how the cheque issued by the appellant in the sum of Rs.27,27,460/- was returned unpaid.
It is pertinent to note that in the notice under Section 138 of the NI Act, in paragraph 1, the respondent specifically relied upon documents executed by the appellant and the acknowledgment of the loan made by the appellant. By a reply dated 28th November 2016, the appellant informed the respondent that by filing a written application, the appellant had demanded certain documents, which had not been provided. What is pertinent to note is that the respondent does not deny the receipt of the reply dated 28th November 2016. No reply was sent by the respondent pointing out that the documents were supplied. Even in the letter dated 13th December 2016, the appellant made the same grievance regarding the non-supply of the documents relied upon in the demand notice. Before filing the complaint, the respondent failed to respond to the said letter.
The fact remains that in the complaint, the respondent has suppressed the reply dated 28th November 2016 and the letter dated 13th December 2016 sent by the appellant’s advocate. These two documents have also been suppressed in the statement on oath. The respondent made out a false case that the appellant did not reply to the demand notice. Moreover, the case that the documents as demanded were supplied is not pleaded in the complaint and statement under Section 200 of CrPC.
While filing a complaint under Section 200 of CrPC and recording his statement on oath in support of the complaint, as the complainant suppresses material facts and documents, he cannot be allowed to set criminal law in motion based on the complaint. Setting criminal law in motion by suppressing material facts and documents is nothing but an abuse of the process of law.
Conclusion - The complaint filed under Section 138 of the NI Act is held invalid due to the suppression of material facts and the non-supply of requested documents.
The impugned order of the High Court is set aside - Appeal allowed.
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2025 (3) TMI 1338
Dismissal of petition on the ground that the appellants/petitioners has got the statutory remedy available to them by way of invoking Section 18 of the SARFAESI Act and filing an appeal before the Debt Recovery Appellate Tribunal - HELD THAT:- It is true that there is no bar for this Court to entertain a writ petition, however, in case of availability of efficacious and alternative statutory remedy, this Court can interfere in a petition filed under Article 226 of the Constitution of India in very rare cases. The SARFAESI Act is a code, scheme of which provides for various statutory remedies available to the parties at various stages of the proceedings drawn and conducted under the said Act.
Merely, because the appellants/petitioners will be required to deposit certain amount to avail the remedy of the appeal under Section 18 of the SARFAESI Act, it cannot be said that this Court would necessarily invoke the jurisdiction under Article 226 of the Constitution of India.
Reference made to a judgment of Hon’ble Supreme Court in the case of PHR Invent Educational Society v. UCO Bank and others [2024 (4) TMI 466 - SUPREME COURT (LB)], wherein it has clearly been held that the High Court would ordinarily not entertain a petition under Article 226 of the Constitution of India, if an effective remedy is available to the aggrieved person.
Conclusion - The requirement to make a deposit under Section 18 of the SARFAESI Act does not justify bypassing the statutory remedy in favor of a writ petition. The principle of exhausting alternative remedies is upheld.
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2025 (3) TMI 1337
Revision u/s 263 - case of the Assessee was selected for ‘complete scrutiny’ wherein 14 issues were identified, however, the A.O. examined only three issues thus, AO has not applied his mind on all the 14 issues
Claim of profit-linked deduction made u/s 80IA - HELD THAT:-Considering the documents produced by the Assessee, transfer pricing adjustment was also made by the TPO. Consequently, the assessment order was also passed making the very same addition. Thus, the TPO not only examined the issues, but also made substantial adjustment in TPO order. Thus, it is found that the observation of the PCIT that ‘the separate books of accounts and balance sheets of eligible units have not been produced by the Assessee either before the AO or before the PCIT’ is factually incorrect. It is found that all the requisite details were filed by the Assessee before the AO, TPO as well as before the PCIT which could be corroborated from the submission filed by the Assessee, wherein the Assessee has produced all the details pertaining to such claim i.e. Form No. 10CCBs separate books of accounts, Form 3CEB, etc.
Deduction u/s 35(2AB) of the Act for Research and Development Expenditure - It is found that A.O. has made exhaustive questionnaires on the issue of deduction u/s 35(2AB) of the Act for research and development expenditure and asked for all the relevant form and agreements, copy of approval from DSIR, Copy of Form 3CM, Form 3CK and 3CL, which were duly submitted to the A.O. during the assessment proceedings and the AO has verified all the documents and submission made by the Assessee.
Difference between custom duty paid as per ITR and as per Import Export Data - It is found that it is not a case wherein the AO failed to conduct enquiry rather it is the case wherein the AO has conducted an elaborate enquiry and adopted one of the two views which was plausible view. The question would be as to whether in such circumstances the power u/s 263 of the Act would be invoked or not. The above said question is no longer res-integra and the said issue is well settled in several decisions.
The proceedings u/s 263 of the Act cannot be for the purpose of making fishing/roving enquiries w.r.t. variety of issues only with an objective of substituting his views with that of the AO. As could be seen from the various show caused notices issued by the Ld. PCIT, the PCIT is asking the Assessee to substantiate its claim by submitting the various information and documentary evidence. Apart from the same, PCIT has dropped the revisionary proceedings on almost all issues except 3 issues, which shows that proceedings were initiated purely on guess work, surmises and with an intention to draw further information from the Assessee on the issues already settled in the assessment devoid of any basis / reason /information already being considered before issuance of SCN u/s 263 of the Act.
The terms and tenure of the initial SCN dated 04.12.2023 does not indicates any concerted efforts on the part of PCIT for examination of assessment records and then forming of any reasonable belief/opinion whereupon the Assessee’s assessment should be considered for revision. Such fishing and roving enquires cannot be permitted while exercising the power conferred u/s 263 of the Act as held by various judicial pronouncements.
Appeal of the Assessee is allowed.
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2025 (3) TMI 1336
Challenge to assessment order - the proceeding does not contain the signature of the assessing officer and also DIN number, on the impugned assessment order - HELD THAT:- The effect of the absence of the signature, on an assessment order was earlier considered by this Court, in the case of A.V. Bhanoji Row Vs. The Assistant Commissioner (ST), [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT]. A Division Bench of this Court, had held that the signature, on the assessment order, cannot be dispensed with and that the provisions of Sections-160 & 169 of the Central Goods and Service Tax Act, 2017, would not rectify such a defect.
A Division Bench of this Court in the case of M/s. Cluster Enterprises Vs. The Deputy Assistant Commissioner (ST)-2, Kadapa [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.
In view of the aforesaid judgments and the circular issued by the C.B.I.C., the non-mention of a DIN number and absence of the signature of the assessing officer, in the impugned assessment order would have to be set aside.
Petition disposed off.
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2025 (3) TMI 1335
Cancellation of GST Registration under the Central Goods and Services Tax - it is contended that manner in which the GST Registration has been cancelled is arbitrary and the impugned Order of cancellation has been passed without due application of mind - violation of principles of natural justice - HELD THAT:- On perusal of the impugned Order, it is evidently clear that the impugned Order is not in conformity with the procedure prescribed in FORM GST REG-19. A speaking order is one which expressly states the reasons for the decision. In other words, a speaking order speaks for itself by assigning the reasons behind the conclusion. If an order is passed without giving a reason by the concerned authority, then the order is a non-speaking one. Non-speaking order is one which does not provide a clear reason for its decision. The fact that the petitioner-assessee did not submit any Reply to the Show Cause Notice dated 15.01.2023 or did not appear before the Proper Officer, when he was called upon to do so, does not absolve the Proper Officer from the obligation of passing a speaking order as any order which brings adverse consequence to a person cannot be a mere paper formality.
A submission has been made that the writ petition has been preferred with delay as the petitioner has filed the writ petition in February, 2025, that is, after about one year from the order of cancellation of registration. Although the petitioner has not approached the Court immediately after the order of cancellation of registration, this Court is of the considered view that when the extent of vulnerability of the order of cancellation of registration is due to not meeting the statutory prescription of recording reasons is pitted against the delayed approach, the vulnerability of the order of cancellation of registration would far outweigh the delayed approach because of its likely adverse affect on a registered person like the petitioner.
It is open for the petitioner-assessee to submit a Reply to the Show Cause Notice dated 15.01.2023 showing reason[s] as to why the GST Registration should not be cancelled in terms of sub-rule [2] of Rule 22 of the CGST Rules read with Section 29 [2] [c] of the CGST Act. In the alternative, the petitioner-assessee, at the time of and/or instead of replying to the Show Cause Notice served under sub-rule [1] of Rule 22 of the CGST Rules, can furnish all the pending returns and make full payment of the tax dues along with the applicable interest, late fee and penalty, if any. It is, therefore, observed that it would be open for the petitioner-assessee to avail either of the two options.
Conclusion - The impugned cancellation order quashed due to its procedural deficiencies and lack of reasoning. The matterias reverted to the stage of issuance of the show cause notice, allowing the petitioner to respond or comply with the requirements for revocation of cancellation.
Petition allowed by way of remand.
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2025 (3) TMI 1334
Cancellation of GST registration of petiiton without due application of mind - violation of princuples of natural justice - HELD THAT:- On perusal of the impugned Order, it is evidently clear that the impugned Order is not in conformity with the procedure prescribed in FORM GST REG-19. A speaking order is one which expressly states the reasons for the decision. In other words, a speaking order speaks for itself by assigning the reasons behind the conclusion. If an order is passed without giving a reason by the concerned authority, then the order is a non-speaking one. Non-speaking order is one which does not provide a clear reason for its decision. The fact that the petitioner-assessee did not submit any Reply to the Show Cause Notice dated 14.11.2023 or did not appear before the Proper Officer, when he was called upon to do so, does not absolve the Proper Officer from the obligation of passing a speaking order as any order which brings adverse consequence to a person cannot be a mere paper formality.
A submission has been made that the writ petition has been preferred with delay as the petitioner has filed the writ petition in February, 2025, that is, after about one year from the order of cancellation of registration dated 05.02.2024. Although the petitioner has not approached the Court immediately after the order of cancellation of registration, this Court is of the considered view that when the extent of vulnerability of the order of cancellation of registration is due to not meeting the statutory prescription of recording reasons is pitted against the delayed approach, the vulnerability of the order of cancellation of registration would far outweigh the delayed approach because of its likely adverse affect on a registered person like the petitioner.
It is open for the petitioner-assessee to submit a Reply to the Show Cause Notice dated 14.11.2023 showing reason[s] as to why the GST Registration should not be cancelled in terms of sub-rule [2] of Rule 22 of the CGST Rules read with Section 29 [2] [c] of the CGST Act. In the alternative, the petitioner-assessee, at the time of and/or instead of replying to the Show Cause Notice served under sub-rule [1] of Rule 22 of the CGST Rules, can furnish all the pending returns and make full payment of the tax dues along with the applicable interest, late fee and penalty, if any. It is, therefore, observed that it would be open for the petitioner-assessee to avail either of the two options. This Court, for ends of justice, deems it just and proper to grant a period of one month from today to the petitioner to avail either of the two permissible options.
Conclusion - The impugned cancellation order quashed due to its procedural deficiencies and lack of reasoning. The matterias reverted to the stage of issuance of the show cause notice, allowing the petitioner to respond or comply with the requirements for revocation of cancellation.
Petition allowed by way of remand.
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2025 (3) TMI 1333
Cancellation of GST Registration under the Central Goods and Services Tax - it is contended that manner in which the GST Registration has been cancelled is arbitrary and the impugned Order of cancellation has been passed without due application of mind - violation of principles of natural justice - HELD THAT:- On perusal of the impugned Order, it is evidently clear that the impugned Order is not in conformity with the procedure prescribed in FORM GST REG-19. A speaking order is one which expressly states the reasons for the decision. In other words, a speaking order speaks for itself by assigning the reasons behind the conclusion. If an order is passed without giving a reason by the concerned authority, then the order is a non-speaking one. Non-speaking order is one which does not provide a clear reason for its decision. The fact that the petitioner-assessee did not submit any Reply to the Show Cause Notice dated 11.10.2023 or did not appear before the Proper Officer, when he was called upon to do so, does not absolve the Proper Officer from the obligation of passing a speaking order as any order which brings adverse consequence to a person cannot be a mere paper formality.
A submission has been made that the writ petition has been preferred with delay as the petitioner has filed the writ petition in February, 2025, that is, after about one year from the order of cancellation of registration. Although the petitioner has not approached the Court immediately after the order of cancellation of registration, this Court is of the considered view that when the extent of vulnerability of the order of cancellation of registration is due to not meeting the statutory prescription of recording reasons is pitted against the delayed approach, the vulnerability of the order of cancellation of registration would far outweigh the delayed approach because of its likely adverse affect on a registered person like the petitioner.
It is open for the petitioner-assessee to submit a Reply to the Show Cause Notice dated 11.10.2023 showing reason[s] as to why the GST Registration should not be cancelled in terms of sub-rule [2] of Rule 22 of the CGST Rules read with Section 29 [2] [c] of the CGST Act. In the alternative, the petitioner-assessee, at the time of and/or instead of replying to the Show Cause Notice served under sub-rule [1] of Rule 22 of the CGST Rules, can furnish all the pending returns and make full payment of the tax dues along with the applicable interest, late fee and penalty, if any. It is, therefore, observed that it would be open for the petitioner-assessee to avail either of the two options.
Conclusion - The impugned cancellation order quashed due to its procedural deficiencies and lack of reasoning. The matterias reverted to the stage of issuance of the show cause notice, allowing the petitioner to respond or comply with the requirements for revocation of cancellation.
Petition allowed by way of remand.
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2025 (3) TMI 1332
Refund of unutilized Input Tax Credit (ITC) under Section 54(3) of the Central Goods and Services Tax (CGST) Act, 2017, due to an inverted tax structure - Works contract or supply of services - HELD THAT:- A perusal of the material on record will indicate that in relation to the very same petitioner, under identical circumstances in M/S. ITD CEMINDIA JV VERSUS THE JOINT COMMISSIONER OF COMMERCIAL TAXES (APPEALS) 5 BANGALORE, THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (LGSTO), BANGALORE [2024 (8) TMI 1538 - KARNATAKA HIGH COURT] held that 'the impugned orders passed by the respondents deserve to be set aside and the refund claim of the petitioner deserves to be allowed with a direction to the respondents to make the refund together with applicable interest within a stipulated timeframe.'
The aforesaid order passed by this Court in relation to the very same petitioner is directly and squarely applicable to the facts of the present case also and consequently the present writ petition deserves to be allowed and disposed of in terms of the aforesaid order.
Conclusion - The respondents are directed to consider the subject refund claims / applications of the petitioner and make payment together with applicable interest to the petitioner within a period of six weeks from the date of receipt of a copy of this order.
The impugne dorder is quashed - petition allowed.
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2025 (3) TMI 1331
Cancellation of GST registration - respondents have failed to assign any valid reason justifying the action of cancellation - violation of principles of natural justice - HELD THAT:- As is manifest from the original order of cancellation of registration as well as the order in terms of which the application for revocation has come to be rejected, the respondents have failed to assign any valid reason justifying the action of cancellation. The orders are thus liable to be quashed and set aside on this short score alone.
Additionally, it is noted that the original order of cancelling the registration of writ petitioner was ordained to come into effect from a retrospective date of 03 August 2017. The original SCN did not bear any intent to cancel the registration of the petitioner with retrospective effect.
Conclusion - The rejection of the revocation application without a hearing violated Section 30 of the CGST Act and principles of natural justice, leading to the quashing of the order.
The writ petition is allowed and the impugned SCN dated 02 February 2023, the order-in-appeal dated 04 October 2024, the original order for cancellation of registration dated 02 February 2023 as well as the order dated 14 May 2024 in terms of which the application for revocation has come to be rejected, are hereby quashed and set aside.
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2025 (3) TMI 1330
Levy of GST - rent received by the appellant from the Government Social Welfare College Boys Hostel (Govt SWCBH) - time limitation for filing appeal - HELD THAT:- This appeal has been filed with a delay of 22 days. It is contended by the appellant that the order impugned herein was not received by them by mail, message or any type of communication. However, it is observed that the said order was communicated to the appellant by email on 12.02.2024, inter-alia, at the email id [email protected]. It is further observed that in the Application Form for Advance Ruling (Form GST ARA-01), the same email id has been mentioned. Hence, it is incorrect of the appellant to submit that they had not received the Order of AAR, in time, leading to delay. In terms of proviso to sub-section (2) of Section 100 of the CGST Act, 2017, the Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the normal limitation period of 30 days, allow it to be presented within a further period not exceeding 30 days.
In the present case, only cause for delay is stated to be that the appellant came to know about the order after 30 days time limit had expired. However, the Order dated 09.02.2024 was communicated to the appellant herein on 12.02.2024 and as such the appeal should have been filed by 13.03.2024. No valid reasons for delay beyond 13.03.2024 are forthcoming. Hence, the present appeal is liable to be rejected as time barred.
The appeal is rejected as barred by limitation.
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2025 (3) TMI 1329
Levy of GST - sale of developed plots by applicant to various customers after development - development of plots' service provided to the land owners - transfer of development rights by the land owner in consideration of land development services received - determination of value of supply of such services for payment of GST - GST on Transfer of development rights - If tax is payable on TDRs on RCM basis and on development service, what is the time of payment and what is the applicable Notification.
HELD THAT:- In the instant case, no ruling has been passed by the AAR in respect of three questions. As such advance ruling against which the appeal is filed is incomplete. Further, the questions raised for advance ruling are interlinked. Therefore, appeal in respect of rulings on answered questions cannot also be effectively decided unless the rulings in respect of remaining questions are available. In view of this, this appeal is not maintainable. Though Section 101 of CGST Act, 2017 does not contain any provision to remand the matter, considering the fact that the lower authority has not passed a ruling on some of the questions raised by the appellant, it is constrained to remand the matter back to the lower authority to pronounce a ruling to meet the ends of the justice.
The order of the lower authority is set aside and the matter is remanded to the Advance Ruling Authority for consideration afresh.
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2025 (3) TMI 1328
Requirement to reverse Input Tax Credit availed on inputs consumed in the manufacture of finished goods viz. Steel Nails that were got destroyed in fire accident - HELD THAT:- On a combined reading of Section 2 and Section 16 of SGST Act, 2017, it can be construed that the definition of input tax is very wide and a registered person is entitled to take input tax credit on inputs, input services and capital goods if the same are used by him in course or furtherance of his business or the registered person has an intention to use such inputs, input services or capital goods in the course or furtherance of his business at the time of procurement of such goods/ services.
On a plain reading of sub-section (5) of Section 17 of the Act, it is clear that ITC shall not be available in respect of goods lost, stolen, destroyed or written off. Further, the use of non- obstante clause makes it evident that the provisions of Section 17 (5) have an overriding effect over the provisions of Section 16 (1) & Section 18 (1). As such, the averments made by the appellant with reference to Section 16 (1) of the CGST Act, 2017 do not merit consideration.
Conclusion - The appellant to reverse the ITC availed on inputs used in the manufacture of the destroyed finished goods.
The impugned Order of Advance Ruling Authority is upheld.
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2025 (3) TMI 1327
Seeking issuance of an appropriate writ directing the Respondents to pass an order for unconditional and provisional release of the goods entered for export - grievance of the Petitioner is that despite repeated letters to the Commissioner of Customs, requesting for release of the goods and seeking reasons for detention, no response has been received by the Petitioner - HELD THAT:- The Customs Department is taking steps only after filing of the present writ petition. The delay in this manner would not be permissible as consignments of the Petitioner and other similarly placed persons are held up, when expedited steps are not taken for clearing of goods.
A perusal of the letters on record also show that on 20th January 2025 and 12th March 2025, repeated communications have been written by the Petitioner to the Commissioner of Customs inter alia requesting for release of the goods, but no response was elicited.
Under these circumstances, it is directed that within a period of seven days, the Customs Department shall take a decision in this matter and provisionally release the goods, subject to any reasonable conditions that it deems appropriate on facts.
Petition disposed off.
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2025 (3) TMI 1326
Failure to adjudicate SCN - whether a SCN issued by the Customs Department, which has remained unadjudicated for a long period of time, in excess of ten years, in the present case, should be quashed only on such ground? - HELD THAT:- This Court finds that the notice issued by the Joint Director General Foreign Trade, Ahmedabad is substantially similar to the impugned show cause notices issued by the Customs Authority. This Court finds that even if the merits of the impugned show cause notice are not gone into to compare the similarity with the show cause notice dated 13.04.2010 issued by the Joint Director General Foreign Trade, Ahmedabad, the fact remains that the impugned show cause notices dated 08.03.2010 and 03.11.2011, in spite of personal hearings in the same having been granted in 2012, are yet to be adjudicated.
This Court, in Dhultawala Exim [2025 (1) TMI 1532 - GUJARAT HIGH COURT], relied upon several decisions of various High Courts including this Court and it was held that 'In the case of Siddhi Vinayak Syntex Pvt. Ltd. v. Union of India [2017 (3) TMI 1534 - GUJARAT HIGH COURT], held that a matter cannot be revived after 17 years when there is no appropriate reason for the delay and hence, the Show Cause Notice was quashed.'
Conclusion - The impugned SCNs have remained pending for more than 15 years and 13 years respectively. Considering the aforesaid decisions, this Court has no hesitation in holding that due to an inordinately long lapse of time, the impugned show cause notices dated 08.03.2010 and 03.11.2011 can no longer remain pending for adjudication and must be quashed and set aside on that score alone.
Petition allowed.
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2025 (3) TMI 1325
Time limitation for demanding SAD - Suppression of facts or not - main pleading of the appellant is on the ground that there was no suppression on their part and accordingly, the SAD amount could not have been demanded after more than 4 years from the date of clearance of the goods after the appellant has clearly indicated in the Bill of Entry that they are claiming the exemption under N/N. 20/2006 - HELD THAT:- The Commissioner (Appeals) has dismissed the appeal only on the ground that the appellant has not appeared before him whenever the hearings were granted to him. When the appeal has been filed alongwith the Statement of Facts and Grounds of Appeal taken by the appellant, it is incumbent on the Commissioner (Appeals) to go through these details and pass a detailed order on an ex-parte basis even if the appellant does not come for the Hearing. The appellant has demonstrated before us that in the CA-1 filed on 22.04.2016, in the Grounds of Appeal and in the Statement of Facts, they have clearly taken stand about the Show cause being barred by limitation.
The Commissioner (Appeals) was bound to consider this and give a finding as to why it is not acceptable to him in case the OIA is decided against the appellant. This has not been done - the imports have taken place on 13.04.2011 and 28.04.2011 that is immediately after a few days after this amendment was carried out. While the party can be pardoned for not going through this amendment and still claiming the SAD, it was also for the officers of the customs to check the Bills of Entry and immediately point out as to why this SAD exemption was being claimed when this amendment has already taken place with effect from 8.04.2011. This was not done.
The mistake of the party can be taken as a normal mistake committed by any importer when an amendment is carried out just a few days before the actual import. On the other hand, even after coming to know that this amendment has taken place on 8.04.2011, the Department has not come out with any explanation as to what made them wait for more than four years to issue the Show cause notice on 25.05.2015 by invoking the extended provisions of the Appellant to demand the differential Customs Duty - the Department has made out any case of suppression on the part of the Appellant.
The impugned order is set aside - appeal allowed.
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