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Showing 281 to 300 of 1642 Records
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2024 (7) TMI 1362
Notice issued without commenting on the maintainability of the petition under Article 136 of the Constitution of India - HELD THAT:- The notice is issued without commenting on the question of maintainability of the petition under Article 136 of the Constitution of India, as a legal issue is sought to be raised relying upon the ‘Explanation’ to Section 14 of the Insolvency and Bankruptcy Code, 2016. A copy of the license deed, including the terms and conditions on which it was granted, along with the statement of accounts will be filed by the petitioner, Department of Town and Country Planning, Haryana, in this Court within a period of four weeks from today.
Rejoinder affidavit may be filed within three weeks after service of the reply.
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2024 (7) TMI 1361
Disqualification from participating in coal mine auctions - debarment is premised on certain outstanding unsettled dues attributable to the Petitioner’s erstwhile management - whether the Petitioner is liable for the alleged dues, thereby ascertaining their eligibility to participate in the coal mine auctions? - HELD THAT:- With the approval of the resolution plan by the NCLT on 20th March, 2023, the claims that were not submitted in the required manner or were rejected by the Resolution Professional, are deemed extinguished. This extinguishment includes all dues, including statutory dues owed to the Central Government that were not incorporated in the resolution plan. The Respondent’s inaction in contesting the categorization of their claims by the Resolution Professional, or challenging the resolution plan signifies their acceptance of the resolution process. Moreover, even if we were to hypothetically consider the financial impact of the PBG claim, had it been recognized as valid operational debt, the actual financial benefit to the Respondent would have been minimal - there exists no legal basis for the Respondent to obstruct the Successful Resolution Applicant’s participation in the auction process.
The finality and decisiveness of an approved resolution plan is recognized under the IBC’s framework. The resolution process, as endorsed by the NCLT, aims to free the corporate debtor from past liabilities and enable a fresh operational start, unhampered by unresolved and extinguished debts - The mandate of Section 31 (1) of the IBC underscores that once a resolution plan is approved by the Adjudicating Authority, it is binding not only on the corporate debtor, but also on all stakeholders, including Central and State Governments, as well as any local authorities to whom debts are due under any current laws. This binding nature extends to all statutory dues owed to these authorities.
In COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] the Supreme Court has elaborated on the treatment of claims post-approval of a resolution plan. The Apex Court emphasized that a Resolution Applicant should not be encumbered by sudden and unforeseen claims. Such occurrences would not only disrupt the financial calculations and expectations that underpinned the resolution plan, but also undermine the very purpose of the IBC, which aims to streamline and stabilize the process of corporate revival - the introducing claims that were not part of the list of assessed and finalized claims in CIRP post the approval of resolution plan, contravenes the established legal framework and the Supreme Court’s holding. This ruling importantly guards against the ‘hydra head phenomenon,’ where unexpected financial liabilities emerge post the CIRP, potentially destabilizing the newly revived corporate debtor and deterring future investment and participation in the insolvency resolution processes.
The IBC facilitates economic rehabilitation of the corporate debtor, enabling it to service its debts, thereby enhancing the reliability of the credit market. Importantly, the Code prioritizes the interests of all stakeholders, including the corporate debtor, by shielding it from its past management and potential liquidation threats. This focus on revitalization over mere credit recovery segregates the debtor’s interests from those of its previous promoters or managers, underscoring the IBC’s object as a protective, not adversarial, mechanism in the resolution process. This legislative framework is designed to return the corporate debtor to viability, benefiting the broader economic ecosystem - the Court remains unconvinced with the Respondent’s construal of the observations of the NCLT in deciding concessions to the corporate debtor in respect of their obligations to the Respondent.
The resolution framework intends to balance the interests of all stakeholders, including creditors, by ensuring that they are bound by the finalized resolution plan. As such, the Respondent, who is a creditor within its context, is obligated to adhere to the stipulations of the resolution plan as approved on 20th March, 2023, which mandates an interpretation and application of the IBC as per its intent and statutory mandate. By holding the Petitioner accountable for liabilities that have been legally extinguished, the Respondent has failed to adhere to the statutory mandate of the IBC and the broader objectives of insolvency resolutions. The insistence on clearing past dues contradicts the rehabilitative intent and purpose of the IBC, calls for judicial intervention.
The impugned decision dated 22nd May, 2024, issued by the Respondent, stipulating that the Petitioner remains ineligible to participate in coal mine auctions until outstanding dues to the Petitioner are cleared, cannot sustain - the present writ petition is allowed and the impugned decision dated 22nd May, 2024 is set aside.
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2024 (7) TMI 1360
Validity of the notice of hearing - Adherence to Rule 4(3) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - HELD THAT:- The adjudicating authority is duty bound to explain to the person proceeded against or his legal practitioners about the contraventions alleged to have been committed. Communicating the formation of opinion and the reasons will be informed to the person or his legal representative by the adjudicating authority under Rule 4(4) of the Rule. On receipt of such materials from the adjudicating authority on the hearing date the person concerned is at liberty to defend their case by following the procedures as contemplated under Rule 4(5) to 4(12) of the Rules.
When Rule 4(4) unambiguously contemplates that the reason for proceeding with the adjudication must be informed to the persons or to the legal practitioners or to the Chartered Accountants, and the such information should be provided along with the allegations and the provisions of the Act and Rules. The said rules contemplates providing of information to the persons and therefore, Rule 4(3) cannot be construed as violating the Rules of Natural Justice or contravening any of the provisions of law.
Rule 4(3) and Rule 4(4) should be read constructively so as to understand that a fair opportunity has been provided. Communicating the opinion of the adjudicating authority under Rule 4(3) may not be required since the adjudicating authority is bound to provide all such information along with the provisions under Rule 4(4) of the Rules. Therefore, Rule 4(3) cannot be read in isolation and it is to be read along with Rule 4(4) for constructively interpreting the procedures so as ensure that fair opportunity has been provided under the Rules and the Rules of Natural Justice has been complied with.
Though this Court had an opportunity to consider the Bombay High Court Judgement, relied on by the Delhi High Court and the Kolkata High Court, the later judgement of the Division Bench of the Madras High Court is more relevant with reference to the spirit of Rule 4 in entirety including Rule 4(3). The scope of rules/procedures cannot be expanded by the High Court in exercise of the powers of the judicial review under Article 226 of the Constitution of India. The procedures, as contemplated under the Rules, are to be read as it is and any expansion providing additional opportunity, would undoubtedly cause prejudice to any one of the parties and would provide further cause for the purpose of prolonging and protracting the proceedings.
The practice of prolonging and protracting the enquiry proceedings by approaching the High Court at each stage cannot be appreciated. Once the proceedings are commenced, the adjudicating authorities are expected to follow the procedures scrupulously and the persons concerned are bound to cooperate and defend their case by availing the opportunities to be provided in accordance with the Rules in force.
In view of the fact that the judgement of the Division Bench of the Madras High Court, in the case of India Cements Limited [2018 (6) TMI 389 - MADRAS HIGH COURT] is the latest judgement wherein the interpretation of Rule 4(3) offered by the Bombay High Court was considered, this Court is bound by the decision of the Division Bench of High Court of Madras. WP dismissed.
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2024 (7) TMI 1359
Denial of benefit of exemption from payment of service tax under the N/N. 42/2012–ST dated 29.06.2012 on account of delayed furnishing of Form EXP–3 - non-submission of the invoice of the service provider with half yearly return.
Non-suited for grant of exemption is violation of the Condition No.3 of the notification - HELD THAT:- The Authorities below have misconstrued the provisions of Condition No.3 in as much as the exemption is prohibited in the event the Indian partner has an equity participation in an overseas joint venture or wholly owned subsidiary whereas in contra 69.62% shares of the appellant company are held by the Dutch US holding B.V. Netherlands. Therefore, the said condition is not really applicable in the facts of the share holding pattern - there is no violation of the said condition to dis-entitle the appellant to claim the exemption under the notification.
The next ground is that EXP–3 Form, which was an intimation to the Department of intending to avail the benefit of the notification was filed by the appellant belatedly - HELD THAT:- The learned counsel for the appellant is agreed upon that this is just a procedural lapse as the half yearly return in EXP–4 that they have availed the exemption was filed within the time limit prescribed with all the requisite documents, which clearly shows that the goods have been exported. The intimation to avail exemption under Form EXP–3 was merely a procedural condition and strict compliance thereof is not required so as to deny the exemption to the appellant.
The next issue raised is that the invoices issued by the foreign commission agents were not submitted to the Department - HELD THAT:- The submission on behalf of the appellant is that the commission amount has been paid as per the agency agreement through HDFC bank to the agents bank account after receipt of payments of exported goods from the customers. The details of the export invoices number and date, name of agents, shipping bills, number and date with bank reference number, F.O.B. value and amount of commission paid with copies of HDFC bank and debit advices were filed with the Department. Since the commission was paid on the basis of percentage of FOB, as mentioned in the agreement itself, there was no requirement of raising any invoice by the agent and accordingly, the same has not been raised - The export of goods is evidenced by the shipping bill and the amount of compensation as per the agreement is evident from the payment advice of the bank. The lapse, if any, is not very fatal so as to dis-entitle the appellant to claim the exemption.
Similarly, the learned Single Member in M/S RADIANT TEXTILES LTD. VERSUS CCE, CHANDIGARH-II [2016 (10) TMI 242 - CESTAT CHANDIGARH] considered the decisions of the High Court of Bombay in UNION OF INDIA VERSUS FARHEEN TEXTURISERS AND OTHERS [2010 (7) TMI 982 - BOMBAY HIGH COURT] and of the Allahabad High Court in COMMR. OF CUS. & C. EX. VERSUS J.S. GUPTA AND SONS [2015 (7) TMI 379 - ALLAHABAD HIGH COURT] to conclude that the basic requirement of the notification has not been disputed by the Revenue, therefore substantive benefit cannot be denied on account of technical lapse.
The appellant had complied with all the conditions of the notification and is, therefore, entitle to avail the benefit thereof. Since the issue has been decided on merits, the invocation of extended period of limitation or the interest and penalty does not require any consideration.
The impugned order is unsustainable and is hereby set aside - Appeal allowed.
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2024 (7) TMI 1358
Admissibility of refund claims filed by a SEZ unit for the service tax paid on input services in terms of the notifications issued under the Finance Act, 1994 - N/N. 40/2012–ST dated 20.06.2012 and under N/N. 12/2013–ST dated 1.07.2013 - denial on the ground that the conditions specified in the notification, in particular condition number 2 (c), 3 (e) and 3 (f) were not complied with - HELD THAT:- The law is well settled that benefit of exemption granted under the notifications issued under the Finance Act are of general nature being available to any one and not necessarily confined to a unit in SEZ, which is peculiar in the case of section 26 of SEZ Act being a special power of exemption under a special enactment for a unit in a special economic zone. Therefore, notification issued under section 93 of the Finance Act 1994 cannot be pressed into service for finding out whether a unit in SEZ qualifies for exemption or not.
It is found that it is an admitted position that the respondents are holders of letter of approval issued by the Development Commissioner for the manufacture of pharmaceutical products within the Special Economic Zone, Pithampur, Indore. They have availed various services for setting up their unit in the SEZ, which have been used in relation to the operations of the unit - the services rendered by the appellant are fully exempted from service tax in terms of the provisions of the SEZ Act, the condition of exemption by way of refund imposed by virtue of the notifications issued under the provisions of the Finance Act are inconsistent with the provisions of the SEZ Act and hence the provisions thereof cannot be imposed on the respondent to deny the refund.
The view taken in the impugned order is in accordance with the decisions of the High Court as well as by various Benches of the Tribunal and hence no interference is called for. There are no merits in the appeals filed by the revenue - the appeals are dismissed.
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2024 (7) TMI 1357
Classification of goods - Agro Shed Net manufactured by the petitioner - to be classified as ‘fabric’ or as plastic - main grievance raised by the petitioner is that the respondent-authority has ignored the decision of this Court rendered in case of MESSERS CTM TECHNICAL TEXTILES LTD VERSUS UNION OF INDIA [2020 (12) TMI 1100 - GUJARAT HIGH COURT] and issued the impugned show-cause notice.
HELD THAT:- The petitioner can raise all the contentions which are raised in this petition in reply to the impugned show-cause notice which can be adjudicated by the respondent-authority. The petition is a premature petition and there are no doubt about the capacity of the respondent-authority to adjudicate the show-cause notice after considering the contentions which may be raised by the petitioner including the decision of this Court in case of CTM Textiles Technical Ltd vs Union of India.
Without entering into the merits of the matter, the petition is disposed of with a liberty to the petitioner to file reply to the impugned show-cause notice.
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2024 (7) TMI 1356
Constitutional Validity of Rule 8(3A) of the Central Excise Rules, 2002 - compliance with the provisions of Rule 8(1) read with Rule 8(3) of the Central Excise Rules, 2002 - stay granted in the case of Indsur Global Ltd. [2014 (12) TMI 585 - GUJARAT HIGH COURT] by the Hon’ble Supreme Court is binding upon the Learned Tribunal or not? - HELD THAT:- It cannot be disputed that the decision in the case of Indsur Global was challenged before the Hon’ble Supreme Court in [2014 (11) TMI 1101 - SC ORDER] and by order dated 24th September, 2015 the Hon’ble Supreme Court has stayed the judgment of the High Court of Gujarat. The decision of this Court in Goyal MG Gases [2017 (8) TMI 1515 - CALCUTTA HIGH COURT] appears to have been rendered taking note of the decision of the High Court of Gujarat in the case of Indsur Global.
When similar appeal came up before this Court on earlier occasion, the Court has set aside the order of the learned Tribunal and remanded the matter back to the Tribunal to be kept pending before the Tribunal to be taken up for decision after the judgment is rendered by the Hon’ble Supreme Court.
The order passed by the learned Tribunal is set aside and the appeal is restored to the file of the learned Tribunal and the matter shall be kept pending and taken up after the judgment of the Hon’ble Supreme Court in Special Leave to Appeal No.16523/2015 and other connected matters.
Appeal retsored.
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2024 (7) TMI 1355
Approved 100% EOU under EHTP scheme - demand of duty - eligibility for the benefit of exemption N/N. 2/95-CE dated 04.01.1995 - reducing the penalty under Section 11AC of CEA.
Whether the duty demanded by the Commissioner in the impugned order for Rs.15,19,610/- is liable to be confirmed or the original demand of Rs.2,54,01,776/- is to be confirmed as claimed by the Revenue in their appeal? - HELD THAT:- With regard to Annexures II, the observations of the Commissioner have not been countered with any evidences by the appellant except to produce the same document that was placed before the Commissioner which has been disputed - the Commissioner observed that the Range Superintendent vide his letter dated 14.07.2008 had reported that no documents were produced by the assessee to show that the items were duty-paid. It is also stated that in respect of other clearances, the same has been admitted. In view of the above, the submissions of the learned counsel that subsequently duty was paid cannot be accepted. It is a settled issue that waste and scrap are liable to duty even if it is generated out of duty-paid raw material. In view of the above, the confirmation of the demand of Rs. 11,78,778/- is upheld.
With regard to the amount confirmed under Annexure III, the learned counsel has argued that the report placed by the Superintendent only states that connected invoices duly verified but invoice date (date of removal) does not tally with the dispatch date - The assessee could not put forward any evidence to prove that the goods were properly accounted and duty was paid on clearing the same.’ In view of the above, there are no reason to disagree with the Commissioner.
Coming to the demand at Annexure VI, it is very clear that the Commissioner had accepted the report dated 31.03.2009 from the Range Officer which states that duty was paid for Serial No.1,2,6 to 10 while for Serial No. 4 and 5 duty was not paid, hence duty was confirmed only for Serial No. 4 and 5. Therefore, this demand needs to be sustained.
Whether the appellant-assessee is eligible for the benefit of exemption Notification No.2/95-CE dated 04.01.1995? - HELD THAT:- Since the clandestine removals are beyond permissible limits by the Development Commissioner, the question of extending the benefit of Notification No.2/1995-CE does not arise. Hence, the entire demand of Rs.30,39,220/- is confirmed.
Departmental appeal is partially allowed only to the extent of denying the benefit of N/N. 2/1995-CE dated 04.01.1995 to the appellant and the matter stands remanded to the original authority for re-determining the duty and with regard to penalty, to extend the benefit of Section 11AC(d) if the duty along with interest and reduced penalty is paid within the stipulated time as per law. The Revenue’s appeal stands remanded, needless to say that an opportunity of being heard may be given to the appellant.
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2024 (7) TMI 1354
Valuation - Admissibility of cross model utilisation of incentives/discounts - whether the incentive of discounts declared for small/mid segment cars be allowed to luxury model cars i.e., Fortuner, Innova and Corolla attracting higher rate of duty? - Extended period of limitation - suppression of facts.
HELD THAT:- In Tata Motors Ltd. case [2014 (6) TMI 162 - CESTAT MUMBAI], this Tribunal held that discounts passed on by the appellant to the dealers does not satisfy the requirement of a trade discount to qualify for deduction in as much as if the discount is declared for a particular model of car, the end-user is not receiving the discount and the discount is purely arbitrary; hence, not available as an abatement from the price of the goods.
Invocation of extended period of limitation - suppression of facts or not - HELD THAT:- The appellant has been following the said mechanism of passing incentives/discount since 2008 and no objection has been raised by the department. The issue raised only after the judgment of the Tribunal in Tata Motors Ltd.’s case by Central Excise Revenue Audit and the demand has been computed on the basis of available records; show-cause notice was issued to the appellant demanding differential duty proposing denial of said deduction from the price. Hence, there are no suppression or mis-declaration or mis-statement of facts on the part of the appellant. In absence of any suppression or mis-declaration of the facts, larger period of limitation cannot be invoked. Consequently, the demand is barred by limitation.
The impugned order is modified and appeal is allowed on the ground of limitation only.
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2024 (7) TMI 1353
Classification of goods - process of printing, cutting and folding of a special paper and supplying the finished goods for use in the surgical glove industry - to be classified under Tariff headings 4823 9013 preferred by the department and 4817 3090 of CETA? - suppression of facts - extended period of limitation - HELD THAT:- The process of manufacture of the impugned product, is that special paper in reel form is fed into the machine where the product details and user instructions are printed on the paper and then it is cut to sizes and machine folded. The resultant end product is known as ‘surgical glove inner wrap’ or ‘surgical glove inner wallet’ by the trade. A single sheet of the inner wrap is used for wrapping both the left and right hand (pair), latex surgical / examination gloves and are marked / indicated on the exterior of the inner wrap.
The appellant has sought to classify the product under heading 4817 as a ‘wallet’. ‘Boxes, wallets and writing compendiums, of paper or paper board, containing an assortment of paper stationery’ mentioned under heading 4817 of CETA, 1985 and relied upon by the appellant, are basically in the nature of goods used to store or carry smaller items. The appellant has stated that the Merriam-Webster Dictionary defines wallet as a bag for carrying miscellaneous articles while travelling, a container that resembles a money wallet such as an usually flexible holding case fitted for carrying specific items. Therefore, a wallet is defined to be any article which is used to carry or hold any item. Since there is no definition for the term 'wallet' in the tariff, reliance can be placed on the dictionary meaning of the said word. Therefore, the product in question is clearly a wallet.
The nature and purpose of the inner wrap is to provide a sterile cover to the surgical gloves and is designed to facilitate the easy and uncontaminated wearing of the gloves by the users, who are generally in the medical profession. It is not designed to store and carry goods by hand and is open from three sides - The inner wrap is hence used as a packing and wrapping paper for surgical gloves and is appropriately classification under tariff heading 4823 9013 of CETA as determined by revenue. This being so the classification of the goods under heading 4817 3090 has correctly been rejected.
Extended period of limitation - suppression of facts or not - HELD THAT:- The issue involves the classification of a product known in the trade as ‘surgical glove inner wrap’ or ‘surgical glove inner wallet’. ‘Wallet’ figures under tariff heading 481730 of CETA, 1985. Even though, it is found that the classification of the product under the said heading is not correct due to its characteristics, the appellant could not be blamed for having thought otherwise. There is no suppression of fact that has been brought out by revenue, nor is an intention to evade payment of duty discernable. Hence the demand under the extended period of time has to fail along with the imposition of penalty.
The classification of the goods under tariff heading 4823 9013 of CETA 1985, as determined in the impugned order upheld, but the demand of duty limited to the normal period with appropriate interest - the penalty imposed is set aside - appeal allowed in part.
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2024 (7) TMI 1352
Deemed sale or not - supply of 'goods' defined under Section 2(h) (iii) [should have been sub-clause (ii)] and 2(h) (iv) of the GST Act - it was held by High Court that 'it is found that no transfer of right to use the goods provided by the assessee to the contractors for constructing, erecting or laying out the power grids, sub-stations and transmission lines for the assessee.' - HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
The Special Leave Petitions are, accordingly, dismissed.
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2024 (7) TMI 1351
Forum shopping - direction to respondents to provide an alternate flat in vicinity as that of flat which was booked by the petitioners in their project namely NBCC Green view Apartments - direction to respondents to refund the amount paid by the petitioners with reciprocal interest @ 15% per annum and with compensation for mental torture, agony, and harassment; and to pay extra compensation - HELD THAT:- This is a classic case of extreme hardships suffered by a home buyer who has been made to run from pillar to post after having spent his entire life savings. It is unfortunate that a 'State' under Article 12 of the Constitution of India has raised this objection that the Petitioner is guilty of forum shopping. A helpless home buyer who has sunk his life savings has no other option but to knock door after door and hoping against hope that he ould be able to get his money back.
In the present case, the Petitioner entered into the agreement way back in the year 2012. In five years, the Petitioner has pumped in over Rs. 76 lakhs. A 'No Dues Certificate' has been given to the Petitioner. Structural defects have been found out in the construction after certain persons started occupying the flats. Petitioners and several other persons have been left in lurch and have been forced to knock the doors of various forums.
NBCC is an instrumentality of the State. It is well settled that the 'State' is duty bound to act reasonably and fairly. In NOIDA ENTREPRENEURS ASSOCIATION VERSUS NOIDA & ORS. [2011 (5) TMI 1043 - SUPREME COURT], the Apex Court held that the State or the public authority which holds the property of the public acts as a trustee, and therefore, has to act fairly and reasonably. The State or the instrumentality of the State is accountable to the people and it is supposed to act in public good promoting public interest. An action of a State or the instrumentality of the State stands vitiated if it lacks bonafides.
Admittedly, the total consideration of the flat has been paid in 2017. Material on record indicates that there are structural defects in the buildings. In view of the fact that the Petitioner has been deprived of his money for the last 10 years, structurally defective houses have been constructed by the NBCC, the Petitioner has been left in complete lurch, the refusal of the Respondent which is a State to pay interest on the amounts which it held in trust of the Petitioners and the reluctance to ensure that the Petitioner is rehabilitated effectively, the Respondent should be dealt with severely.
This Court is, therefore, inclined to allow the instant writ petition directing the Respondent/NBCC to return the entire amount of money paid by the Petitioners within a period of six weeks from today along with interest @ 12% from 30.01.2021 till today - In view of the fact that the Petitioner has been forced to shift accommodation and fend for himself in the last seven years and has been put to extreme mental agony, this Court is inclined to direct the NBCC to pay a sum of Rs.5 lakh to the Petitioner.
Petition allowed.
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2024 (7) TMI 1350
Violation of principles of natural justice - non-service of SCN - petitioner has failed to notice the notices issued in Form - DRC - 01A dated 07.09.2023 and Form - DRC - 01 dated 12.10.2023, which had been uploaded in the GST Common Portal - Challenge to impugned order in Form – GST DRC – 07, dated 26.12.2023 passed for the Assessment Year 2017-2018 - HELD THAT:- Although the respondent submits that the Writ Petition is devoid of merits in the light of the decision of the Hon'ble Supreme Court in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT], the petitioner can be given a partial reprieve in this Writ Petition by quashing the impugned order on terms.
The petitioner shall deposit 25% of the disputed tax to the credit of the respondent from the Electronic Cash Register, within a period of 30 days from the date of receipt of a copy of this order. The impugned order which stands quashed in this order shall be treated as Addendum to the show cause notices already issued to the petitioner. The petitioner shall file a consolidated reply within a period of 30 days from today.
This Writ Petition stands disposed of.
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2024 (7) TMI 1349
Cancellation of GST registration of petitioner with retrospective effect - impugned order does not indicate any reason for cancelling the petitioner’s GST registration - violation of principles of natural justice - HELD THAT:- There are merit in the contention of the petitioner that the petitioner’s GST registration could not have been cancelled without affording the petitioner an opportunity of personal hearing to address the aspect of cancellation of GST registration with retrospective effect.
The impugned order is set aside and the matter is remanded to the Proper Officer for consideration afresh. The petitioner may file its reply to the impugned SCN within the period of two weeks from date. The Proper Officer will consider the reply of the petitioner and take an informed decision after affording an opportunity of being heard to the petitioner.
Petition disposed off by way of remand.
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2024 (7) TMI 1348
Challenge to assessment order - same Officer has assumed dual role both as the Commercial Tax Officer and the State Tax Officer (Data Analytics) (Intelligence Wing), Virudhunagar - respondents is unable to explain as to why the same officer has signed in two different capacity, one as the Commercial Tax Officer, Tirunelveli and another as the State Tax Officer, (Data Analytics) (Intelligence Wing), Virudhunagar - HELD THAT:- Since there is no proper explanation, the Court is inclined to set aside the impugned orders and remit the cases back to the second respondent to pass fresh orders on merits and in accordance with law as expeditiously as possible preferably within a period two months. Needless to state, the petitioner shall be heard, before passing the orders. The petitioner shall co-operate with the second respondent. In case, the petitioner fails to co-operate with the second respondent, the respondents are at liberty to proceed against the petitioner based on the available materials on record.
The petition is disposed off.
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2024 (7) TMI 1347
Challenge to assessment order - liability of tax based on deceased husband's business - recovery of the tax from the petitioner, after husband's death - whether business of the deceased husband was carried on by the petitioner or not - HELD THAT:- The petitioner appears to have replied to the respondent on the letterhead of the proprietary concern implying as if the petitioner was carrying on the business of her late husband, namely Sundaramurthy, who has died on 20.12.2022.
This Court is inclined to set aside the impugned orders and remit the cases back to the respondent to pass a fresh order on merits and in accordance with law. The petitioner shall file a reply to the notices that preceded the impugned orders.
Petition allowed.
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2024 (7) TMI 1346
Violation of principles of natural justice - impugned order is unreasoned and the only ground for rejecting the petitioner’s response to the impugned SCN is that the same “has not been found satisfactory” and the petitioner has not been able to submit “substantial proof in support of his reply” - irregular availment of ITC - HELD THAT:- The impugned SCN did not allege that the petitioner had not received the goods from the dealer in question. The impugned SCN is premised on Section 16 (2) (c) of the CGST/DGST Act which, according to the Revenue, disentitles a taxpayer from availing ITC in respect of supplies, if the actual tax on the said supplies has not been deposited by the supplier. And, the impugned order does not indicate that the Adjudicating Officer had finally concluded that the dealer in question (Modern Traders) had not paid the taxes due on the supplies made to the petitioner.
Although, the petitioner has a remedy of preferring an appeal against the impugned order, considering that the impugned order is unreasoned, in the peculiar facts, it is not considered apposite to relegate the petitioner to avail the remedy of an appeal.
The impugned order is set aside. The matter is remanded to the Adjudicating Officer to decide afresh in accordance with law after affording the petitioner an opportunity to be heard - petition disposed off by way of remand.
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2024 (7) TMI 1345
Principles of natural justice - no reasons are assigned for levying interest and penalty - transfer of goods between two establishments or not - HELD THAT:- The respondent authority ought to have assigned reason for levy of penalty of Rs. 01,32,774/- as well as levy of tax when the goods were admittedly not by E-invoice for sell but the goods were transported from head office to Halol plant of the petitioner and therefore, it can be said to be transfer of goods between the two establishments of the petitioner.
This Court in case of Dhabriya Polywood Ltd. v. Union of India [2022 (5) TMI 184 - GUJARAT HIGH COURT] has relied on the Circular of the CBIC dated 14th September, 2018 and has held 'The manner in which the writ applicant has proceeded so far and also having regard to the fact that very promptly he brought to the notice of the authority concerned and admitted its mistake, we would like to give the writ applicant some benefit of doubt.'
In case of Orson Holdings Company Ltd. [2023 (1) TMI 1026 - GUJARAT HIGH COURT], while considering the provisions of Section 129, it was held 'it can be gathered that there does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill. The company is situated at Howrah, West Bengal and the place of delivery was Jamnagar, Gujarat and in transit, this e-Way bill has expired.'
The respondent authorities having not assigned the reasons, the impugned orders are not sustainable and are accordingly quashed and set aside. The matter is remanded back to respondent No. 2 to pa fresh de novo order after giving opportunity of hearing to the petitioner by assigning reasons in detail taking into consideration the above decisions while passing the order in accordance with law.
Petition allowed partly.
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2024 (7) TMI 1344
Levy of GST - supply of service or not - differential dealer margin provided by the petroleum companies to its retail dealers - rate of GST - If it is taxable, then what is the justification for bringing the same under the purview of GST? - HELD THAT:- The amount paid as differential dealer margin is in the nature of a consideration in return of the applicant agreeing to run the dealership despite low sales volume. This amount is therefore in the nature of a consideration received for agreeing to the obligation to refrain from an act, and squarely falls under clause (e) of Sl No. 5 of Schedule II of the CGST Act, 2017 and hence taxable to GST. Hence, the first reason cited by the applicant for nonpayment of tax is not valid, Further, in view of the above, Circular 29/2019 (F 17(134) AACT/GST/20I 7/4596 dtd 28-06-2019 cannot be cited as a reason for non-payment tax by the applicant.
Section 15 of the Act deals with the calculation of the value of taxable supply and sub-section 3 deals with taxability of discount given on that value of taxable supply. In the instant case, the sale of petrol/diesel is not the supply under section 15 (3) as interpreted by the applicant. The taxable supply under discussion in the present matter is “agreeing to the obligation to refrain from an act”, for which a differential dealer margin is given by HPCL to the applicant. Though the consideration for this supply is linked to the sales volume of petrol, it is not a discount given on the supply of petrol. Hence, section 15 (3) of the Act is not applicable in the instant case. Further, in view of the above, GST Circular 29/2019 (F 17(134) AACT/GST/2017/4596 dtd 28-06-2019 cannot be cited as a reason for non-payment tax by the applicant.
Rate of GST - HELD THAT:- There is no dispute that the applicant’s supply of petrol/diesel to end customer is not taxable to GST. However, the supply in the present case is that of the service of agreeing to the obligation to refrain from an act. As per the Annexure: Scheme of Classification of Services annexed to Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended from time to time, the service of “Agreeing to refrain from doing an act” is classified under Section 9, Heading 9997, Service Code (Tariff):999793. As per SI. No. 35 of the aforementioned notification, the same is taxable 18%
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2024 (7) TMI 1343
Scope of Advance Ruling application - issuance of delivery note and e-way bill by job-worker, if the principle is not issuing the delivery note - Value to be shown in delivery note and in e-way bill by the job worker pre and post job work - Any other related or associated questions - HELD THAT:- The questions do not fall under the purview of any of the clauses of section 97 (2) of the CGST/KSGST Act 2017. Moreover section 98 of the Act specifies the procedures to be followed on the processing of receipt of an advance ruling application. As per subsection (1) of section 98, the authority shall forward a copy of the application to the concerned jurisdictional officer, if necessary, call upon him to furnish the relevant records. Sub-section (2) of section 98 provides that the authority can either admit or reject the application after examining the application and records called for and hearing the applicant and the jurisdictional officer either directly or through authorized representative.
On a combined reading of the above provisions governing advance ruling under the CGST Act it is evident that the authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of the CGST/SGST Act.
The applicant does not raised any other related or associated questions.
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