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Showing 321 to 340 of 1466 Records
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2023 (1) TMI 1146
Seeking to condone the delay of 17 days in preferring the instant Appeal - Rule of Construction - HELD THAT:- It is latently and patently quite clear that the period of Limitation as per Order of this Tribunal dated 21.10.2022, shall be calculated from the presentation of the Appeal, in the instant case, the Appeal, having been presented by the Appellant, (submission of Appeal papers, through physical mode (on 12.12.2022), on the 47th day, which is beyond the 45 days (30 + 15 days), clearly barred by Limitation - the further delay of 2 days, after 45 days, is beyond a period of Limitation (30 + 15 days), which cannot be condoned, by this Appellate Tribunal, and in this regard, this Tribunal has no power to excuse the same.
This Tribunal, on a careful consideration of divergent contentions advanced on either side, and also taking into account of the facts and circumstances of the present case in an encircling manner, comes to a consequent conclusion that the instant Comp. App (AT) (CH) (INS.) No. 13 of 2023, is barred by time, and further that the IA No. 34 of 2023 in CA (AT) (CH) (INS. No.) 13 of 2023, seeking to condone the delay of 14 days, in filing the instant Appeal, is per se, not maintainable, and the delay in question, is not a condonable one.
Application dismissed.
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2023 (1) TMI 1145
Seeking refund to the Corporate Debtor’s Account in the Corporate Insolvency Resolution Process - existence of sufficient cause and non-appearance of the parties or not - the grievance of the Appellant / Bank / Petitioner is that the Application came to be dismissed by the Tribunal on 18.10.2022 without taking into consideration Rule 49 of the NCLT Rules, 2016 - HELD THAT:- Rule 49 (2) of the NCLT Rules, 2016 under the caption, Ex parte Hearing and Disposal points out that if a Notice was not duly served or the concerned person was prevented by any sufficient cause for appearing at the time when the Petition / Application was called for Hearing, the Tribunal (Adjudicating Authority) can pass an Order, by setting aside the Ex parte Hearing, as against it / him or them, (after being satisfied with the reason (s) assigned, of course) on such terms, as it thinks fit.
In the instant case, although the Appellant / Bank, has come out with a specific plea that only due to Covid-19 Pandemic, the Appellant / Bank / Petitioner had skeletal staff operation, both at the Corporate Office, Branch Office, etc. and that were the only reasons for the Petitioner / Appellant / Bank was not quite enough to enter its appearance in the subject matter of the case before the Adjudicating Authority (Tribunal).
Although the Plea of Covid-19 Pandemic, appears to be a persuasive one, at the first blush, on acceptable one, on going through the spirit and tenor of the Counter filed by the Respondent, this Tribunal without any haziness, comes to an inevitable and inescapable conclusion that there is no Sufficient Cause / Good Cause for Allowing the application - this Tribunal is in Complete Agreement with the Conclusion, arrived at by the Adjudicating Authority (Tribunal) in the impugned order which is free from any Legal Flaws.
Application dismissed.
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2023 (1) TMI 1144
Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - pre-existing dispute or not - Appellant has contended that the Section 9 application was wrongly admitted by the Adjudicating Authority on the sole ground that there was no ground for pre-existing dispute between the parties though there was strict evidence proving the contrary and that aggrieved by the impugned order.
Whether the operational debt claimed by the Operational Creditor was admitted by the Corporate Debtor as due and payable and not surrounded by pre-existing disputes?
HELD THAT:- The Adjudicating Authority while noting that the Corporate Debtor has denied their obligation to pay pending dues to the Operational Creditor, it has further held that the disputes raised by the Corporate Debtor in denying the claims is an after-thought and that there is no evidence presented to demonstrate their dissatisfaction with the work done by the Operational Creditor.
The very fact that the Operational Creditor had issued a Legal Notice is suggestive of a pre-existing dispute between the two parties. That the contentions raised in the Legal Notice were countered by the Corporate Debtor reinforces the existence of dispute between the parties. It is also pertinent to note that the Legal Notice was issued much before the issue of Demand Notice. That the reply to Legal Notice clearly predates the Section 8 Demand Notice by nearly five months has somehow managed to escape the attention of the Adjudicating Authority. Thus to hold that the disputes raised in the reply to the Legal Notice is an ‘after-thought’ is fallacious and hopelessly misplaced on the part of the Adjudicating Authority.
It is well settled that in Section 9 proceeding, there is no need to enter into final adjudication with regard to existence of dispute between the parties regarding operational debt. What has to be looked into is whether the defence raises a dispute which needs further adjudication by a competent court.
The Corporate Debtor having raised genuine disputes in their detailed replies to the Legal Notice and the Demand Notice, the Adjudicating Authority ought not to have admitted the Section 9 application - the impugned order are set aside - appeal allowed.
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2023 (1) TMI 1143
Interpretation of statute - meaning of expression ‘tax dues’ occurring in Section 124 (2) of the FA - Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 - case of the Petitioners throughout has been that for the purpose of Section 124 (2) FA, which applies to the SVLDR Scheme, it had already paid in excess of the amount shown as payable - HELD THAT:- When the legislature usages two different expressions viz. 'duty' and ‘tax dues’, it is obviously done with a purpose. If the intention was that these expressions are interchangeable then the wording of Section 124(1) (a) FA would read differently. The tax dues in the present case referred to not just the duty amount, but duty plus interest or to put differently the total amount of duty payable which would include the main duty component and the interest component. This explains why under Section 123(a)(i) FA while defining the expression ‘tax dues’, the legislature has referred to “the total amount of duty which has been disputed”.
The Court is unable to agree the stand taken by the Department in the present case that notwithstanding the Petitioners having deposited already Rs.56,37,449/- as ‘tax dues’ as defined under Section 123(a) of the FA i.e., duty plus interest, it has still to pay a further sum of Rs.13,05,125/- for its application under the SVLDR Scheme to be considered - the impugned intimation dated 27th February, 2020 issued by the Joint Commissioner, GST & Central Excise Commissionerate, Bhubaneswar (Annexure-11) is hereby set aside and direction is issued to the Department to now take up for consideration the Petitioners’ application under the SVLDR Scheme without insisting on any further amount to be deposited by the Petitioners.
Petition disposed off.
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2023 (1) TMI 1142
Export of service - Place of performance / supply of service - Classification of services - Video Production Agency service or not - scope of Video Production Agency and Video-Tape Production - Palace of performance services on Goods - HELD THAT:- The inclusive leg of the definition pertains to the post-recording activity on video or transfer to another media by provider of service to qualify as ‘video-tape production’; there is no evidence that the material received by the respondent was recorded in video or that the respondent had, at any time, handled video as media.
The definition of an element contained in a particular ‘taxable service’ is not to be drawn upon, as a lexicon may be, for stretching of another service beyond legislatively intended limits. Even if it could, it would be a leap of faith by service tax authorities to conclude that visual dissemination is always of a ‘programme’ and, therefore, on ‘video’ as media. No evidence is forthcoming either that such is the case in the present factual matrix.
Export of services - Place of Provision of Service - HELD THAT:- It appears that service tax authorities have not appreciated the purpose, elucidated supra, and the context of Place of Provision of Service Rules, 2012. These Rules do not operate as a charging provision within the narrow field of taxing imports or exempting exports; they are intended for taxing all manner of services within the frame of section 66B of Finance Act, 1994. The Hon’ble Supreme Court, in ALL INDIA FEDERATION OF TAX PRACTITIONERS & ORS VERSUS UNION OF INDIA & ORS [2007 (8) TMI 1 - SUPREME COURT] has held levy under Finance Act, 1994 to be ‘destination-based consumption tax’ and, therefore, requiring consummation of the service to be linked to acknowledgement by recipient of the service. Consequently, by default, rule 3 of Place of Provision of Service Rules, 2012, holds the service to have been rendered at the place of the recipient and other rules substitute in specific circumstances.
The deviation in rule 4(a) of Place of Provision of Service Rules, 2012 and, considering the specific circumstance of determination by tangible presence, it would not be amenable to stretching for coverage of ‘deemed goods’, if any, owing to that limitation of pinpointing ‘service’ which is of essence in the said Rule.
The impugned order is sustained to the extent of determination that the respondent herein has exported services in accordance with Export of Service Rules, 2005 and rule 6A of Service Tax Rules, 1994 for the relevant periods - Appeal of Revenue dismissed.
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2023 (1) TMI 1141
SCN for recovery of tax - deemed recipient of service - service rendered in taxable territory owing to operation of rule 3 of Place of Provision of Service Rules, 2012 - HELD THAT:- It is trite that show cause notice proposes recovery that claims to be valid in accordance with specific provisions of the taxing statute and it is for the noticee to rely upon factual submissions and judicial decisions in its defence. The test of applicability of such decisions is not on record until raised in reply to notice; proceedings which accept such judgements as precedent may not necessarily have subjected the rigour of case law to contraindicated case law in the absence of rejoinder from tax authorities - Appeal is the first stage for countering the ‘precedent value’ and it has been placed on record by Learned Authorized Representative that contrary decisions are not only on similar facts but also that certain relevant judgments had not been considered in the decisions cited before the adjudicating authority by the assessee.
It would be appropriate for the original authority to take a fresh look at the facts that have not been subjected to detailed scrutiny for proximity to the several decisions cited by both sides - the impugned order is set aside in its entirety - direction to restore adjudication of show cause notice to the original authority with the direction that the judicial decisions and other submissions, if any, be disposed off after detailed consideration.
Application disposed off.
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2023 (1) TMI 1140
Refund - Excess amount deposited SVLDRS as Voluntary Disclosure Scheme - grievance of appellant is that the tax dues which were already paid by the appellant have not been adjusted by the designated authority - HELD THAT:- It is observed from the record of this appeal that this bench gave an opportunity to the appellant to submit Forms SVLDRS 1 to 4 so as to prove that he raised his disagreement before the designated authority but the appellant has filed SVLDRS-1, 3 and 4. SVLDRS- 2/SVLDRS-2B has not been placed on record. It becomes clear that appellant has failed to prove its disagreement to the amount quantified as payable by the designated authority. The disagreement has been the main contention of appellant’s argument, same stands totally unproved. Otherwise also, it being a case of voluntary disclosure, the appellant had to self assesse the payable amount in SVLDRS-1. The self declaration form has also not been produced by the appellant.
Rejection of refund in terms of Section 124(2) and 130 of Finance Act, 2019 - HELD THAT:- Since the tax liability for the period in question is actually either 70% or 50% higher than the amount estimated as payable under the scheme, any deposit prior payment of such estimated amount is made nonrefundable. In case of voluntary disclosure also it is an uncalculated amount as per tax payers’ choice which is declared and paid by the appellant. The liability of tax payer in such case is much more than what used to be mentioned in SVLDRS-1 under Voluntary Disclosure. Hence, there is no applicability of article 265 of the Constitution of India as is impressed upon by the appellant - there are no justifiable reason for ordering refund of the amount which was paid over and above the payable amount as estimated by the designated committee.
Appeal dismissed.
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2023 (1) TMI 1139
SSI Exemption - dummy companies/firms or not - clubbing of clearances - HELD THAT:- For the earlier period after detailed investigation and relying of various evidences, the adjudicating authority had confirmed the demand clubbing the clearance value of all other alleged dummy firms/ companies in the clearance value of the respondent. The same was challenged before this Tribunal, this Tribunal vide judgment reported at M/S. KICH INDUSTRIES AND OTHERS VERSUS CCE RAJKOT [2013 (9) TMI 650 - CESTAT AHMEDABAD] allowed the appeal of the respondent. In the present case, no fresh investigation has been carried out, only the earlier proceeding of the aforesaid case has been followed.
The Tribunal’s decision has been upheld by the Hon’ble Gujarat High Court in COMMISSIONER VERSUS KICH INDUSTRIES [2013 (10) TMI 1251 - GUJARAT HIGH COURT].
Revenue’s appeal is dismissed.
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2023 (1) TMI 1138
Maintainability of petition - failure to comply with pre-deposit requirement - availment of CENVAT Credit - telecom services in connection with telephones installed at homes of senior functionaries - air travel agent service for booking of airline tickets of senior officials - mandap keeper service for certain conventions and employee sessions - pandal/shamiana service for some functions and event management service - denial on the ground of nexus - HELD THAT:- Notices for recovery are issued under the authority of substantive and procedural provisions of Acts and Rules framed thereunder. A noticee is made aware of the detriment in judicial decisions only upon incorporation in the consequent adjudication orders and the specifics mandated in such decisions cited in the adjudication order could not have been factually countered except at the appellate stage. Opportunity had not been afforded to the appellant for doing so in the earlier round that was carried to the Tribunal for dismissal at threshold.
Doubtlessly, the appellant did not take advantage of the opportunity to present the applicability, or otherwise, of the decision in CCE VERSUS MANIKGARH CEMENT [2010 (10) TMI 10 - BOMBAY HIGH COURT] and their claim of the impugned order having been passed before they could so is not credible defence as the timelines had not been adhered to by them. Nonetheless, several judgments and decisions have been brought to our notice which, owing to lack of finding on fact by lower authorities, cannot be adjudged by us as conforming to, and proper in accordance with, law.
Appeals are allowed by way of remand to original authority.
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2023 (1) TMI 1137
Denial of benefit of Deemed Credit - It is the case of the revenue that appellants had received Cotton Printed Fabrics, therefore as per Explanation 3 to the said Notification benefit of said Notification cannot be extended to the appellants - HELD THAT:- From the finding of tribunal it is clear that the tribunal has given direction to verify the facts that Appellants have received grey fabrics or not if received grant the benefit of notifications. However ongoing through the finding of both adjudicating authority and documents submitted by the appellants we find that appellants have failed to produce authentic documents regarding the receipts of grey fabrics. No original copies of bills/ invoices and transport documents related to the receipts of grey fabrics are available with any of the appellant.
Further, ongoing through the relevant Explanation of the Notifications it is found that it has been expressly provided therein that, where processed fabrics itself is used as an input for further processing then, the provisions of the notification are not applicable.
The denial of deemed credit to the appellants by the lower authorities in absence of the proper documentary evidence appears to be prima facie correct. However, to meet the end of justice, one more opportunity can be given to the appellants for production of all the documents which prove that they had received the grey fabric and consequently eligible to deemed credit.
The matter may be reconsidered once again - Appeal allowed by way of remand.
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2023 (1) TMI 1136
Clandestine removal - PP Rolls/ Tubes - recovery of illicit documents from transporter - existence of evidence to indicate the involvement of the appellant in illicit clearance - HELD THAT:- The entire case was made out on the basis of certain LRs recovered from the transporters. The transporters stated in their statement that they used to supply the goods from Shreejee Packaging Company as well as some other companies also. All the LRs do not show the name of the appellant. However, in some of the LRs the name of the appellant is appearing.
As regard all the other transactions where the appellant’s name is not appearing, no other corroborative evidence was brought on record, therefore, in those cases demand cannot be sustained.
The demand of duty on the LRs where the appellant’s name is appearing which comes to Rs.57,222.17 is sustained and remaining demand of Rs.4,29,399 is not sustainable, hence the demand of Rs.4,29,399 is set aside. The appellant is liable to pay equal amount of penalty i.e. Rs.57,222.17 and interest thereon - Appeal allowed in part.
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2023 (1) TMI 1135
Denial of CENVAT Credit - input services - construction service - security service - maintenance and repair service - works contract service - manpower recruitment and supply service - it was contended by central excise authorities that such availment was not permissible under rule 3 of CENVAT Credit Rules, 2004 owing to non-conformity with the definition of input service in rule 2(l) of CENVAT Credit Rules, 2004 - HELD THAT:- From a plain reading of the germane definitions in CENVAT Credit Rules, 2004, it is found that the distinction drawn between input and input service for deploying the expression whether directly or indirectly also appears to have been overlooked by central excise authorities. The relevance of the expression in the latter, by reason of intangibility and solely for manufacturing entities, is crucial enough to be the essence of the test for conformity to the definition. Most services will not be amenable to direct use, and absorption, in the manufacture of goods; neither would these be clearly discernable in the product that emerges. The principle of nexus of service should not, therefore, restrict itself to direct use but should encompass indirect deployment and, hence, should be examined also in relation to the main leg of the definition.
The lack of finding in the impugned order on the applicability of the main leg of the definition and its nexus with the final output hinders the exercise of appellate determination. It would be appropriate to have that undertaken to enable which we set aside the impugned order and restore the proceedings before the original authority to take note of the submissions of the appellant herein on the direct/indirect use of the impugned services procured by the appellant and determine nexus or lack thereof.
Appeal allowed by way of remand.
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2023 (1) TMI 1134
Levy of Sales tax liability - Transportation charges/freight charges - freight charges forms part of the “sale price” as per Section 2(xlviii) of the JVAT Act or not - the claim of the revenue is that separate invoices for transportation cost would not be a ground to deduct from the total GTO and that there is no illegality in the order of the tax authorities - HELD THAT:- It appears that in the present facts of the case the Petitioner performs a dual role, one as the seller of the goods and other as carrier of the goods, having collected freight charges separately from the buyer. Clause (3) of the purchase order (Annexure-4 series) specifically indicates that the freight will be payable at actual; meaning thereby, the price of the goods is not inclusive of the transportation cost/freight.
The freight charges were recovered by the petitioner in the capacity as carrier of the goods and did not form part of the sales turnover of the petitioner. Even as per purchase order if the goods are delivered to SMD Jamshedpur, the same needs to be delivered free of delivery charges. Thus, the real intention can also be gathered by the Act of the seller and buyer.
After going through the orders passed by the tax authorities it appears that the tax authorities as well as the learned tribunal misdirected themselves in reading only Explanation-II to Section 2(xlviii) of the JVAT Act and ignored Explanation-III which categorically indicates that the sale price shall not include the cost for transport of goods from the seller to the buyer provided such cost is separately charged to the buyer. Thus the orders of tax authorities as well as the learned tribunal suffer from illegality and incorrect application of the provision of the JVAT Act to the facts of the present case.
The matter is remitted back to the Deputy Commissioner of Commercial Taxes, Singhbhum Circle, Jamshedpur to pass a fresh order on the claim of the petitioner to the extent it relates to freight charges realized by the petitioner from its purchasers and shown and charged separately in the invoices after considering the materials and after hearing the petitioner - Application allowed.
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2023 (1) TMI 1133
Seeking waiver of tax on the steel purchased which according to the petitioner was not converted into grills - It is the case of the petitioner that there was no conversion of steel purchased, because, the steel was used as such and since the steel was purchased from a registered dealer within the State, it could not be subjected to tax once again - scope for interference / judicial review of an order of Tribunal - HELD THAT:- The petitioner was engaged in civil contract work. Thus, the petitioner would have been liable to tax under Section 3-B of the Tamil Nadu General Sales Tax Act, 1959 as a works contractor.
The facts on record indicate that the petitioner had declared the total of Rs.62,63,932/- and taxable turnover of Rs.35,00,132/- in his return. However, the taxable turnover was re-determined as Rs.39,93,764/- by the Assessing Officer. The Assessing Officer namely, the third respondent has treated the Steel purchased by the petitioner as sale of Steel Grills liable to tax under Section 3-B of the TNGST Act, 1959 - As per Section 3-B(2)(b) of the Tamil Nadu General Sales Tax Act, 1959, the taxable turnover of a dealer for the transfer of property involved in the execution of works contract shall be arrived after deducting the value of goods used in the execution of works contract which were purchased from a registered dealer and were liable to pay tax at the rate specified in the First Schedule or the Second Schedule of the Act.
The Tribunal has not committed any error while reversing the decision of the second respondent Appellate Assistant Commissioner as the petitioner did not produce any documents to substantiate that the steel that was purchased from a registered dealer within the State of Tamil Nadu was not used in the execution of works contract.
Further, the scope for interference / judicial review of an order of Tribunal is very limited. Unless the order suffers from violation of principle of natural justice or is found to be ex-facie perverse or arbitrary, the Writ Petition ought not to have been entertained. The impugned order passed by the Tribunal does not suffer from any infirmity and cannot be set aside.
Petition dismissed.
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2023 (1) TMI 1132
Dishonor of Cheque - income tax officer can be called as a witness on an application filed by the present petitioners/original accused in a proceeding under Section 138 of the Negotiable Instruments Act or not? - HELD THAT:- This Court finds that the accused had right to establish his case and for that purpose he can certainly make a prayer for summoning a witness. It is specific case of the accused that he suspects that the copies of the balance-sheet and the ITR filed by the complainant on record are not genuine. It is for that reason, he has filed an application praying for summons to the proper authority so that the copies of the documents, which are actually submitted to the authorities would be produced on record.
This Court finds that the application ought to have been allowed by the learned trial Judge and while dismissing such application, erred in holding that under Section 91 of the Cr.P.C., the matter was not for deciding authenticity of any document. It was necessary to consider that when the defense wants to examine the officer and wants to rely upon the documents which are submitted by the complainant to the authorities, it was necessary to allow the same considering that the accused has right to prove his case.
This Court finds that a case is made out to call for interference by entertaining a Writ Petition. The Writ Petition is therefore, allowed.
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2023 (1) TMI 1131
Realization of its Input Tax Credit (ITC) in the electronic credit ledger of the petitioner as for the Financial Year 2018-19 last date for availing ITC as per provisions under Section 16(4) of Jharkhand Goods & Service Act, 2017 - violation of Section 16(4) of JGST Act, 2017 or not - violation of principles of natural justice or not - HELD THAT:- It appears that a show cause notice under Section 73(1) of the Act dated 12.02.2022 (Annexure-1) was issued to the petitioner which was issued in a format without striking out the irrelevant particulars and thus, there won’t be an exaggeration in treating the same as vague as it does not spell out the contraventions for which the petitioner is charged. As a matter of fact, it is worse than the summary of show cause notice issued under FORM GST DRC-01 of the even date (Annexure-2). It further transpires that without giving any opportunity of hearing State Tax Officer was in so hurry, that he finally issued summary of order in FORM GST DRC-07 on 17.02.2022 (Annexure-3); that means just within five days from issuance of show cause.
Now the law is no more res integra, inasmuch as, Rule 142(1) (a) of the JGST Rules provides that the summary of show cause notice in Form DRC-01 should be issued “along with” the show cause notice under Section 73(1) which will spell out the contraventions in details for which the Assessee is charged. The word “along with” clearly indicates that in a given case show cause notice as well as summary thereof both have to be issued. As per Rule 142(1)(a) of the JGST Rules, the summary of show cause notice has to be issued electronically to keep track of the proceeding initiated against the registered person whereas a show cause notice need not necessarily be issued electronically.
This Court holds that the foundation of the proceeding in the instant case suffers from material irregularity and hence not sustainable being contrary to Section 73 (1) of the JGST Act. Thus, the subsequent proceedings/impugned orders issued under DRC-07 dated 17.02.2022 cannot sanctify the same and liable to be quashed and set aside. At the cost of repetition, DRC-07 has been issued within five days of issuance of DRC-01 is a clear picture of violation of principles of natural justice.
The impugned show cause notice in the instant case does not fulfill the ingredients of a proper show cause notice and thus amounts to violation of principles of natural justice; the challenge is maintainable in exercise of writ jurisdiction of this Court - Application allowed.
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2023 (1) TMI 1130
Cancellation of their respective GST Registrations of petitioners - cancellation on the ground that the said appeals were filed beyond the maximum time limit stipulated under section 107 of GST Act - Difference of opinion.
HELD THAT:- While dealing with the very same issue, one of the Hon'ble Single Judges of this Court (Anita Sumanth, J.) in MR. PANDIDORAI SETHUPATHI RAJA VERSUS THE SUPERINTENDENT OF CENTRAL TAX, CHENNAI [2022 (12) TMI 1028 - MADRAS HIGH COURT] held that this Court is having the power to condone the delay in filing the appeal under section 107 of the GST Act under certain extraordinary circumstances mentioned in the said order. However, another Hon'ble Judge of this Court in HEMASRI ENTERPRISES REPRESENTED BY ITS PROPRIETOR SAKTHI NARAYANAN VERSUS THE APPELLATE AUTHORITY / THE DEPUTY COMMISSIONER (ST) (FAC) GST-APPEAL, CHENNAI-II, THE ASSISTANT COMMISSIONER (ST) [2022 (12) TMI 705 - MADRAS HIGH COURT] and RAMANUJAN VENKATESAN VERSUS THE JOINT COMMISSIONER (APPEALS- II) O/O. OFFICER OF COMMISSIONER OF GST AND CENTRAL EXCISE (APPEALS- II), THE DEPUTY COMMISSIONER, GST AND CENTRAL EXCISE, O/O. CHENNAI OUTER COMMISSIONERATE, THE SUPERINTENDENT GST AND CENTRAL EXCISE, O/O. CHENNAI OUTER COMMISSIONERATE [2023 (1) TMI 436 - MADRAS HIGH COURT] has held that this Court while exercising powers under Article 226 of the Constitution of India, does not have the power to condone the delay when the statutory appeal filed under section 107 of the GST Act is beyond the maximum time limit stipulated in the said section.
Since there are two contradictory views expressed by two Hon'ble Judges of this Court, Judicial Discipline and Propriety demands that, the matter is referred to a Division Bench of this Court.
The point of reference to the Division Bench is as follows:
Whether the view taken by the Hon'ble Single Judge (Anita Sumanth, J.) in her decision dated 16.11.2022 in the case of Pandidorai Sethupathi Raja
or
the view taken by another Hon'ble Single Judge (M.Sundar, J.) in his decisions (a) Hemasri Enterprises vs. The Appellate Authority / The Deputy Commissioner and (b) Ramunajan Venkatesan vs. The Joint Commissioner (Appeals-II) is correct.
Registry is directed to immediately place this matter before My Lord, the Hon'ble Acting Chief Justice of this Court for getting suitable orders for posting these writ petitions before the appropriate Division Bench nominated by him for early hearing of these writ petitions.
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2023 (1) TMI 1129
Detention of goods alongwith vehicle - whether section 129(3) of the Central Goods and Services Tax Act, 2017 was adhered to by the respondents or not? - HELD THAT:- As seen from section 129(3) of the Central Goods and Services Tax Act, 2017, the proper officer after detaining the goods or conveyance shall issue a notice of such detention or seizure specifying the penalty payable and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment of penalty under clause (a) or clause (b) of Sub-Section (1) of Section 129.
In the instant case, after detaining the petitioner's vehicle and the goods on 26.10.2022, notice was issued by the respondents on 31.10.2022 within seven days from the date of detention. However, the consequential order for payment of penalty was passed only on 10.11.2022 which is beyond the period of seven days from the date of service of notice on the petitioner. Having passed the impugned order beyond the period of seven days from the date of service of notice on the petitioner which is contrary to section 129(3) of the CGST Act, 2017, the impugned orders have to be necessarily quashed and the writ petitions will have to be allowed.
The impugned detention order dated 31.10.2022 as well as the impugned consequential order dated 10.11.2022 are hereby quashed and the writ petitions are allowed.
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2023 (1) TMI 1128
Confiscation of goods u/s 130 - Levy of penalty - goods in question were supported by valid documents - whether warrant exists for initiation, continuation and conclusion of proceedings under Section 130 of the CGST/SGST Acts or not? - HELD THAT:- The undisputed facts of the case are that the 2nd petitioner was carrying certain gold ornaments in a train from Thrissur to Alleppy. He was initially intercepted by the officials attached to the Railway Protection Force and the 2nd petitioner was able to only shown certain documents on his mobile phone, which according to the petitioners, suggest that the gold ornaments were being carried in a valid manner and in accordance with all the requirements of the CGST/SGST Acts and the Rules made thereunder.
The contention of the learned counsel appearing for the petitioners that the 2nd petitioner had forgotten to hand over about 100 gms of gold, which was being carried in his pocket, cannot be accepted, at least at this stage. The fact that there was discrepancy in the quantity in the documents stated to have been produced and the quantity recovered from the 2nd petitioner itself, is sufficient for the Department to suspect the evasion of tax. There are nothing found on merits regarding the order of adjudication issued by the 2nd respondent under Section 130 of the CGST/SGST Acts for the reason that it would not be proper to do so, considering the fact that the petitioners have appellate remedies against Ext.P18 order.
There was no malice or ill-will or lack of jurisdiction in initiating proceedings under Section 130 of the CGST/SGST Acts - petition dismissed.
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2023 (1) TMI 1127
Betting/gambling - Actionable claim - whether nature of gaming services as provided by it is in the nature of services or an actionable claim or not? - HELD THAT:- A Division Bench of this Court in CHANDRESH SANKHLA VERSUS THE STATE OF RAJASTHAN AND OTHERS [2020 (2) TMI 1062 - RAJASTHAN HIGH COURT] in respect of a similar company Dream11 which also provided gaming services online held that the issue is no longer res-integra and as such gaming services are not in the nature of betting/gambling.
Some of the games offered by the petitioners online have already been held to be games of skill rather than that of chance or that of betting/gambling. Thus when the matter is so settled by various Courts, the issuance of the impugned show cause notice is nothing but an abuse of the process of law.
Accordingly, we call upon the respondents to file counter affidavit to the writ petition within a period of one month from today.
The writ petition is directed to be listed for admission/final disposal immediately thereafter.
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9911796707
