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Showing 401 to 420 of 1445 Records
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2024 (3) TMI 1045
Classification of service - Business Auxiliary Service - Business Support Service - Intermediary - it was held by CESTAT that The appellant does not satisfy the conditions to be an ‘intermediary’ for his services and as such, the impugned order 08.07.2019 cannot sustain and is required to be set aside - HELD THAT:- The respondent-Company does not fall within the scope and ambit of any of the aforesaid definitions. This is having regard to the scope of its mandate to act on behalf of the principal namely primark.
Appeal dismissed.
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2024 (3) TMI 1044
Classification of services - Clearing and Forwarding Agents or not - testing the quality of silk received from the reelers and stock it for being sold in open auction to various agencies like the appellant, Handloom Silk Weavers Cooperative Societies and Twisters - HELD THAT:- The facts of the present case are more or less akin to the facts of THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. THE SALEM STARCH & MANUFACTURERS SERVICE INDUSTRIAL CO-OPERATIVE SOCIETY LIMITED [2013 (8) TMI 296 - MADRAS HIGH COURT], wherein also the Hon'ble High Court has held that there is no question of clearing and forwarding agents service involved and consequently there was no liability to service tax under the said category.
The demand of service tax on the appellant under the category of ‘Clearing and Forwarding Agents’ Service is not sustainable, for which reason, the impugned order cannot sustain - the impugned order set aside - appeal allowed.
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2024 (3) TMI 1043
Declared Service or not - agreement entered by the respondent-assessee with M/s. Syngenta India Limited for job work and were entitled to receive a variable costs and a fixed cost from M/s. Syngenta India Limited - falling under the categories of service “agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act”, or not - clause (e) of Section 66E of the Finance Act, 1994 - HELD THAT:- On perusal of record as well as the agreement for job work, it is found that the agreement is primarily for undertaking job work for manufacturing various pesticides and the payment schedule for both, fixed as well as variable payment for manufacture of pesticides.
It can be seen from the schedule produced that payment for the job work for manufacturing of various kinds of pesticides has two components, firstly fixed charges per month of Rs. 16 Lacs and fixed charges up to 1500MT of per kg. basis at the rate of Rs. 5.7 per kg. for formulation and secondly for manufacturing of pesticides of above 1500MT variable rates has been given as provided - It can be seen that the agreement is primarily for manufacturing of pesticides by respondent-assessee on job work basis. The first category of the fixed charges which is at the rate of Rs. 16 Lacs per month is an integral part of the job work manufacturing charges i.e. primarily for the purpose of keeping the confidentiality of the formulation of the M/s. Syngenta India Limited and same cannot be considered separately from the job work agreement.
The fixed cost which are being paid to the respondent-assessee do not fall under Declared Service category as mentioned under Section 66E(e) and the amount which is paid to the respondent-assessee is primarily for manufacturing cost undertaken by them on job work basis.
It is an accepted legal position that the agreement has to be considered in its entirety for the purpose of levy of service tax since the agreement is primarily for undertaking job work for manufacturing various kinds of pesticides and therefore, even if the payment for the job work is made in two types namely one as fixed and another is at variable cost, this fact will not change the nature of the agreement and same is to be considered as job work manufacturing agreement - the department’s stand that fixed component of the payment for the job work category under the declared service under Section 66E is not sustainable.
The impugned order-in-original is legally sustainable - appeal is dismissed.
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2024 (3) TMI 1042
Rejection of refund claim on the ground of unjust enrichment - amount has been rightly credited to the Consumer Welfare Fund or not - Section 11 B of the Central Excise Act, 1944 - HELD THAT:- The reasons for rejecting is that in terms of Section 11B of the Act, 1944, the appellant was required to submit such documentary or other evidences so as to establish that the amount of duty and interest, if any, and the incidence of such duty had not been passed on by him to any other person - Both, the Adjudicating Authority and the Appellate Authority had specifically noted that either the appellant had not produced the documents or had only submitted the photocopies of the Ledger Account and invoices.
The refund claim filed by the appellant includes the amount of Rs.7,24,463/- excess paid under the category of ‘Management, Maintenance & Repair Services’. As the refund claim is found to be hit by unjust enrichment clause for want of requisite documents, an opportunity may be granted to the appellant to produce the documents and other evidences proving that the incidence of duty has not been passed on either directly or indirectly to the service receiver.
The matter is remanded to the Adjudicating Authority, granting liberty to the appellant to substantiate that the claim is not hit by unjust enrichment in the light of the documents produced - Appeal allowed by way of remand.
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2024 (3) TMI 1041
Liability of service tax on the alleged differential amount - It appeared to Revenue that Appellant have declared income of Rs.1,07,38,534/- in the income tax return for the financial year 2015–16 whereas they have declared gross receipt of Rs.50,27,482/- in their half yearly service tax return - whether the Commissioner (Appeals) have rightly set aside the Adjudication Order by which the Adjudicating Authority have dropped the proposal of service tax in the show cause notice? - HELD THAT:- The grounds of appeal before the Commissioner (Appeals) raised by Revenue are wholly vague. No exact Rule is pointed out of the POPS Rules which have been violated - it is found that the allegation that the Adjudicating Authority did not examine the services provided to the other 3 foreign companies other than Mavensoft Technology as their names are not mentioned in the Adjudication Order in contrary to the finding of the Original Authority.
The Commissioner (Appeals) have just raised some doubts and without any categorical adverse finding, have been pleased to set aside the Adjudication order. It is found that the impugned order is cryptic and nonspeaking.
The impugned Order-in-Appeal is set aside - the Order-in-Original is restored - appeal allowed.
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2024 (3) TMI 1040
CENVAT Credit - trading was exempted service - common input services used by the appellant towards manufacture of the goods, providing taxable service and also providing trading - HELD THAT:- It can be seen that mention of trading as exempted service appeared in Chapter V of Finance Act, 1994 for the first time with effect from 01.04.2011. The present demand is for the period prior to 01.04.2011. Therefore, the definition of exempted services with effect from 01.04.2011 is not applicable to the period of the present show cause notice. During the period of present show cause notice, there was no whisper of trading in Chapter V of Finance Act, 1994 which deals with the provisions of law related to levy of service tax.
There was no provision of law for disallowance of cenvat credit availed on service tax paid on input services which also were utilized for trading activity during the relevant period - part of the impugned order through which cenvat credit of Rs.1,97,62,992/- was disallowed is set aside. Once the said cenvat credit is held to be admissible, then there is no question of short payment of service tax as held in the impugned order.
The impugned order set aside - appeal allowed.
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2024 (3) TMI 1039
CENVAT Credit - input service availed by the appellant at the depot level - nexus with the manufacture of the excisable goods either directly or indirectly in or in relation to the manufacture of the final product and clearance of the final product up to the place of removal - Rule 2 (L) of Cenvat Credit Rule, 2004 - time limitation - HELD THAT:- The appellant has appointed C & F agents for receiving the consignment of the goods manufactured by them and they were storing the goods on behalf of the appellant at various depots. The goods were further sold/distributed to their ultimate buyers as per the orders received by such C & F agent from the appellant - the contention made by the appellants that the ownership of the goods which were cleared from the factory has remained with them up to depot or the warehouse of the consignment agent (who was working on their behalf ) and actual sale of the goods have taken place from such depos, agreed upon.
It can be seen from the definition of the place of removal that if the goods are actually sold to an independent buyer from depot of the consignment agent, the place of removal of the excisable goods will be such premises of the consignment agent or depot of the manufacturer. Since all the cost incurred up to the place of removal will be integral part of the price and therefore, all the input and input services which are received up to the place of removal of the manufactured goods, the assesse becomes entitled for credit of the same as per the provisions of the CENVAT Credit Rules.
Thus, the appellant are entitled for input, input service credited up to the place of removal which is in this case is the depot or consignment agent premises.
Time Limitation - HELD THAT:- For the period July, 2010 to May, 2013 the impugned show cause notice has been issued on 20 July, 2015 invoking extended time proviso under Section 11A of Central Excise 1944 read with Rule 2014 of CENVAT Credit Rule, 2004. The fact that CENVAT Credit of Service Tax was availed by the appellant on the strength of proper duty paying documents and all the transaction have been mentioned in the statutory books of account maintained by the appellant, also noted. The Cenvat Credit of input services are reflected in the monthly return in the form of ER-1 of the appellant. In that circumstances there are no ground on the part of the department to allege suppression of facts or willful mis-statement and therefore the demand beyond normal period of limitation is certainly time barred.
The impugned order set aside - appeal allowed.
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2024 (3) TMI 1038
CENVAT Credit - input services - Construction Service - Rent a cab Service - Outdoor Catering (Canteen) Service - Services used by the Head Office (ISD) - C&F and Cargo Handling Service - applicability of Notification No. 3/2011-CE dated 01.03.2011 - invocation of extended period of limitation.
Construction Service - Denial on account of lack of nexus between the construction services and manufacturing of the goods - HELD THAT:- The construction relates to the setting up of the factory which in turn, is directly used for manufacturing and is directly covers under the inclusive part of the definition of ‘input service’. Moreover, during the relevant period, construction service was included in the definition of ‘input service’ and it is only after 01.04.2011 that it has been specifically excluded from it - the construction service, during the relevant time, was within the definition of ‘input service’ and therefore, the appellant is entitled to Cenvat Credit of the same.
Rent a cab Service - Credit denied only on the ground that this service is not used in relation to the manufacture of the product and the cost of the same has been recovered from the employees - HELD THAT:- Rent a cab service has been mainly used for official purposes and the same relates to the business of the appellant. Here it is noted that a part of the cost of this service is recovered from the employees and as per the appellant, only 20% of it, is recovered from the employees and the same has been reversed along with interest and 80% is absorbed in the manufacturing cost. Accordingly, the appellant is entitled to avail 80% of the cost of this service and the Original Authority is directed to verify the quantum of Cenvat Credit reversed by the appellant as claimed by them. On principle, the appellant is entitled to avail Cenvat Credit on this service.
Outdoor Catering (Canteen) Service - credit denied on account of the fact that it is not related to the manufacture of the product and the same is recovered from the employees - HELD THAT:- It is a statutory requirement to provide this facility to the employees as required under the Factories Act and moreover, it enhances the productivity of the employees, which is indirectly related to the manufacture of the final products - As regards the submissions of the appellant that they have only recovered 30% of its cost from the employees and the same has been reversed along with interest, this fact of reversal needs to be verified by the Original Authority and for this purpose, the case is remanded back to the Adjudicating Authority to verify the same.
Services used by the Head Office (ISD) - HELD THAT:- Cenvat Credit in respect of courier service, mandap keeper service, event management, cargo handling and C&F service has been denied on the ground that the same is not in relation to manufacturing activities of the appellant and hence, the same is not admissible - the Tribunal in the case of M/S. ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE C.R. BANGALORE [2016 (8) TMI 8 - CESTAT BANGALORE] after following the decision of the Hon’ble Karnataka High Court in COMMISSIONER OF C. EX., BANGALORE-I VERSUS ECOF INDUSTRIES PVT. LTD. [2011 (2) TMI 1130 - KARNATAKA HIGH COURT], has held that the assessee is entitled to Cenvat Credit of service tax as distributed by the ISD - the appellant is entitled to Cenvat Credit with regard to these services.
C&F and Cargo Handling Service - HELD THAT:- The definition of ‘place of removal’ as provided under Section 4(3)(c) of the Act inter alia includes depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory. Further, C&F and Cargo services are used for the purpose of unloading, storing, accounting and thereafter dispatch of the goods to the specified dealers on ‘FOR’ basis. In this regard, the learned Counsel for the appellant also referred to certain invoices issued by the appellant to prove that all the goods were supplied ‘FOR’ upto the place of buyer’s premises, entire risk is borne by the appellant and therefore, all the expenses incurred by the C&F agent, on which service tax is charged, will fall within the definition of ‘input service’ - the appellant is entitled to Cenvat Credit of service tax regarding C&F expenses.
Invocation of extended period of limitation - HELD THAT:- The Revenue has not brought anything on record to satisfy the ingredient for invoking the extended period of limitation as the appellant was subjected to regular audit and the Department was aware of the fact that the appellant is availing Cenvat Credit of tax paid on input service and therefore, substantial demand in this case is barred by limitation.
The impugned order is not sustainable in law and therefore, the same is set aside - with regard to the services of ‘Rent a cab service’ and ‘Outdoor catering service’ the Original Authority will verify the quantum of reversal made by the appellant; and for this limited purpose, the matter is remanded back to the Original Authority - appeal allowed in part and part matter on remand.
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2024 (3) TMI 1037
Clandestine manufacture and removal - 47658 M.T. of Pig Iron - demand worked out based on the details available in the computer print-out recovered from the premises of the Appellants office and premises associated with them and the statements recorded from the concerned persons - evidentiary value of the computer print-outs - admissible evidences or not - procedure as set out in Section 9D of the Central Excise Act, 1944 was followed in this case or not - reliability of statements recorded under Section 14 of the Central Excise Act, 1944 - penalty on the Appellant companies and it's Director, on the basis of the evidences available on record.
Whether the computer printouts taken from the pen drives recovered during the search can be relied upon as evidence to demand duty? - Whether the conditions mentioned in Section 36B has been followed in this case or not, to rely upon the computer printouts as evidence? - HELD THAT:- The procedure prescribed in Section 36B must be followed to rely on the computer sheets as evidence. It is observed that the department has not followed the procedure prescribed in Section 36B. The author of the entries made in the computer has not been identified. The certificate as prescribed under Section 36B(4) has not been obtained. Hence, the computer sheets recovered from the pen drives cannot be relied upon to arrive at clandestine clearance - As the department has not followed the mandate under section 36B, the data recovered from the print outs available in the computer sheets cannot be relied upon to work out the duty liability on the allegation of clandestine removal. Accordingly, the answer to the question are in the negative.
Whether the procedure as set out in Section 9D of the Central Excise Act, 1944 was followed in this case or not? - If not followed, then whether the statements recorded under Section 14 of the Central Excise Act, 1944 can be relied upon to demand duty? - HELD THAT:- The adjudicating authority has not followed the procedure prescribed under Section 9D, accordingly, the statements cannot be relied upon to confirm the demands. Thus, the answer to question is in the negative.
Whether the demands confirmed in the impugned order on clandestine clearance of finished goods is sustainable in the absence of any evidence of procurement of the major raw materials or sale of the finished goods clandestinely? - HELD THAT:- There is no evidence of clandestine removal, purchase and consumption of unaccounted raw materials, discrepancy between recorded stock and physical stock, seizure of any goods, consumption of excess electricity, actual clandestine removal of finished goods without payment of duty, mode of removal, evidence of transporters and buyers of the clandestinely removed goods and flow back of funds pertaining to clandestine removals have been brought on record in this case. Without having any such tangible evidence, clandestine manufacture and clearance of goods cannot be sustained on the basis of mere assumptions and presumptions. Accordingly, the demand confirmed in the impugned order is not sustainable. Thus, the answer to question is in the negative.
Whether penalty is imposable on the Appellant company and it's Director, on the basis of the evidences available on record? - HELD THAT:- The allegation of clandestine removal against the appellant-company is not sustainable. Accordingly, the role of Director of the appellant-company in the alleged clandestine clearance is not established. It is also observed that no benefit of the alleged illegal activities have accrued to the Director. Therefore, the penalty imposed on the Director of the appellant under Rule 26 of the Central Excise Rules, 2002 is not sustainable and the same is set aside. Thus, the answer is in the negative.
The demand of duty confirmed in the impugned order is not sustainable. The demand of interest and penalty imposed on the Appellants are also not sustainable - Appeal allowed.
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2024 (3) TMI 1036
Time Limitation - classification of goods - Bio-fertilizers - Single Micronutrients - Multi-micronutrients/ Micronutrient mixtures and Plant Growth Regulators (PGR) - HELD THAT:- Having regard to the observations and submissions of the learned AR, as also the arguments made by the learned Advocate for the appellants, in the interest of justice, the issue of classification needs to be remanded back where the Original Authority will give them full opportunity to explain their case and also take into account the statutory provisions as well as the case laws cited by the appellant.
The dispute of classification with respect to all the four products to the Original Adjudicating Authority is remanded to reconsider the same. The Adjudicating Authority shall also provide crossexamination of the Chemical Examiner, if prayed by the Appellants. Further, after hearing the appellants and examining the evidences produced, the Adjudicating Authority shall pass a reasoned order in accordance with law for the normal period.
Penalties et aside - the Appeal is allowed in part and remanded in part.
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2024 (3) TMI 1035
CENVAT Credit - exempt goods or not - zinc dross which emerged during the manufacture of final product of the appellant, due to the galvanizing process involved in the said manufacturing process - HELD THAT:- The issue is no more res-integra. It was initially taken up by High Court of Mumbai in the case of HINDALCO INDUSTRIES LIMITED VERSUS THE UNION OF INDIA, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2014 (12) TMI 657 - BOMBAY HIGH COURT] wherein it was held that the dross and skimming of aluminium, zinc or other non-ferrous metals since emerges as waste, that the zinc dross and zinc ash cannot be treated as excisable commodities. Subsequent to the said decision, the Hon’ble Supreme Court had again took up the issue in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] holding that the waste products (Baggasse in the said case) emerging during the manufacturing process of the final product are not the outcome of any process which can be termed as manufacture. Thus, such waste products cannot be categorized as exempted goods. Hence question of applicability of Cenvat Credit Rules does not at all arise.
Commissioner (Appeals) in the present case is observed to still have followed the said rescinded Circular dated 25.04.2016. The said act of the adjudicating authority not merely amounts to mis-interpretation of the provision, but it amounts to the violation of statutory principles, the circular dated 07.07.2022 being binding upon him. The ignorance of law laid down by the Hon’ble Supreme Court is a condemnable act of judicial indiscipline.
The order passed by the Commissioner (Appeals) is held not sustainable and the same is hereby set aside - Appeal allowed.
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2024 (3) TMI 1034
Exemption under N/N. 214/1986-CE dated 25.03.1986 - manufacture of Metallic Canisters falling under Tariff Heading No. 84799090 on job work basis - HELD THAT:- The principle of judicial discipline requires a lower judicial/ quasi-judicial authority to follow the ratio of the decision by a higher judicial/quasi-judicial authority. The Commissioner (Appeals) has just done that. This principle was explained at length in Supreme Court decision in UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [1991 (9) TMI 72 - SUPREME COURT] where it was held that In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same officer.
It is found that this appeal has been filed by the Revenue on the basis of an order passed by the Committee of Commissioners contrary to the principles of judicial discipline as laid down by the Supreme Court in Kamlakshi Finance Corporation Ltd.
The appeal is dismissed.
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2024 (3) TMI 1033
Rate of the State sales tax on silk fabrics - taxable at 4% or 12%? - demand made for the period between 15th January 2000 and 31st March 2000 - HELD THAT:- During the said period, silk fabric was a part of Schedule I of the DST Act, on which sales tax was leviable at the rate of 12%. Sections 14 and 15 of the Central Sales Tax Act were deleted by Act No. 18 of 2017. Section 14, before its deletion, declared certain goods specified therein as of special importance in inter-state trade or commerce. Until 11th May 1968, item (xi) was incorporated in Section 14, which covered the item of “silk sarees”. However, with effect from 11th May 1968, the said item was deleted by Act No. 19 of 1968.
Section 15(1) of the CST Act, as existed during the period for which the impugned assessment was made, provided that the local sales tax rate on declared goods should not exceed 4% of the sale or purchase price of such goods. So long as the silk fabric was a part of the list of declared goods under Section 14 of the CST Act, the sales tax levy under the DST Act could not have exceeded 4% in view of Section 15(1) of the CST Act. However, silk fabric was deleted from the list contained in Section 14 of the CST Act, effective 11 May 1968. Therefore, during the relevant period for which the impugned assessment order was issued, as silk fabric was not a part of the list under Section 14, there was no embargo on levying sales tax on silk fabric at a rate exceeding 4%. Therefore, the argument based on Section 15(1) of the CST Act will not help the appellant.
The second Schedule of the ADE Act provides that during each financial year, each State shall be paid a certain percentage of net proceeds of the additional duties levied and collected during the financial year in respect of the goods described in column (3) of Schedule I. However, no additional duty was made payable on silk fabric under the ADE Act. The proviso makes it clear that notwithstanding the ADE Act, there is no bar on the States levying sales tax - the argument that as silk fabric formed a part of Schedule I of the ADE Act, it disentitled the State Government from levying sales tax is fallacious and cannot be accepted.
The High Court has noted that its Co-ordinate Bench in the case of MR. TOBACCO PVT. LTD. VERSUS UNION OF INDIA AND OTHERS [2006 (1) TMI 567 - DELHI HIGH COURT] upheld the validity of notification dated 31st March 2000 issued under the DST Act.
There are no error in the view taken by the Delhi High Court in the impugned judgment - Accordingly, the appeal is dismissed.
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2024 (3) TMI 1032
Settlement of dues - determination of tax liability under the M.P. Sales Tax Act, M.P. Vat Tax Act, Central Sales Tax Act and Entry Tax Act - HELD THAT:- It is informed that proceedings under the SICA Act were concluded by the order passed by the Board for Industrial and Financial Reconstruction (BIFR) on 28.01.2024. A copy of the order dated 28.01.2014 is placed and it evidences that the issue relating to the tax claim by the State of Madhya Pradesh has attained finality.
In view of the representation of the Government of Madhya Pradesh in the above referred order of BIFR that the Company had settled their dues, followed by the final direction of the BIFR, that Government need not attend further hearings, nothing remains for consideration in these appeals.
Appeal disposed off.
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2024 (3) TMI 1031
Review petition - Issuance of sales certificate with regard to the sales tax dues - Registration of a Sale Certificate issued in favor of one party for a property purchased in an auction held by another party under the SARFAESI Act. - HELD THAT:- Reliance placed on the decision of the Supreme Court in Tamil Nadu Electricity Board and Another v/s. N Raju Reddiar and Another [1996 (12) TMI 348 - SUPREME COURT] wherein the Supreme Court has deprecated the practice of litigants engaging a fresh set of Advocates to file and also argue matters in Review proceedings, without obtaining the consent of the Advocate who had appeared at the original stage.
In the above case, the Supreme Court dismissed the Review Petition with exemplary costs - the present case is not different and would completely fall in the nature of the proceedings which have been deprecated by the Supreme Court in the above judgement.
The Review Petition is accordingly dismissed with costs of Rs. 50,000/- to be deposited by the Petitioner, within a period of four weeks from today, with the Maharashtra Legal Services Authority. In the event, if such costs are not deposited, the Maharashtra Legal Services Authority shall take further steps to recover the said costs as arrears of land revenue.
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2024 (3) TMI 1030
Violation of principles of natural justice - petitioner was not provided a reasonable opportunity - petitioner states that proceedings were initiated and that the petitioner could not participate in such proceedings on account of being unaware of the same until such proceedings culminated in the impugned order - HELD THAT:- The position taken by the petitioner is that the entire tax liability has arisen on account of an inadvertent error committed while filing the GSTR 1 return for October 2019. It is further stated that such error was corrected by filing the GSTR 3B and GSTR 9 returns. The entire amount due and payable under the impugned order was appropriated from the petitioner's bank account. Therefore, at this juncture, revenue interest is fully secured. In these circumstances, it is just and necessary to provide the petitioner an opportunity.
The impugned order is quashed and the matter is remanded to the respondent for reconsideration. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of two months from the date of receipt of a copy of this order.
Petition disposed off.
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2024 (3) TMI 1029
Refund claim - Period of limitation - Double Taxation - The respondent had also paid tax on the same invoices. - Seeking direction to the respondents to grant benefit of Input Tax Credit that was paid by the Petitioner on the same invoices for the period 2019-2020, on which, Respondent No. 3 has also paid the tax - HELD THAT:- This petition is disposed of permitting the petitioner to file an appropriate application as mandated by Section 54 of the Act claiming refund. The period between 19.01.2024 till today shall be excluded for the purposes of limitation. Further, the claim of the Petitioner that Petitioner is covered by Notification No. 13/22 shall be considered by the Proper Officer in accordance with law while entertaining the application for refund filed by the Petitioner.
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2024 (3) TMI 1028
Cancellation of GST registration of petitioner - failure to file Periodic/GST Return - HELD THAT:- The writ petition stands disposed-off with a liberty to the petitioner for moving an application for revocation of cancellation order under Section 30 of the Act of 2017, within two weeks and the petitioner along with his application shall furnish all the GST returns, which he fails to submit and to deposit all the outstanding tax and dues of goods and service tax. If he makes such an application within a period of two weeks, the Proper Officer/Competent Authority shall consider the same, as per law, within four weeks.
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2024 (3) TMI 1027
Reversal/ Refund of the input tax credit - Principles of Estoppel / principle of res judicata - withdrawal of earlier petition - HELD THAT:- In the instant case, it is noted that there was no offer made by the respondents calling for petitioner to come for an amicable settlement. It appears that at the time of hearing of the matter when the bench was not agreeing with the petitioner, petitioner unconditionally sought to withdraw the petition. The observation is being made keeping in view the last line of the last paragraph of the order where the Court had specifically clarified that no liberty has been granted to the petitioner is clearly indicates that when the bench were not agreeing with the petitioner, petitioner sought to unconditionally withdraw the petition. Further, this Court has also noticed that the director of the petitioner was not joining investigation and as such, the department was constrained to take the coercive steps.
The petitioner having unconditionally withdrawn the earlier petition and liberty being specifically declined to the petitioner, the petitioner is precluded from filing the present petition seeking the same relief which was earlier withdrawn by the petitioner. No doubt petitioner had withdrawn the proceedings pending investigation. However the said qualification would have only applied in case the investigation had exonerated the petitioner. In the instant case, the investigation has found petitioner culpable and accordingly, a show cause notice has been issued to the petitioner which is pending adjudication.
The present petition is barred on the principle of the issue of estoppel and as such the petition is not maintainable and same is consequently dismissed.
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2024 (3) TMI 1026
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the petitioner and is a cryptic order - HELD THAT:- The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply filed by the petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory. He merely held that the reply is unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner - Further, if the Proper Officer was of the view that the reply is unsatisfactory and further details were required, the same could have been specifically sought from the petitioner. However, the record does not reflect that any such opportunity was given to the petitioner to clarify its reply or furnish further documents/details.
The impugned order records that petitioner’s reply is not satisfactory. Proper Officer is directed to intimate to the petitioner details/documents, as maybe required to be furnished by the petitioner. Pursuant to the intimation being given, petitioner shall furnish the requisite explanation and documents - the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 29.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off by way of remand.
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9911796707
