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GST HIGH COURT
2018-TIOL-160-HC-KAR-GST
Shakti Technologies Vs UoI
GST - The assessee-company filed the present writ petition challenging the validity of Rule 117 of the CGST Rules.
Held - In such case, the petition was dismissed as being infructuous - The court also sustained the validity of the Rule 117, holding that the assessee had the opportunity to file the FORM GST TRAN -1 & TRAN-2 within the prescribed time frame - Nonetheless, the assessee therein was directed to upload the Forms - Hence, the present petition is disposed off in similar terms: HC
- Assessee's writ petition disposed of: KARNATAKA HIGH COURT
2018-TIOL-159-HC-ALL-GST
Corp Mediteche Pvt Ltd Vs State Of UP
GST - When the vehicle in question was detained at 03:30 am on 22.05.2018, the tax invoice and other documents accompanying the goods were produced by the person in charge/driver of the vehicle; however, the requisite part-B of E-way bill was not downloaded and did not accompany the goods - However, the transporter has downloaded the same and placed it on the same day i.e. on 22.05.2018 at 10:56 am - detaining authority, however, proceeded to seize the goods and to issue a notice under Section 129 (3) of the CGST Act - Order passed asking the petitioner to pay sum of Rs. 27,54,681/- plus a penalty of the same amount for releasing of the seized goods and vehicles in question - In the matter of appeal filed against this order, Additional Commissioner (Appeal), Mathura has passed the impugned order, by which he has affirmed the order of seizure and demand of penalty - Petitioner submitting that the impugned order is appellable under Section 112 of the CGST Act before the Tribunal, but since the Tribunal is not constituted so far, even after a lapse of more than one and half year, he has no option but to challenge the proceedings under Article 226 of the Constitution of India.
Held: Court has requested for forming of the Tribunal long back while entertaining the writ petitions against the seizure proceedings - Surprisingly, even after a specific order of this Court the authority concerned has not acted upon and till date no Tribunal is established - issue is now serious as because of non-establishment of the Tribunal, the parties are unnecessarily approaching the Court whereas, in case of establishment of Tribunal they can easily file the appeal under Section 112 of the Act - Issue notice to the newly added respondent nos. 3 and 4, Union of India and Goods & Service Tax Council to explain as to why the previous orders of this Court are not complied with and as to why the statutory Tribunal is not setup so far - since the petitioner is a registered company and the purchaser is a Government of India Enterprise, Court finds it proper and appropriate to protect the interest of parties to pass the following orders of releasing the goods on furnishing an indemnity bond to the extent of the value of tax only and not the penalty amount; goods seized along with vehicle be released forthwith; petitioner be permitted to download a fresh E-way bill immediately after release of the goods and vehicle; goods and vehicle be allowed to proceed to its onward journey and after delivery of the goods, the petitioner must furnish the certificate, as required under the law, showing the delivery of the goods at the purchaser's place - List petition on 16 August: High Court
- Petition listed: ALLAHABAD HIGH COURT
2018-TIOL-158-HC-AHM-GST
Indus Projects Ltd Vs UoI
GST - Petitioner does not dispute sizeable outstanding dues to the tax department but pleads extreme financial hardship in clearing such dues in single installment - Petitioner prays for granting installments for clearing the Government dues - applicant states that they have fulfilled all the terms of the interim order dated 20.9.2018 [2018-TIOL-125-HC-AHM-GST], despite which, the respondents are enforcing coercive recoveries inasmuch as the department is enforcing garnishee order contained in earlier communications issued to ONGC - letter dated 30.10.2018 written by Assistant Commissioner of Central GST & Central Excise, Division-IV, Vadodara to the DGM-Head Finance, Onshore Engineering Services, ONGC is adverted to.
Held: When this Court has by interim order stayed coercive recoveries of the dues of the petitioner, the respondents could not have insisted on ONGC either paying up the dues of the petitioner to the department or even prevented ONGC from releasing such payments in favour of the petitioner - This would be plainly carrying out coercive recoveries of the dues which this Court by way of interim injunction prevented the department from doing -Communication dated 30.10.2018 is stayed - It is clarified that as long as the petitioner continues complying with the conditions of interim order dated 20.9.2018 and till such order is not recalled or modified, the respondents shall not compel ONGC or any other debtor of the petitioner to deposit any amount with the department or prevent the debtor from paying such sum to the petitioner - Notice returnable on 29.11.2018: High Court
- Notice issued: GUJARAT HIGH COURT
2018-TIOL-157-HC-ALL-GST
Kashi Bartan Bhandar Vs State Of UP
GST - Petitioner has challenged the order by which its registration as a dealer has been cancelled under the UP GST Act, 2017 - Petitioner submits that the same is in gross violation of the principles of natural justice inasmuch the SCN alleged to be issued on 18.01.2018 has not been served upon the petitioner; that only on prima facie satisfication that the petitioner is not carrying any business without coming to any final conclusion, the registration had been cancelled - Counsel for the Revenue submits that the SCN was sent to the petitioner at its email address and also sent by a messenger and affixed at a conspicious place of business of the petitioner; that since no one was found at the place of business when the messenger had gone there, it was presumed that the business is lying closed.
Held: Notice under the GST Act is required to be served in accordance with the provisions of Section 169 of the Act - It is only if the mode of service as provided in the earlier parts of Section 169 are not practicable that the authorities can resort to service of notice by affixation - Court does not find that the Assistant Commissioner had come to any conclusion that all previous modes as prescribed under Section 169 are not practicable for the service of notice and, therefore, has directly resorted to service by affixation - accordingly, service, if any, by affixation cannot be regarded as a proper service - Assistant Commissioner could not have passed the order on the basis of prima-facie opinion until and unless he was of a definite opinion that the petitioner has closed down the business - Notwithstanding the remedy of appeal, Court does not propose to relegate the petitioner to it for the simple reason that the petition was entertained and the parties have completed the pleadings to enable the Court to hear the matter on merits - Moreover, it is a case of clear violation of principles of natural justice and it is well accepted norm of exercising extraordinary jurisdiction that alternate remedy would not be a bar where the order is ex-facie, illegal and has been passed violating the principles of natural justice - Impugned order quashed and Writ Petition allowed - liberty granted to the respondent to pass a fresh order in accordance with law: High Court
- Petition allowed: ALLAHABAD HIGH COURT
2018-TIOL-156-HC-KERALA-GST
Kerala Trading Vs UoI
GST - Petitioner, a trader, transported natural rubber - consignment sent to Uttarakhand along with e-way bill was seized by the State Tax Officer, Uttarakhand on the ground that in the e-way bill the distance between Kerala and Uttarakhand was shown as 280 kms instead of 2800 kms - Petitioner submitting that the same was a typographical error and that there is no provision in the Rules for such correction - Petitioner’s counsel also submitting that the produce being transported is natural rubber and it has been in detention for the past ten days; that as it has a short shelf life, any further delay in the matter would render the whole consignment worthless; that if the Court observes that the error in e-way bill is minor apart from being typographical, then it stands covered and exempted under Circular No.64/38/2018-GST dated 14.09.2018.
Held: Court observes that the CBIC has come across many minor discrepancies in the e-way bills, resulting in summary detention of the goods and, therefore, it has issued the Circular dated 14.09.2018 - Court reckons the distance between Kerala and Uttarakhand is a matter of record and thus verifiable - E-way bill showed the distance as 280 Kms, instead of 2800 Kms - one zero missing and this cannot be anything other than a typographical error, and a minor one, at that - Respondent to consider the petitioner's request for release in terms of the circular, expeditiously - Petition disposed of: High Court [para 6]
- Petition disposed of: KERALA HIGH COURT
2018-TIOL-155-HC-KERALA-GST
Mohammed Bilal Vs UoI
ST, GST - Whether petitioner is liable to pay Service Tax on its business activities - Petitioner had earlier faced demand for different periods - for one period, the department had accepted the explanation offered by the petitioner and for another period, the demand was confirmed and the matter was carried by the petitioner in Writ Petition, when the assessment came to be set aside and the matter was remanded - On the same issue, SCN has been served by the department for the later period and questioning this action, the petitioner has filed the present Writ Petition - Petitioner contending that unless the authorities decide the matter remanded by the High Court, the whole exercise of issuing SCN and inviting explanation from petitioner is futile; that the department ought to have waited until the earlier proceedings concluded - counsel for respondent Revenue submited that law does not prohibit the authorities from seeking the assessee's explanation for a different assessment year; that if the petitioner submits explanation, the authorities would await the outcome of the pending adjudication and then proceed with the matter.
Held:Petitioner has also questioned the legality of the respondent's demand for fresh assessment in the face of the 101 st Constitutional amendment - In these circumstances, while the petitioner would require to submit his explanation in response to the SCN, the authorities will not finalise the proceedings until they decide the issue pending adjudication - Matter to be posted along with the batch of petitions challenging constitutional validity under the GST regime: High Court
- Matter posted: KERALA HIGH COURT
GST AAR CASES
2018-TIOL-258-AAR-GST
Indian Cotton Solutions.Com Pvt Ltd
GST - Applicant is engaged in supply of service by providing Mobile Laboratory Services to test the quality of cotton - Applicant is seeking a ruling as to whether they can utilize the ITC in respect of the vehicles purchased by them for the purpose of their core business activity.
Held: From a plain reading of section 17 of the CGST Act, 2017, it is clear that the goods referred by the applicant do not fall under the exceptions referred in section 17(5) of the CGST/APGST Act, 2017 - Hence the applicant is not entitled for claim of ITC: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-257-AAR-GST
Agarwal Industries Pvt Ltd
GST - Applicant is engaged in manufacturing ingredients of Poultry feed, particularly involved in manufacturing of substitute of Rice bran oil, which is used in preparation of poultry feed - Applicant named their product "Energy-G premium oil" and stated that the product is inedible or not fit for human consumption and purely for manufacturing of poulty feed - applicant requesting for clarification of correct HSN Code for this product.
Held: Product under question viz. "Energy-G Premium oil" is manufactured out of Vegetable fats/oils and not from animal fats/oils and this being so, the product is rightly classifiable under HSN 1518 and is subject to 5% GST as per S.No. 90 of Schedule I of Notification 1/2017-CTR and corresponding SGST notification: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
JEST GST by Vijay Kumar
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