GST HIGH COURT CASES

2018-TIOL-195-HC-MUM-GST

Nirman Estate Developers Pvt Ltd Vs UoI

GST - The petitioner contests the constitutional validity of Notfn No No.4 of 2018-Central Tax (Rate) and Notification No.4 of 2018-State Tax (Rate), both dated Jan 25, 2018 - It is claimed that both notifications seek to tax an activity which is neither service nor supply of service & so is ultra vires of the CGST Act 2017.

Held - copies of this order are directed to be served to the respondents - The petitioner would be heard on the next date of hearing, i.e., Jan 18, 2019: HC

- Notice issued: BOMBAY HIGH COURT

2018-TIOL-194-HC-P&H-GST

Sunbeam Auto Pvt Ltd Vs UoI

GST - The assessee-company is engaged in manufacturing Aluminium Die Casted Components, I.C. Engine Parts & Die Mould - It availed Cenvat credit on inputs, capital goods & input services & used the same for payment of Excise duty - During the period in question, the assessee had some amount of unused Cenvat credit - Upon implementation of GST, the assessee migrated over to the new system - It filed Form GST TRAN-I with limited details, which was accepted by the portal - The assessee then sought to carry forward the amount of unused Cenvat credit - It made several representations in this regard, but received no response.

Held - upon considering such facts and circumstances, the authority concerned is directed to take a decision on the matter & pass a speaking order after giving opportunity of personal hearing to the assessee: HC

- Assessee's writ petition disposed off : PUNJAB & HARYANA HIGH COURT

 

GST NAA CASES

2018-TIOL-28-NAA-GST

Kerala State Level Screening Committee On Anti-Profiteering Vs Asian Paints Ltd

GST - Anti-profiteering - The Kerala State Screening Committee found the respondent to have profiteered from supply of 'Paint (AP Apex Classic WT 10 LT (HSN Code 3209)' - It was charged with not having passed on their benefit of reduction in rate of duty upon implementation of GST - Later, the DGAP noted that the products earlier attracted VAT @ 14.50% & Central Excise duty @ 12.50% on 70% of the MRP - It was further noted that the total rate was cut from 28.60% to 28% upon implementation of GST - It was also noted that the base price of the product had been marginally increased by about 0.24% - Hence the DGAP held that the charge of profiteering was not sustainable.

Held - It is seen that post-GST, there has been an increase in the base price by about Rs 4.50/-, which is on account of the reduction in the discount - This is not tantamount to profiteering, as such discount was being offered from the respondent's profit margin - This does not form part of the base price - Thus the respondent cannot be charged with having contravened the provisions of Section 171 of the CGST Act: NAA

- Application disposed off: NAA

2018-TIOL-27-NAA-GST

Kerala State Level Screening Committee On Anti-Profiteering Vs Janson

GST - Anti-profiteering - The respondent was charged with profiteering from the supply of 'Handloom Design-King Supreme Lungi (HSN Code 54078460)' - It was alleged that the respondent did not pass on the benefit of the reduction in the tax rates - The DGAP later examined the respondent's invoices and concluded that there was no reduction in the rate of tax on the product before and after the enactment of GST - It rejected the Kerala State Screening Committee's findings of the product actually attract nil rate of duty in pre-GST period, while the invoices mentioned 2% rate of tax.

Held - From the facts & circumstances of the case, it is seen that there was no reduction in the rate of tax on the product in question - Hence the anti-profiteering provisions u/s 171 of the CGST Act cannot be invoked in this case - The charges against the respondent are unsustainable: NAA

- Application disposed off: NAA

2018-TIOL-26-NAA-GST

Director General Of Anti-Profiteering Vs Raj And Company

GST - Anti-profiteering - A complaint was filed with the Secretary of the NAA, stating that certain manufacturers of FMCG goods including the respondent, were profiteering from not passing on the benefit of reduction in rate of duty on 'Garnier Nat Shade 3' - Later, the DGAP found that the respondent was liable to pay tax @ 18% from the earlier rate of 28% & that it was its statutoru duty to pass on such benefit of rate reduction - It also found that by increasing the base price post-GST, the respondent had maintained the pre-GST rate & in doing so had denied benefit of rate reduction to the consumer - Hence the respondent was charged with profiteering in contravention of the provision iof Section 171 of the CGST Act 2017.

Held - From the DGAP's findings, it is seen that from the 388 products, the base prices of 293 had been increased, inspite of the rate reduction, so as to maintain the pre-rate reduction prices - Hence the respondent was found to have charged increased base prices & thus indulged in profiteering - There is no evidence to show that the respondent corresponded with the manufacturer to decrease the base prices on account of GST rate reduction - Being, a registered supplier, it was legally bound to pass on such benefit - Hence the respondent is directed to reduce the prices of the goods in question as per Rule 133(3)(a) of the CGST Rules 2017 - It is also directed to deposit the profiteered amount to the CWF - Notice proposing penalty may also be issued considering that the respondent issued incorrect tax invoices, which is a punishable offence u/s 122(1)(i) of the CGST Act: NAA

- Application allowed: NAA

2018-TIOL-25-NAA-GST

Kerala State Level Screening Committee On Anti-Profiteering Vs Ahuja Radios

GST - Anti-profiteering - the respondent has been charged with profiteering from the supply of 'PA Ceiling Speaker BS-6038T' & 'PA Wall Speaker WS-661T' - It is alleged that it did not pass on the benefit of the reduced rate of GST - Later, the DGAP later examined the relevant invoices & found there to be no increase in the per unit price (excluding GST) in respect of both products, during pre-GST & post-GST rate revision - It was also noted that the tax rate of both products had been slashed from 28% to 18% - Hence the DGAP found that the charge of profiteering was unsustainable.

Held - It is seen that while there was a reduction in the rate of tax vide Notfn No 41/2017-CT(R) dated 14.11.2017, the base prices (excluding GST) of both products remained the same - Hence no contravention of the provisions of Section 171 of the CGST Act 2017 is established - Thus the charge of profiteering is correctly found to be unsustainable: NAA

- Application disposed off: NAA

2018-TIOL-24-NAA-GST

Kerala State Level Screening Committee On Anti-Profiteering Vs Lorenzo Vitrified Tiles Pvt Ltd

GST - Anti-profiteering - The Kerala State Screening Committee charged the respondent with profiteering from the supply of 'Mirror Series tiles' - It was alleged that it did not pass on the benefit of GST rate reduction upon implementation of GST - Later, the DGAP noted that in the pre-GST period, the product attracted CST @ 2% & Excise duty @ 12.5% on 55% of the MRP - Upon implementation of GST, the rate was fixed at 28% and then reduced to 18% - It noted that without any invoice issued post-GST when the rate was cut to 18%, it was not possible to compare the pre-rate revision and the post-rate revision selling prices - Considering the invoices, the DGAP observed that there was no reduction in the rate, which had been raised from 14.44% to 28% & that the per unit price excluding tax, had not been increased - It found nothing to show that benefit of rate reduction was not passed on - Hence the DGAP found no contravention of Section 171 of the CGST Act 2017.

Held - From the material on record, it is seen that there was no reduction in the rate of tax of this product post-GST - There is also no rise in the per unit base price (excluding GST) - Hence charge of profiteering is not established: NAA

- Application disposed off: NAA

 

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