2019-TIOL-GST-320 Dated: Tuesday, October 22, 2019

HIGH COURT CASES

2019-TIOL-2425-HC-AHM-GST

Janki Enterprise Vs State of Gujarat

GST - The petitioner was moving goods within the State of Gujarat - The vehicle was detained for physical verification of the goods - Thereafter, an order of detention u/s 129(1) of the CGST Act was passed - Hence the present writ - The petitioner claimed that Forms GST MOV-1 & GST MOV-2 had been signed by the authority concerned and that the goods were accompanied by invoice and e-way bill - The petitioner also claimed that the order referred to a report drawn in Form GST MOV-04 but no such report was furnished to the petitioner - Further, the Form GST MOV-6 did not mention any details of physical verification carried out and discrepancy found during such physical verification.

Held - Notice be issued to the parties, returnable as on Oct 22, 2019: HC

- Notice issued : GUJARAT HIGH COURT

2019-TIOL-2424-HC-AHM-GST

Rakesh Govind Prasad Sarawagi Vs State of Gujarat

GST - The petitioner was served summons issued u/s 70 of the CGST Act - The petitioner claimed to be willing to appear before the authority concerned - However, the petitioner was apprehensive of being arrested upon appearing before the authority concerned - Hence the present writ.

Held - Notice be issued to the parties, returnable as on Oct 23, 2019 - As ad interim relief, the petitioner is directed to appear before the authority concerned in response to the summons - However, the petitioner shall not be arrested u/s 69 r/w Section 132(5) of the CGST Act upon appearance before the authority concerned: HC

- Writ petition disposed of : GUJARAT HIGH COURT

2019-TIOL-2423-HC-DEL-GST

Lalit Kumar Kansal Vs UoI

GST - The present writ petition sought to assail the constitutional validity of Notfn No No. 14/2017 – Central Tax dated 01.07.2017 read with Corrigendum F No. 349/52/2017- GST dated 29.07.2019 as being ultra vires of the CGST Act, the IGST Act and Articles 14 and 21 of the Constitution - The petitioner also sought that the arrest memo issued against him be quashed - The petitioner also assailed the vires of Circular No. 3/3/2017 dated 05.07.2017.

Held - The petitioner admitted that a petition was already pending disposal before the Madhya Pradesh High Court - The present petition is not maintainable since the petitioner already was arrested at Bhopal and proceedings against him were commenced thereat - Since the petitioner already invoked the jurisdiction of the MP HC, there is no impediment to the petitioner filing writ petition before the MP HC only - Hence the petitioner is directed to restrict the grounds of appeal raised and that those respondent authorities who are located at Bhopal be deleted from the array of respondents - List on Oct 24 2019: HC

- Writ petition disposed of : DELHI HIGH COURT

2019-TIOL-2422-HC-KERALA-GST

Eagle Home Appliances Pvt Ltd Vs Assistant Commissioner

GST - The petitioner is one amongst a group, who had challenged an assessment order issued to them - The petitioners had assailed the constitutional validity of Section 174 of the Kerala State Goods and Service Tax Act - However, their writ petition had been dismissed vide the order in W.P.(C) 23927/2018 2019-TIOL-441-HC-KERALA-GST - Hence the present writ appeal - The petitioner claimed that the assessment proceedings were beyond the limitation period stipulated on the Act and as such were barred by limitation.

Held - It is seen that the judgment in W.P.(C) 23927/2018 2019-TIOL-441-HC-KERALA-GST covers only the question regarding constitutional validity of Section 174 of the KSGST Act - In the present appeal, a ground raised was that the Single Judge omitted to consider ground of limitation - Such issue was raised before the assessing authority and had been adjudicated therein - Hence the question of limitation is one which could be considered to be a question of law - Hence the same is permitted to be raised - Hence the petition is remitted for consideration of the other grounds available to the writ appellant, particularly the question of limitation - Hence the judgment in 2019-TIOL-441-HC-KERALA-GST stands quashed and the matter is remitted to the Single Judge for re-consideration: HC

- Case remanded : KERALA HIGH COURT

2019-TIOL-2421-HC-DEL-GST

Godrej And Boyce Mfg Company Ltd Vs UoI

GST - Petitioner seeks an order or a direction in the nature thereof directing respondents to open the GST portal or to accept the manual filing of the rectification in amendment in Form TRAN-1 to enable them to carry forward the left out CENVAT credit of Rs.1,25,34,406/- under column 7A of the form which the petitioner left out due to clerical mistake and which they could not rectify since no such provision exists.

Held: Court, in a similar situation in the case of M/s Blue Bird Pure Pvt. Ltd. - 2019-TIOL-1564-HC-DEL-GST , had allowed the writ petition with directions - Since there is no dispute on fact and admittedly there has been a typographical/ clerical error on the part of the petitioner which the petitioner is entitled to correct while filling up the TRAN-1 Form, Bench disposes of this writ petition by directing the Respondents "to either open the online portal so as to enable the Petitioner to again file the rectified TRAN-1 Form electronically or accept the manually filed TRAN-1 Form with the correction on or before 25.10.2019” - It goes without saying that the rectified TRAN-1 Form that the petitioner may file would be subject to verification of the ITC - Petition disposed of: High Court

- Petition disposed of : DELHI HIGH COURT

2019-TIOL-2420-HC-DEL-GST

Bharti Airtel Ltd Vs UoI

GST - Petitioner submits that despite the orders passed, firstly on 25.01.2019 and again on 29.07.2019, the respondents have not filed the affidavit with respect to the mode in which the petitioner could claim refund for the past period, if any, under Section 54 of the CGST Act, 2017, in terms of the circular dated 29.12.2017, given the non-operationalization of the GSTR Forms-2, 2A & 3; that due to continuing stalemate, a huge amount of nearly 923 crores is stuck up as credit to the petitioner, which cannot be utilized.

Held: Ten days time given to the respondents to file their response to the application while making it clear that no further time shall be granted and this application shall positively be taken up for consideration on the next date of hearing – Matter listed on 07.11.2019: High Court

- Matter listed: DELHI HIGH COURT

2019-TIOL-2419-HC-MUM-GST

Hardcastle Restaurants Pvt Ltd Vs UoI

GST - Anti-profiteering - Section 171 of the CGST Act - Rules 122 to 134 of the CGST Rules, 2017 - Rules and the Procedure incorporate principles of natural justice - The Authority is guided by the principles of natural justice - A hearing is, thus, contemplated not merely looking at the records - The scheme of Rules and the Procedure demonstrate that the principles of natural justice are statutorily ingrained - There is a deliberation amongst the members - Therefore, the presence of a member of the Authority during the hearing is not a formality - Multi-member panels are constituted so a decision through discussion and exchange of opinions takes place - The litigant is entitled to be heard by all members who are the ultimate decision-makers so the litigant can try to convince each member of the adjudicating Authority - Therefore oral hearing is clearly contemplated and the argument of the Respondent that since all the record was before the Authority, there is no illegality in the fourth member in signing the order, is not correct - If the scheme itself provides for hearing by all members, not giving hearing itself will cause prejudice, therefore the argument of the Respondents that there is no prejudice, also cannot be accepted - when the three members of the Authority had heard the Petitioner and participated in the entire hearing, the collectively signed decision, when the fourth member joined only for signing the order has resulted in violation of the principles of natural justice and fairness, and is liable to be set aside - fairness and transparency in adjudication will enhance the credibility of the Authority: High Court [para 22, 29, 30]

GST - Issues that come up before the Anti-Profiteering Authority are complex - The Act and Rules provide no appeal - The Authority can impose a penalty and can cancel the registration - The term profiteering, under the Act and Rules, is used in a pejorative sense - Such a finding can severely dent the business reputation - The Authority is newly established, therefore, as a guidance to this Authority, highlighting the importance of fair decision-making is necessary - impugned order dated 16 November 2018 - 2018-TIOL-13-NAA-GST passed by the National Anti-Profiteering Authority is set aside - The proceedings before the National Anti- Profiteering Authority - Respondent No.2. stand restored - Petitioner to appear before the Authority on 25 November 2019: High Court [para 31, 32]

- Petition allowed: BOMBAY HIGH COURT

2019-TIOL-2418-HC-MUM-GST

Hinganghat Integrated Textile Park Pvt Ltd Vs UoI

GST - Composition of GSTAT - Petitioner has adverted to the Madras High Court decision reported as - 2019-TIOL-2188-HC-MAD-GST - Counsel for Respondent informed that he is seeking instructions on the aspect as to whether the department intends to challenge the said decision of the Madras High Court before the Supreme Court or not - Petitioner submits that there are certain other issues raised by the present petition apart from those covered by the decision cited - Petitioner also suggests that instead of constituting a separate Tribunal to deal with GST matters, the CESTAT could be empowered to deal with the same since several cases involve issues relating to customs duties and GST as well.

Held: Matter adjourned to 19.11.2019 - Counsel for Respondent to seek instructions on both the aspects aforesaid: High Court [para 3, 4]

- Notice issued: BOMBAY HIGH COURT

2019-TIOL-2417-HC-DEL-GST

Bharatiya Vitta Salahkar Samiti Vs UoI

Held: Matter adjourned to 19.11.2019 - Counsel for Respondent to seek instructions on both the aspects aforesaid: High Court [para 3, 4]

- Matter adjourned: DELHI HIGH COURT

AAR CASES

2019-TIOL-420-AAR-GST

Shewratan Company Pvt Ltd

GST - Applicant's supply of stores (viz. paint, rope, spare parts, electronic equipment etc.) to foreign going vessels is not export of zero-rated supply unless it is marked specifically for a location outside India - applicant is liable to pay tax on such supplies: AAR

- Application disposed of: AAR

2019-TIOL-419-AAR-GST

Singh Transport Agency

GST - Applicant is providing conservancy/solid waste management service to the Conservancy Department of the Howrah Municipal Corporation (HMC) - HMC is deducting TDS while paying consideration for the said supply in terms of 50/2018-CT - applicant seeks a ruling as to whether the said supply is exempted in terms of Serial no. 3 or 3A of 12/2017-CTR and if so, whether the notifications regarding TDS are applicable.

Held: Applicant's supply to Howrah Municipal Corporation is exempted from payment of GST in terms of Sl. no. 3 of 12/2017-CT - as the applicant is making exempted supply, the provisions of s.51 of the Act and for that matter notification 50/2018-CT in relation to TDS do not apply: AAR

- Application disposed of: AAR

2019-TIOL-418-AAR-GST

Rabi Sankar Tah

GST - Where their income from renting is separately ascertainable and assessed for income tax individually at the hands of each co-owner, they cannot be treated as association of persons - whether the applicant is required to be registered u/s 22(1) of the Act will, therefore, depend on his gross turnover, ascertained separately from the other co-owners exceeding the threshold as provided under the Act: AAR

- Application disposed of: AAR