Paridhi Jain Vs State

GST - Bail applications have been filed by the petitioner, a professional Chartered Accountant and who is in custody, under Section 439 Cr.P.C. - Petitioner submits that he was only getting the firms registered at the behest of her clients after collecting requisite documents from them; that it was the duty of the competent authority of the department to get the details furnished by the present petitioner verified as per KYC; that as per Section 132 (1)(i) of the CGST Act, if the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, then she has to undergo imprisonment for a term which may extend to five years and with fine; that the amount of wrongly availed input Tax credit is yet to be ascertained by the authorities; that the amount which has come in the bank account of the petitioner as well as in her close relatives accounts has very well been explained; that the petitioner undertakes to cooperate with the investigating authority as and when called for and any violation in providing any information or document asked for by the departmental authorities may result into the cancellation of liberty of bail granted by this Court - Counsel for Revenue submitted that the investigation is still in progress and would take considerable time to conclude as also the actual transaction of the money has not yet been ascertained - Further, they do not dispute the fact that if the petitioner undertakes to cooperate with the investigation of the case, the benefit of enlargement of bail cannot be seriously opposed by them.

Held: Having regard to the facts and circumstances of the case and upon a consideration of the arguments advanced and the fact that the petitioner being a practising Chartered Accountant and a lady of 27 years is facing incarceration for last more than one month and in view of the undertaking submitted by the petitioner to fully cooperate with the investigating agency and provide the information/documents asked for by the investigating agency, Court is of the opinion that the bail applications filed by the petitioner deserve to be accepted - the arrested accused-petitioner was ordered to be be released on bail provided she furnished a personal bond of Rs.10,00,000/- each with two sureties of Rs.10,00,000/- (out of which one of the surety would be a close family member) each to the satisfaction of the trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so; that the petitoner would deposit her passport before the Investigating Authority and will not leave the country without the prior permission of the Court concerned: High Court

- Applications allowed: RAJASTHAN HIGH COURT

2020-TIOL-340-HC-AHM-GST

Kanak Ratna Steel Vs State of Gujarat

GST - Petitioner had sought release of goods and conveyance by quashing and setting aside the notice issued u/s 130 of the Act - Accordingly, Coordinate Bench by its order dated 26th  July 2019 had  deemed fit to order release of the goods at the earliest, keeping in mind that the writ applicant had deposited an amount of of Rs.2,12,246/- towards the penalty and tax -  writ applicant had, therefter, availed the benefit of the interim order passed by this Court and got the vehicle along with the goods released on payment of the tax amount - The proceedings, as on date, are at the stage of show cause notice, u/s 130 of the CGST Act, 2017.

Held: Bench notes that it shall be open for the writ applicant to rely on the decision in the case of  Synergy Fertichem Pvt.Ltd  =  2019-TIOL-546-HC-AHM-GST , in particular, the observations made in Paragraph Nos.99 to 104 - It is now for the applicant to make good his case that the show cause notice, issued in Form GST-MOV-10, deserves to be discharged - writ application stands disposed of: High Court [para 5 to 7]

- Application disposed of: GUJARAT HIGH COURT

2020-TIOL-339-HC-AHM-GST

Shree Nandwana Transport Vs State of Gujarat

GST - Petitioner had sought release of goods and conveyance by quashing and setting aside the notice issued u/s 130 of the Act - Accordingly, Coordinate Bench by its order dated 31st  July 2019 had deemed fit to order release of the goods at the earliest, keeping in mind that the writ applicant had deposited an amount of  of  Rs.2,12,246/- towards the penalty and tax - writ applicant had, therefter, availed the benefit of the interim order passed by this Court and got the vehicle along with the goods released on payment of the tax amount - The proceedings, as on date, are at the stage of show cause notice, u/s 130 of the CGST Act, 2017.

Held: Bench notes that it shall be open for the writ applicant to rely on the decision in the case of  Synergy Fertichem Pvt.Ltd  =  2019-TIOL-546-HC-AHM-GST , in particular, the observations made in Paragraph Nos.99 to 104 - It is now for the applicant to make good his case that the show cause notice, issued in Form GST-MOV-10, deserves to be discharged - writ application stands disposed of: High Court [para 5 to 7]

- Application disposed of: GUJARAT HIGH COURT

2020-TIOL-338-HC-AHM-GST

JMK Solar Energies Pvt Ltd Vs State of Gujarat

GST - Petitioner had sought quashing and setting aside of impugned notice isued u/s 130 of the CGST and, as an interim measure, sought release of confiscated goods and conveyance - Bench, by its order dated 22nd May 2019 had, by way of an ad-interim measure directed the respondent to release the detained goods together with the conveyance subject to the petitioner paying the tax and penalty as computed by the respondent authorities and also subject to filing a solemn undertaking before the court to the effect that the petitioner shall make good the deficit liability, if any, as may be determined finally by the authorities for the goods as well as for the vehicle/s - Pursuant to the notice issued under Section-129 of the Act determining the amount to be paid towards the tax and liability, the requisite amount has been paid by the writ-applicant and the conveyance and the goods have been released - later, a showcause notice came to be issued under Section 130 of the Act calling upon the writ-applicant to show cause why the goods and conveyance should not be confiscated.

Held: Bench notes that the matter is now at the stage of MOV-10 - the writ-applicant is, therefore, directed to appear before the authority and file an appropriate reply to make good his case that the notice issued in GST-MOV-10 deserves to be discharged; that it shall be open for the writ-applicant to place reliance on the decision in the case of Synergy Fertichem Pvt. Ltd. = 2019-TIOL-546-HC-AHM-GST - writ application stands disposed of: High Court [para 3 to 5]

- Application disposed of: GUJARAT HIGH COURT

2020-TIOL-276-CESTAT-DEL

Arun Advertising Agency Vs CCE, C & ST

ST - The appellant is a company engaged in providing services of advertising agency -It acts as an agent of print media and collect the matter to be published in news paper - The print media pays commission to the appellant at agreed rate - During the course of the audit the accounts of appellant as comparison of the balance sheet for the relevant year and the ST-3 returns for the corresponding period was carried out-It was noticed that the taxable value declared in the ST-3 form was short of the actual receipt - The show cause notice was thereafter issued to the appellant regarding the short payment - The Adjudicating Authority confirmed the demand and imposed penalty - Against order of adjudication that an appeal was filed before Commr.(A) and the same was dissmissed.

Held: Regarding the rate difference passed to the print media, the Commr.(A) found that though the Appellant had contended that the rate of communication varies and, therefore, this difference was liable to be deducted, but the Appellant had not produced any evidence which could show that during the disputed period print media had revised the rates - It was also observed that the appellant claimed commission @ 15%, which showed there to be no change in rates thereof - Regarding agency billing, the Commr.(A) held that even if the assessee provided services through another advertising agenct, the amount received as its share of commission is includible in the taxable value - Regarding the commission/discount passed on to the customers, the Commr.(A) found that the appellant provided service to the print media as an agent & so the amount received from print media is taxable for discharging service tax - The appellant put forth no evidence to show that the print media had revised the rates in the disputed period, resulting in change in rate of commission - In such circumstances, the O-i-A merits being sustained: CESTAT

- Assessee's appeal dismissed: DELHI CESTAT

CENTRAL EXCISE

2020-TIOL-274-CESTAT-AHM

Krish Industries Pvt Ltd Vs CCE & ST

CX - Appellant are engaged in manufacture of "Bulk Milk Coolers" and "Stainless Steel Bulk Cooking Equipment viz. Rice Dal Cooker, Rice Cooker, Dal and Sambhar Cauldron etc. - the "Bulk Milk Cooler" was manufactured from April 2010 and the appellant classified the same as "Stationary Pre-cooling equipment" under CETH 84186990 and claimed exemption from payment of duty in terms of notification no. 6/2006-CE dated 1.3.2006 (Serial No.5) and notification no. 12/2012-CE dated 17.3.2012 (Serial No.232) - SCN dated 23.1.2017 was issued to the appellant proposing to classify the product "Bulk Milk Cooler" under chapter sub heading 8419 8990 of the CETA, 1985 and Stainless Steel Products as Kitchen Equipment under chapter heading no. 7323 9420 of the CETA, 1985; to confiscate the goods valued at Rs.47.54 lakhs in terms of Rule 25 of the Central Excise Rules, 2002; to demand duty of Rs.1.52 crore on goods cleared along with interest and to impose penalty under section 11AC of the CEA read with Rule 25 of CER, 2002 - the demands and proposals as proposed in SCNs were confirmed by the adjudicating authority - on appeal, the Commissioner (Appeals) upheld the adjudication order, hence assessee is in appeal before CESTAT.

Held: It is an undisputed fact that "Bulk Milk Cooler" were supplied for installation of cooling facility for preservation and storage of Milk by cooling by Mechanical Appliances - the goods in question are Stationary Pre-cooling equipment which is also not disputed and the product brochure also shows the same - when the bulk milk cooler are in stationary stage and are used for cooling the milk so as to bring down the temperature to 4 degree centigrade with intention of storage and preservation, it is clear that the goods are for use as cold storage of Milk - looking to the nature and use of the product, the goods would merit classification under 8418 6990 of the CETA, 1985 - coming to the availability of exemption notification, it is found that the Bulk Milk Cooling equipments being installed and stationary in position are used for immediate cooling of Milk to conserve and store - the system auto stops once the Milk reaches the 4 degree centigrade temperature and auto restarts if the temperature goes up - thus it is not a refrigeration system but mechanical system - the product brochure in the present case clearly shows that the products is same as one considered in the case of Praj Industries - 2009-TIOL-2592-CESTAT-MUM and in such case the bulk milk cooling equipment being stationary in nature clearly falls under the description of goods under exemption and is clearly a Stationary Pre-cooling equipment - hence the exemption is available to the Appellant - the undisputed fact is that the goods were used for intended purposes covered by the notification - it is coupled with the fact that the appellant had informed their jurisdictional authorities about the clearance of goods under exemption - in such case when the goods are covered by the exemption notification and there is no dispute about the use of goods, the Bench is of the view that the intended benefit be given to the appellant: CESTAT

CX - As regard demand of duty on stainless steel articles and other utensils, it is found that the appellant had claimed SSI exemption on said goods, but the duty was demanded on the ground that after addition of the value of the Bulk Milk Cooler, the aggregate gross turnover value goes above the exemption limit - however, since it is held that the Bulk Milk Cooler is not liable for duty, hence the turnover value of the same has to be computed by excluding the value of Bulk Milk Cooler - thus the appellant are eligible for SSI Exemption - as regard allegation that the appellant made clearances to interconnected undertaking M/s. Krishna Allied Industries Ltd. and hence the sale price of said company would be chargeable to duty at the end of appellant in terms of section 4(3)(b)(i), it is found that said section is applicable where the goods are sold to or through any related party and the assessable value would be eventual sale price to the actual customer - from the perusal of Rule 9, it is clear that in case of sale to interconnected undertaking the assessable value would be the transaction value to the interconnected undertaking only and the sale price of the interconnected undertaking will not merit any consideration - it is also found that from the SCN and the impugned order, it nowhere appears that the appellant had any intention to evade payment of duty - they had made correspondence with the department way back in 2012 intimating the description of goods and availment of exemption - further, from the facts of the case, no contumacious conduct of the appellant is appearing - they had bonafide belief that Bulk Milk Cooler is exempted from payment of duty by virtue of exemption notification - in such case it cannot be said that the appellant had any intention to suppress the fact - therefore, the demands are time barred also - thus, in view of the above, it is held that the appellant being eligible for exemption are not liable for duty - resultantly, the impugned order is set aside and the appeal is allowed: CESTAT [para 7, 8.1, 9, 10, 11, 11.1, 12, 13]

- Appeal allowed: AHMEDABAD CESTAT

TP - Demonstration of refrigeration segment with transport segment must be supported by evidence: ITAT

I-T - Use of CLC/TLC ratio to compute taxable income is valid when such ratio has been adopted in earlier AYs: ITAT

TIOL CORPLAWS

IBC - Process of Insolvency cannot be left pending by disregarding time limit prescribed merely on possibility of modification of plan by Resolution Applicant: NCLAT

Companies Act - Considering Articles of Association of Orbit, trust deed and will of Pralhad, all suggesting intent to transfer shares post Pralhad's lifetime, till time not proved invalid or illegal cannot restrain lawful putative owner of shares, from exercising his voting rights: HC