Bharat Vijay Transport Company Vs State Of Gujarat

GST - Petitioner had sought quashing and setting aside of the impugned order dated 02.01.2019 and direction to the respondent to release the Truck detained on 02.01.2019 without any direction of payment/security etc.; that the State government be directed to pay demurrage/detention charges of truck which is seized for more than two months for no fault on the part of the petitioner - By way of interim relief, the respondents were directed to forthwith release the conveyance being Truck No.GJ-01-BY-5326 of the petitioner, subject to a responsible partner of the petitioner firm filing an undertaking before this court, within a period of two days that in the event the petitioner fails in the petition or is otherwise found to be liable under the CGST/GGST Act, the petitioner shall forthwith discharge such liability without prejudice to its rights to challenging such order before the appropriate forum - pursuant to complying with the said directions, the goods and conveyance were released - Matter heard.

Held: In view of the fact, that the impugned order dated 02.01.2019, passed u/s 130 of the GGST, 2017 is without any reason and the same is passed without considering the objections raised by the petitioner, the same is quashed and set aside - However, it is made clear by the Bench that the respondent authority can invoke Section 130 of the Act, if any material is found against the petitioner - Petition is disposed of: High Court [para 5 to 7]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-347-HC-AHM-GST

RK Imaging 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 25 th  July 2019 had viewed that having regard to the fact that the goods involved in the case on hand is a sonography machine and the same is lying with the authorities past more than one month, the same should be released subject to the final outcome of this petition and also keeping in mind that the writ applicant had deposited an amount of  Rs.3,32,144/- 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 and which proceedings, the High Court observed, need to go ahead in accordance with the law.

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-346-HC-AHM-GST

Jaylakshmi Agro Foods Vs State Of Gujarat

GST - Petitioner sought quashing and setting aside of the impugned notice in form GST MOV-10 and an order directing the respondents to forthwith release the truck along with the goods contained therein - Co-ordinate bench by its order dated 27 th March 2019 noted therein that the petitioner had already deposited tax and penalty u/s 129 and, therefore, by way of interim relief directed the respondents to release the truck and the goods and the petitioner was directed to file an undertaking to the effect that in case the petitioner, ultimately, does not succeed in the petition, he shall duly cooperate in the further proceedings - writ applicant availed the benefit of interim order and got the goods and the truck released, after making payment towards the tax and penalty.

Held: It appears that while the writ applicant was heard before the Court, pursuing the present writ application, a final order, in the Form GST MOV-11, came to be passed - according to the writ applicant, at no point of time such order was served upon him - nonetheless, such order passed in the Form GST MOV-11, is now available on record - Bench, therefore, relegates the writ applicant to avail the remedy of preferring an appeal under Section 107 of the Act before the appellate authority - appellate authority shall hear the appeal and dispose of the same within a period of two weeks from the date of filing of the appeal - it shall be open for the writ applicant to rely on the pronouncement in the case of Synergy Fertichem Pvt.Ltd = 2019-TIOL-546-HC-AHM-GST - Petition disposed of: High Court [para 7, 8, 10, 12]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-345-HC-AHM-GST

Vishnukumar Shivkumar 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 27 th  March 2019 clarified that in the meanwhile, it would be open for the respondents to release the vehicle together with the goods upon payment of the tax amount in terms of the impugned notice - writ applicant had, therefter, availed the benefit of the interim order passed by the 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

Aakavi Spinning Mills Pvt Ltd Vs ACCT

Whether all types of Hank yarn Cotton, VSF, PFA or others are exempt from Value Added Tax under the Tamil Nadu Value Added Tax Act, 2006 - YES: HC

Whether only cotton Hank yarn and not Hank yarn of other types are exempt from Value Added Tax under the Tamil Nadu Value Added Tax Act, 2006 - NO : HC

- Assessee's writ petition allowed: MADRAS HIGH COURT

2020-TIOL-336-HC-MAD-ST

Bright Marketing Company Vs CCE & ST

ST - The Assessee is aggrieved by the order passed by the CESTAT on 5.6.2018 - 2018-TIOL-3027-CESTAT-MAD upholding the imposition of penalty at the reduced rate of 25% amounting to Rs.8.84 lakhs by the original order dated 10.8.2017 - 2017-TIOL-4401-CESTAT-MAD

Held: There is no dispute that the Assessee filed the returns and paid the short-levied ST in the year 2013 itself with interest and that was definitely prior to issuance of SCN issued on 15.10.2014 - therefore, the Assessee had complied with the terms of section 73(3) of the Finance Act, 1994 [Act] and would not fall within the mischief of section 73(4) of the Act, thereby obviously the Assessee would not attract the imposition to penalty under section 78 of the Act, which is applicable only if the Assessee falls within the mischief to section 73(4) of the Act viz., fraud, collusion, suppression of facts, willful mis-statement - payment of ST with interest on the basis of determination by an Auditor of the Department would not take out the case of the Assessee from the ambit and scope of section 73(3) of the Act - therefore, the question of imposition of penalty under section 78 of the Act on the Assessee would not arise in the present case - unless the penalty under section 78 of the Act itself is leviable on the Assessee, there is no question of any reduction of the quantum of penalty to 25% thereof by the Tribunal in its discretion - what is not at all leviable, cannot be reduced - therefore, the Assessee is entitled to get the relief in the present case and the Appeal filed by the Assessee deserves to be allowed - the same is, accordingly, allowed and the penalty order of original adjudicating Authority as well as that of the Tribunal upholding the imposition of penalty under section 78 of the Act to the extent of 25% both deserve to be set aside - the same is set aside - the Civil Miscellaneous Appeal is allowed, accordingly: High Court [para 9, 10, 11, 12, 13]

CENTRAL EXCISE

2020-TIOL-337-HC-RAJ-CX

Shree Cement Ltd Vs UoI

CX - Writ petitions have been filed by the petitioner Shree Cement Limited and its Officers, calling in question the enquiry and consequent recovery proceedings initiated by the respondent - Central Excise Department in relation to the cenvat credit of the duty paid on the capital goods purchased for its Power Plants.

Held: With reference to the first writ petition (No.4487/2014), once a SCN has been issued in furtherance of the summons, nothing remains to be adjudicated in a writ petition, which had been filed against the summons - no sweeping declaration as prayed for by the petitioner in its prayer clause No.(ii) can be made - right of a manufacturer to avail cenvat credit is dependent upon hoards of factors and such right is to be adjudicated and determined by the Officers of the Excise Department on the touch stone of the statutory provisions and existing facts - the Court outright declines to pronounce upon the petitioner's entitlement to avail cenvat credit on the available facts - in view of the above, DB Civil Writ Petition No.4487/2014 is dismissed as infructuous - adverting to the remaining writ petitions, being DB Civil Writ Petitions No.10286/2016; 5490/2018; 5492/2018; and 5512/2018 the undisputed factual position, which has surfaced in the present facts is that the impugned SCN dated 20/22.7.2016 proposing to recover the cenvat credit qua the duty paid on capital goods procured for power plants concerns the Beawar plant only and both the parties are ad-idem that no proceeding has been taken or contemplated for the Raas Plant of the petitioner Company - this being the fact situation, the subsequent writ petitions assailing the SCN dated 20/22.07.2016 are required to be heard and decided by Jaipur Bench of this Court, as the Beawar Plant of the petitioner Company falls within the territorial trajectory of Jaipur Bench of this Court, so clearly defined in the Presidential Order dated 8.12.1976 - in view of the above, the writ petitions being DB Civil Writ Petitions No.10286/2016, 5490/2018, 5492/2018 and 5512/2018 deserve to be and are hereby transferred to Jaipur Bench of this Court: High Court [para 19, 21, 22, 23, 24]

I-T - Dismissal of application by AAR does not warrant writ court's intervention, if relevant documents were not submitted before former authority for want of due diligence: HC

TP - No addition of notional interest on receivables towards TP arises when assessee is a debt free company: ITAT

I-T - Assessee cannot be worse off from tax liability from its source jurisdiction when service PE is triggered by foreign services in India: ITAT

TIOL CORPLAWS

IBC - Aalternative remedy of filing appeal to NCLAT is available and there are serious factual dispute between parties, court will not entertain writ petition on merits: HC

SAT - Shares of sick target company whose draft rehabilitation scheme is under consideration, are acquired due to inability of borrowers to repay loan amount do not attract provisions of Takeover Regulations: SAT