Kinjal Agro Spices Vs State Of Gujarat

GST - Writ applicant 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 and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of  Synergy Fertichem Pvt.  - 2019-TIOL-2950-HC-AHM-GST   and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GST-MOV- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-894-HC-AHM-GST

Bhagwati Kiran Store Vs State Of Gujarat

GST - Writ applicant 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 and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of  Synergy Fertichem Pvt.  - 2019-TIOL-2950-HC-AHM-GST   and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GST-MOV- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-893-HC-KERALA-GST

Josco Bullion Traders Pvt Ltd Vs Commissioner

GST - Seizure of the gold ornaments entrusted by the petitioners in both these writ petitions with the 6th respondent was consequent to a search of the premises of the 6th respondent conducted by the authorities under the SGST Act, who suspected that there was a possible evasion of tax by the 6th respondent - in the context of the present proceedings initiated against the 6th respondent, the goods entrusted to the 6th respondent by the petitioners herein, cannot be confiscated in terms of Section 130 of the SGST Act, since the confiscation under the said provision can only be in respect of supplies or receipt of any goods in contravention of any of the provisions of the Act, with an intent to evade payment of tax - There being no possibility of an evasion of tax in respect of the goods by the 6th respondent since the goods themselves belong to the petitioners, Bench is of the view that the goods entrusted by the petitioners with the 6th respondent and covered by the delivery chellan and issue vouchers aforementioned, cannot be the subject matter of a confiscation order under Section 130 passed in relation to the 6th respondent - Writ petitions disposed of by directing that the respondent authorities under the SGST Act shall complete the proceedings against the 6th respondent, within an outer time frame of one month - It is further made clear that on the expiry of the said period of one month, and irrespective of whether the proceedings against the 6th respondent are completed or not, the gold jewellery covered by the delivery challans and issue vouchers [14538.40 gms + 5348 gms] shall be released to the petitioners herein - To facilitate such release, Exts.P8 and P8(a) seizure orders and Exts.P9 and P9(a) prohibition orders, insofar as it relates to the gold jewellery entrusted by the petitioners herein to the 6th respondent, shall stand quashed - Writ petitions are disposed of: High Court [para 5, 6]

- Petitions disposed of: KERALA HIGH COURT

2020-TIOL-892-HC-AHM-GST

Brandthought Retail Pvt Ltd Vs State Of Gujarat

GST - By an ad-interim order, Court directed that the goods to be released and with this direction, the writ applicant availed the benefit of an interim order and got the goods released, on payment of the requisite amount - Bench is now called upon to adjudicate the legality and validity of the order passed by the authority in GST-MOV-11.

Held: Bench is convinced that the impugned order of confiscation is without any application of mind and not tanable in the law - In what state of circumstances the authority would be justified to invoke Section 130 of the Act, for the purpose of confiscation, is now explained in detail by this Court in the case of Synergy Fertichem Pvt.Ltd V/s. State of Gujarat [Special Civil Application No.4730 of 2019] - 2019-TIOL-2950-HC-AHM-GST, paragraphs 99 to 104 refers - In view of the aforesaid, this Writ Application is allowed, in part - The impugned order of confiscation, in Form GST MOV-11, is hereby quashed and set aside and the matter is remitted to the respondent No.2 for fresh consideration, so far as the issue of confiscation is concerned and who is to bear in mind the principles explained by the High Court in the cited case - Writ Application stands disposed of: High Court [para 7 to 10]

- Application disposed of: GUJARAT HIGH COURT

Vijay Kurle

Whether citizen can criticise judgments of Court, however, no one has right to attribute motives to Judge or to question bona fides of Judge or to raise questions with regard to competence of Judge - YES : SC

Whether for suo motu Contempt Petition there is no requirement for taking consent of anyone by Apex Court as it is exercising its inherent powers to issue notice for contempt - YES : SC

Whether notice issued is legal and valid notice as order is attached to notice and became part and parcel of notice and contains information of nature of contempt and reference to complaints of contemnors - YES : SC

Whether it is a suo motu Contempt Petition based on complaints and cannot be termed a contempt petition requiring consent of Attorney General - YES : SC

Whether the bench did not act as judge in their own cause as after issuing notice bench directed that matter be placed before Chief Justice for placing before the appropriate bench - YES : SC

- Directions Issued: SUPREME COURT OF INDIA

SERVICE TAX

ST - The assessee-company is engaged in cargo handling and manpower supply service - It paid service tax and filed returns - During audit in the relevant period, the assessee was found to not have issued serially numbered invoices and many other invoices were missing from the records and the books of accounts were not maintained on daily basis - The service tax returns also did not reflect the factual position of gross receipt - Also considering the statement of invoices as well as the modified invoices, it appeared that some amount of duty had been short paid - On being pointed out, the duty with interest was paid by the assessee - On adjudication, duty demand was raised with interest, with the penalty being dropped - On appeal by the Revenue, the Commr.(A) imposed penalty u/s 78 on grounds that the assessee was required to maintain proper records and paid the service tax amount only upon being pointed out by the Audit Wing - Hence the present appeal.

Held - It is seen that substantial amount of service tax with interest was paid on being pointed out by the Audit - The O-i-A also recorded that the balance duty was paid subsequently - All such payments were made before the date of passing the O-i-O - In such circumstances, no case of deliberate default is made out on part of the assessee, who also gave a cogent explanation in respect of the short paid duty as being on account of clerical errors - Such explanation was not faulted - Hence the penalty imposed u/s 78 merits being set aside: CESTAT

- Assessee's appeal allowed: DELHI CESTAT

CENTRAL EXCISE

CX - The assessee is engaged in manufacture of textile articles - They are availing exemption under Notfn 30/2004-CE for the period 2012-13 to November 2016 - During this period, they were availing Cenvat credit on capital goods - The case of the department is that since the capital goods are exclusively used in manufacture of exempted goods, the assessee is not entitled to Cenvat credit - Lower authorities have denied Cenvat credit on capital goods on the ground that the amendment to Rule 6(4) does not have retrospective effect - As per the submissions made by assessee before the Adjudicating Authority, they have paid duty in the month of April 2017 and June 2017 - The Adjudicating Authority has decided on the interpretation of amendment and no verification was done as regards the payment of duty - In view of Welspun India Limited 2019-TIOL-3031-CESTAT-AHM, if it is found that assessee have cleared goods on payment of duty, from the date of taking credit they will be entitled for Cenvat credit, subject to condition that dutiable goods should be cleared within two years from the date of commencement of production of goods or installation of such capital goods, as the case may be - Matter is remanded to the Adjudicating Authority to decide the matter afresh: CESTAT

- Matter remanded: AHMEDABAD CESTAT

CX – Issue is as to whether the appellant can utilize the Cenvat Credit of basic Excise Duty for payment of National Calamity Contingent Duty (NCCD).

Held: Appeal of the revenue is only on the reliance of Sikkim high court judgment in the case of Unicorn Industries vs. Union of India - 2013-TIOL-438-HC-SIKKIM-CX - judgment of the Sikkim High Court in the case of Unicorn Industries being on entirely different issue is not applicable - Whereas Bench finds that on the absolutely identical issue whether payment of National Calamity Contingent Duty can be made by utilizing the Cenvat Credit of Basic Excise Duty has been dealt with by the Gauhati High Court in the case Union of India Vs. Kamakhya Cosmetics Pharmaceutical Pvt. Ltd wherein it was held that payment of education cess can be made by utilizing Cenvat Credit of Basic Excise Duty - Same view was taken by the UttaraKhand High Court in the case of Hero Motocorp Ltd. - 2018-TIOL-142-HC-UKHAND-CX whereby it was held that NCCD & CESS are part of levies under rule 3(1) of Cenvat Credit Rule, 2004 making an aggregate of Cenvat Credit hence, assessee could make use of Basic Excise Duty for payment of NCCD & CESS - Even in the case of Appellant itself the utilization of credit of basic excise duty for payment of NCCD has been allowed by Revisionary Authority, Department of Revenue, Government of India - order passed by the Lower Authority is proper and legal and does not require any interference - Hence, impugned orders are upheld and Revenue's appeals are dismissed: CESTAT [para 5 to 7]

- Appeals dismissed: AHMEDABAD CESTAT

CX - An investigation was conducted at the end of one M/s PIL, wherein certain private records were taken - In those records, the ledger account shows certain receipt of goods from the appellant company and certain weighment slips were also found - On the basis of those documents and invoices issued by appellant, it was alleged that sponge iron and centre column of 0.900 M.T. has been cleared by appellant to M/s PIL - A SCN was issued to appellant alleging that they were engaged in clandestine removal of goods without payment of duty, therefore, duty sought to be demanded alongwith interest and penalty on both the appellants was also proposed to be imposed - The contention of revenue is that there is no third party involved in this matter - The said argument is not acceptable as Revenue itself is the litigant in this case who alleged that appellant is engaged in activity of clandestine removal of goods - The said allegation is based on record recovered from M/s PIL who is third party in this case - Strangely, no SCN has been issued to PIL to impose penalty under Rule 26 of CER, 2002 - Further, Revenue's case is based on the records recovered from M/s PIL and the statement of Shri Pankaj Agarwal - In terms of Section 9D of CEA, 1944, the Revenue was required to produce Shri Pankaj Agarwal in their defence to testify the documents recovered and the statement made by Shri Pankaj Agarwal are true and correct and thereafter the appellant was required to be offered for cross-examination of Shri Pankaj Agarwal - As the said act has not been done by the Adjudicating Authority, therefore, in terms of Section 9D of the Act, the evidence relied upon by the Revenue have no value in the eyes of law - Thus, the allegation of clandestine removal of goods is not sustainable against appellant as held by this Tribunal in the case of Kuber Tobacco India Ltd. 2016-TIOL-769-CESTAT-DEL - Accordingly, the impugned order deserves no merits: CESTAT

- Appeals allowed: DELHI CESTAT