J Sivapriya Vs State Tax Officer

GST - Petitioner is aggrieved by detention of her vehicle by the respondents on suspicion of tax evasion in respect of the goods carried therein - It is the case of the petitioner that the owner of the goods is now not traceable and under the said circumstances, although proceedings under Section 130 of the GST Act have been completed against the petitioner, she must be permitted to get a release of the vehicle on furnishing a security for the redemption fine that would be imposed on the vehicle in lieu of confiscation.

Held: There is force in the contention of the counsel for Revenue that in view of an order having been passed under Section 130 of GST Act, the ownership of the vehicle now stands vested with the State Government as per the statutory mandate, and if the petitioner seeks a release of the vehicle, pending appellate proceedings that she wishes to pursue against the order passed under Section 130, she would have to pay the amount demanded above by cash and she cannot be permitted to get the release of the vehicle by furnishing a Bank Guarantee for the said amount - Accordingly, petition is disposed of by directing that, if the petitioner pays the amount of Rs.4,21,200/- to the respondents, then on such payment the respondent shall forthwith release the vehicle to the petitioner: High Court [para 3]

- Petition disposed of: KERALA HIGH COURT

2020-TIOL-1683-HC-AHM-GST

Mahadev Trading Company Vs UoI

GST - SCN and the order of cancellation of registration are assailed in the writ petition - Petitioner submits that without fixing a date for hearing and without waiting for any reply to be filed by the petitioner, the cancellation order was passed on 30.07.2020 whereby registration of the petitioners with GST department was cancelled; that although the cancellation order refers to a reply submitted by the petitioner and also about a personal hearing, but according to the petitioner neither they had submitted any reply nor were afforded any opportunity of hearing.

Held: Upon perusal of the SCN dated 20.07.2020, Bench notes that to such show cause notice no response can be given by any assessee; that the SCN is as vague as possible and does not refer to any particular facts much less point out so as to enable the noticee to give his reply - Without entering into the merits of the impugned order, Bench is convinced that the show cause notice itself cannot be sustained for the reasons already recorded and, therefore, the cancellation of registration resulting from the said show-cause notice also cannot be sustained - The impugned show cause notice dated 20.07.2020 and the impugned cancellation order dated 30.07.2020 are hereby quashed - Writ petition succeeds and is allowed: High Court [para 2, 5, 6]

- Petition allowed: GUJARAT HIGH COURT

2020-TIOL-1682-HC-AHM-GST

Sapphire Foods India Pvt Ltd Vs UoI

GST - Anti-Profiteering - Petitioner states that they no longer wish to press their relief challenging the vires of Section 171 of the CGST Act, 2017 , of course without prejudice to their rights to raise such issues at an appropriate stage by a separate petition - And effect of this relief being not pressed would be that the transfer application moved by the department before the Supreme Court for all such matters pending in different High Courts challenging the vires of the aforesaid provision would not be applicable in the case of this petition - Counsel for Revenue agrees, therefore, Application is allowed - Counsel for Revenue further prays that the interim order dated 30th June 2020, as extended from time to time, may be vacated - Bench also feels that the disposal of the said application may entail sufficient time to deal with the matter and so, it would be appropriate that the main matter itself may be finally heard - Accordingly, Bench directs that this petition be listed for final disposal on 12th October 2020: High Court

- Matter listed: GUJARAT HIGH COURT

2020-TIOL-1681-HC-KERALA-GST

Sify Technologies Ltd Vs Joint Commissioner Of State Tax

GST - Petitioner is aggrieved by Ext.P2 order passed by the 1st respondent, rejecting an application preferred by him for condonation of delay in filing returns wherein he had raised the claim for input tax credit.

Held: It is seen from Ext.P2 order of the respondents that the refusal to consider the delay condonation application was on account of Ext.P4 order having already been passed by the assessing authority, rejecting an application for refund preferred by the petitioner - The said authority had rejected the application for refund on finding that the returns claiming the input tax credit had not been filed within time - Petitioner has prefered Ext.P5 appeal against Ext.P4 order of the Assessing Officer before the Joint Commissioner [Appeals], Ernakulam, who is suo motu impleaded as the additional 3rd respondent in the Writ Petition - Taking note of the above situation and finding that if the 1st respondent considers the delay condonation application and finds valid reasons to condone the delay in filing returns, the petitioner would be in a position to claim the input tax credit claimed in the said returns, Bench deems it appropriate to dispose the Writ Petition with the directions: High Court

- Petition disposed of: KERALA HIGH COURT

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-1481-CESTAT-MUM

CCE Vs Ashapura Textiles Industires Pvt Ltd

CX - Revenue in their present appeal contends that even though the Commissioner in the impugned order held that fraud has been perpetrated by M/s Ashapura Textile Industries in availing fraudulent CENVAT credit in gross abuse of Rule 12B of Central Excise Rule 2002 but the penalty imposed is not in accordance with the provisions of the CCR or read with relevant provisions of Central Excise Act, 1944; that, therefore, the order of the adjudicating authority is not legal and proper since it failed to impose penalty under Rule 12(2)/Rule 15(2) of CCR 2004 read with section 11AC of Central Excise Act, 1944 - Besides, the Commissioner has erred in dropping penal proceedings against M/s Swastik Enterprises and other noticees.

Held: No reason found to interfere with the finding recorded by the Commissioner in paragraph 73.4 - It is a well settled position that if the show-cause notice brings out the offence fully and clearly, the fact that the exact rule under which offence falls is not material and the proceedings survive - So adjudicating authority found it proper to impose penalty on M/s ATI under Rule 13(1) of Central Excise Rules 2002 instead of 13(2) mentioned in the show-cause notice - Once penalty is imposed on the entity there is no scope for imposing penalty on the proprietor or partner separately - Hence, the appeal filed by the Revenue is devoid of merit – Appeal rejected: CESTAT [para 9]

- Appeal rejected: MUMBAI CESTAT

CUSTOMS

2020-TIOL-1482-CESTAT-MUM

Cus - The assessee had imported six consignments of cloves and filed the Bills of Entry for duty assessment - Since, the international prices journal reflected the value of cloves as USD 4,250 PMT at relevant point of time; the assessments were made provisional by considering such published price in journal - The assessee had paid the differential duty under protest, owing to the reason that it had disputed the grade of impugned goods - The Bills of Entry were finally assessed by considering the declared value of USD 3,500/PMT - This has resulted in a refund of Rs.35,94,794/- - However, while passing the adjudication order, the original authority had credited such excess paid duty amount to Consumer Welfare Fund (CWC) on the ground that the assessee had failed to fulfil the conditions of unjust enrichment inasmuch as it had failed to prove that the incidence of excess paid duty has not been transferred to any other person and the same has been borne by it - For non-submission of proper documentary evidences, the adjudication order was set aside by Commissioner (A) - It is an admitted fact of record that the assessee did not submit the evidence either before Commissioner (A) or before this Tribunal to substantiate its claim that it had suffered the duty incidence by itself and not passed on the same to the buyers or any other person - Thus, as per the statutory mandates, assessee should not be eligible for the benefit of refund and in such an eventuality; the amount of refund should appropriately be credited to CWF - Hence, no substance found in the appeals filed by assessee that the amount of refund should be paid to it: CESTAT

- Appeals dismissed: MUMBAI CESTAT