2020-TIOL-1705-HC-KERALA-GST

Cheenu Amma Aalloy Pvt Ltd Vs State Tax Officer

GST - Aggrieved by the orders passed u/s 130 of the Act of confiscation of goods as well as vehicles in which the goods were being transported, petitioner is before the High Court.

Held: It is not in dispute that the reasons that weighed with the adjudicating authority while passing the impugned orders of confiscation were not enclosed with the said orders – Bench is of the view that Exts.P4 and P4(a) orders have to be quashed on the ground that they do not reflect an application of mind by the adjudicating authority on the objection/ explanation of the assessee against the proposal for confiscation – It is well settled in law, the absence of reasons by an adjudicating authority in the order passed by him would suggest a non-application of mind by the adjudicating authority and the presumption to be drawn by the reviewing court is that the adjudicating authority did not have any reason to give - Exts.P4 and P4(a) orders shall stand quashed and the matter is remanded to the adjudicating authority for a reconsideration of the matter and to pass fresh orders after hearing the petitioner - Petitioner is directed to appear before the 1st respondent at his office on 11:00 AM on 19.10.2020 and the 1st respondent shall pass fresh orders as directed within a week thereafter: High Court [para 5, 6]

- Petition disposed of: KERALA HIGH COURT

2020-TIOL-1704-HC-AHM-GST

Aniket Exports Vs UoI

GST - Petitioner has prayed for appropriate directions to the respondent to forthwith grant refund of IGST paid on export by the petitioner from August 2017 along with appropriate interest on such refund amount - refund was not being paid for the reason that the writ petitioner had inadvertently mentioned the drawback claim under column - A instead of column - B.

Held: Similar issue had arisen and was duly dealt in the case of M/s. Amit Cotton Industries = 2019-TIOL-1443-HC-AHM-GST - said judgement has attained finality and this Court, while allowing the petition, directed for refund of the IGST paid in regard to the goods exported with 7% simple interest from the date of shipping bills till the date of actual refund - present petition also deserves to be allowed in the same terms, and is, accordingly, allowed: High Court [para 4, 6]

- Petition allowed: BOMBAY HIGH COURT

2020-TIOL-1703-HC-DEL-GST

Spirotech Heat Exchangers Pvt Ltd Vs UoI

GST - Petition had been filed seeking refund of outstanding IGST amount of Rs.7,61,176/- and the Court had on 01/22 September 2020 passed an order in this regard and directed that the needful be done by the respondent within ten days – In pursuance thereto, the counsel for respondent Revenue has placed on record a letter dated 29th September, 2020 issued by Deputy Commissioner (Legal) stating that pending IGST refund of Rs.7,61,176/- has been scrolled out to the petitioner vide Scroll No.26339/2020 dated 29th September, 2020 - Petitioner admits that they have received pending IGST refund of Rs.7,61,176/- - Consequently, the present writ petition is disposed of as satisfied: High Court [para 4 to 6]

- Petition disposed of: DELHI HIGH COURT

2020-TIOL-1700-HC-TRIPURA-GST

Sarvasiddhi Agrotech Pvt Ltd Vs UoI

GST - On the premise that the petitioner had evaded payment of GST, the department issued a SCN dated 12.03.2019 - Case of the department is that the petitioner was selling packaged rice with registered trade mark, which activity, after 22.09.2017 was subject to Central as well as State GST which the petitioner had not paid - SCN is issued for recovery of unpaid GST on the seized value of rice stock as well as on the sale of such rice for the period 22.09.2017 to the date of seizure viz. 17.07.2018 - Petitioner put up a defence that some old stock was returned due to quality disputes and the same were lying in the godown on the day of the visit of the officers and that in any case, after 22.09.2017 when GST was introduced on sale of rice with packaged marking of registered trademark, they had discontinued sale of such rice - demand of GST as proposed in the SCN has been confirmed with interest and penalty - petition filed before High Court against this order.

Held: Bench is not inclined to entertain the petition on the short ground of availability of alternate remedy - In the present case, the order in original is appealable and eventually if the assessee is aggrieved by such appellate order also, further appeal would be available before the High Court - Tribunal of GST is considered the final fact finding authority against whose decision appeal would lie before the High Court on substantial question of law - In the present case, Bench does not see any reason whatsoever as to why such mechanism contained in the statute should be dismantled and the petitioner should be allowed to bypass the appeal route and approach the High Court directly in a Writ petition - In the present case, the petitioner has raised number of disputed questions of facts about the nature of its activities and the manner in which the petitioner was selling rice after 22.09.2017 - It is not possible for this Court, nor even necessary to examine these disputed questions of facts acting as a first appellate authority in a writ petition - such highly disputed questions of facts must be examined by the appellate authority and not by the Court in a writ petition - Order passed by the adjudicating authority is a speaking order and cannot be criticised by suggesting that no reasons are recorded or that it is a non-speaking order - Petition is dismissed - Appellate forum, if the petitioner files appeal within a period of two weeks, shall entertain the same on merits without raising a question of limitation: High Court [para 5, 6, 7, 9]

- Petition dismissed: TRIPURA HIGH COURT

2020-TIOL-263-AAR-GST

Kolhapur Foundry And Engineering Cluster

GST - Applicant is involved in promotion of commercial activities relating to Foundry industry and preservation of environment through its sand reclamation plants - used/waste sand of foundry industry is neither capable of being reused nor being capable of being dumped anywhere in the open due to environmental reasons viz. pollution - applicant processes such waste sand by heat treatment and various other set of small procedures and sand is thus reclaimed and made re-usable - applicant, therefore, seeks a ruling in respect of the following questions viz. whether the activity of applicant is supply of goods or supply of job work services and whether the used waste sand which is of the value Nil (based on valuation certificate by engineer) will have any impact on valuation.

Held: From a combined reading of the definition of 'job work' and the procedure of job work as prescribed u/s 143 of the Act and rule 45 of the Rules, it is the principal who will send inputs to the job worker for undertaking any treatment or process that may or may not amount to manufacture and will bring back same after completion of the job work - in the present case, the applicants have received waste sand having no commercial and market value at their plants from different foundries under cover of rule 55 challans; that the used waste sand is stored at common pool storage location for production activity and it is not possible to segregate the same as per the receipt from foundries - the chemical properties of sand are changed and the quality of sand is good for foundry use - activity undertaken by the applicant, therefore, satisfies the conditions of the term 'manufacture' u/s 2(72) of the Act - considering the quality, composition, distinct character and use of the product that emerges from the process and treatment undertaken, the finished product satisfies the definition of the term 'goods' mentioned u/s 2(52) of the Act - supplied material is only waste of the foundry industry and not a byproduct or outcome of any manufacturing process - concept of job work already exists in Central Excise where a principal manufacturer can send inputs or semi-finished goods to a job worker for further processing - applicant does not satisfy the conditions mentioned for the term 'job work' u/s 2(68) of the Act, hence the activity carried out is not covered under Job Work services and is out of scope of supply of services - jurisdictional officer has submitted an invoice dated 7th December 2019 obtained from the applicant which shows the rate of sand is Rs.2.50 per kg while the market rate of fresh sand is Rs.3.00 per kg - subject transaction is supply of goods i.e. sale of ready to use sand for the foundry industry and not supply of job work services - in the subject case, the applicant has themselves admitted that the value of input used sand is Nil and the same has been accepted by the jurisdictional office also and not disputed - It appears from the applicant's submissions that their rate of Rs.2.50 per kg on output supply of sand has taken into account the valuation of input sand at Nil value - To conclude, the activity of the applicant is supply of goods and the used waste sand of Nil value has an impact of valuation: AAR

- Application disposed of: AAR

2020-TIOL-262-AAR-GST

Yulu Bikes Pvt Ltd

GST - Applicant is engaged in renting of vehicles like e-bikes (Miracle) and bicycles (Move) through a technology driven mobility platform - They enter into contract/agreement with the customers with regard to usage/renting of the e-bikes and bicycles and charge based on the time of usage of such vehicles - Applicant is currently charging GST @18% [SAC 9966] in respect of the said services and seeks a ruling in respect of the following question so as to confirm their understanding of law - 'Whether renting of e-bikes and bicycles without operator can be classified under SAC 9973 as leasing or rental services without operator, Sl. no. 17(vii) of 11/2017-CTR'.

Held:  Heading 9966 reads as 'Rental services of transport vehicles with or without operators' - Heading 9973 reads as 'Leasing or rental services with or without operator and includes rental or operational leasing of machinery and equipment, personal and household goods, but does not include leasing services of machinery and equipment of person and household goods on a purely financial service basis' - Further, sub headings of 9973 pertain to other goods, IPR etc. with no mention of transport goods/vehicle - Thus the applicant's services are squarely covered under SAC 9966 - Specific description is preferred to general one as per the Explanatory Notes and hence Authority concludes that the applicant's activity is classifiable under Heading 9966 - Applicant's interpretation that post 30th September 2019, renting/leasing of all goods without operator should be falling under heading 9973 is not correct and hence is not tenable under law for the reason that the so-called amendment by notification 20/2019-CTR dated 30.09.2019 [w.e.f 01.10.2019] is to the rate of GST for the services covered under SAC 9973 but not to the classification of services - Further, the amendment amends entry bearing Sl. no. 17 covering the services classified under SAC 9973 to substitute "Leasing or rental services without operator, other than (i), (ii), (iii), (iv), (vi) and (viia) above” for item (viii) in column 3, therefore, the said amendment is irrelevant to the instant case - Held, therefore, that renting of e-bikes and bicycles without operator cannot be classified under heading 9973, Sl. 17(viia) of 11/2017-CTR  so as to attract s ame rate of central tax as applicable on supply of like goods involving transfer of title in goods  viz. e-bikes [GST @5%] and bicycles [GST @12%]; rightly classifiable under SAC 9966 @18% GST: AAR

- Application disposed of: AAR

Ikea Trading India Pvt Ltd Vs CTT

VAT - Appellant purchased products from a number of domestic vendors situated outside the State of Delhi against Form H in terms of Section 5(3) and 5(4) of the Central Sales Tax Act, 1956 and exported the same to its group companies outside India. All such sales and purchases are outside the tax net in terms of Section 6(1) of the Central Sales Tax Act, 1956. However, the Value Added Tax Officer, Export-Import Cell, Department of Trade and Taxes, Govt. of NCT of Delhi, being the Assessing Authority, issued default assessment notices dated 14.09.2012, for tax, interest and penalty for the disputed period. OHA upheld the order of VATO. Assessee filed an appeal against the order of the OHA to the Tribunal. While the appeal before the Tribunal is pending, stay was granted to the assessee on the condition of pre-deposit. Tribunal has declined to go into the merits of the case. The prima facie case of the Appellant has not been evaluated by the Tribunal while exercising its discretion under Section 76(4) of the Act. The Appellant had pleaded strong prima facie case for complete waiver of pre-deposit. All the aspects enumerated by assessee are pertinent. Unfortunately, the same have not been taken into consideration. While the Tribunal is correct in observing that these questions would have to be examined when the appeals are taken up finally on for disposal, but at the same time, these aspects would also have to be cursorily examined for arriving at the satisfaction about the prima facie on merits, for deciding the stay application. Impugned order also does not record any valid or cogent reason which would indicate application of mind on part of the Tribunal. Since the order does not contain any material grounds for rejection of stay application, it is liable to be quashed on this ground itself. This kind stereotypical, mechanical order without application of mind to the facts of the case, is not in accordance with the law and the decisions of the courts laying down guidelines for appellate authorities to exercise its discretion under the provisions of the Act.

- Assessee's Appeal allowed: DELHI HIGH COURT

SERVICE TAX

CENTRAL EXCISE

CUSTOMS