Damu And Sons Sales Corporation Vs ASTO

GST - Validity of the e-way bill that accompanied the transportation of the goods had expired by the time of detention, therefore, noticing the said defect the respondent had issued a series of notices u/s 129(3) of the Act - Single Judge had while upholding the detention of the goods and vehicle observed that classification in the table under Rule 138(10) of the Rules, 2017 is essentially between 'over dimensional cargo' and 'other cargo'; that the contention of the petitioner that irrespective of whether his cargo can be categorised as over dimensional cargo or otherwise, he must get the benefit of the more beneficial provision so long as the mode of shipment is multimodal and in which at least one leg involves transport by ship is not acceptable; that the mere fact that the respondent had detained the goods did not, in any manner, prevent the petitioner from extending the validity period of the e-way bill, and producing a copy of the extended e-way bill before the authority for the purposes of seeking a clearance of the goods; nonetheless, the petitioner was permitted to clear the goods and the vehicle on furnishing a bank guarantee for the amount demanded in the impugned notices - appeal against this order.

Held: The fact that multimodal transport, including one leg by sea, having figured in all the three serial numbers indicates the distinction of ODC and other than ODC having been retained even after the insertion by notification 31/2019-CT dt. 28.06.2019 - This is an anomaly which, however, this Court cannot consider having intended only for serial No.4 -There is no authority for the appellant to commence the transport without such extension being carried out within eight hours as prescribed in the third proviso to rule 138(10) of the Rules - judgment of Single Judge affirmed and appeal dismissed in limine : Division Bench High Court [para 4 to 6]

- Appeal dismissed: KERALA HIGH COURT

2020-TIOL-2005-HC-AP-GST

MRF Ltd Vs Superintendent Of Central Tax

GST - Interest - Petitioner prays for issuance of  a Writ of Mandamus or any other appropriate writ or order or direction declaring that the proviso to Section 50 of the Act, 2017 inserted by Section 100 of Finance (No.2) Act, 2019 applies retrospectively from 01.07.2017 and consequently, set aside the demand notice dated 07.02.2020 for the months July and August,  2017; to  declare that the summary levy and demand of interest u/s 50 which is not preceded by an adjudication as per Section 73 of the CGST Act determining the principal amount payable is illegal and contrary to the scheme of the Act 2017 and principles of natural justice  and also alternatively declared that s.50(1) insofar as it seeks to levy interest on the gross tax liability without duly reducing the input tax credit available to the registered person is illegal. 

Held: Perusal of the notice issued on 7.2.2020 indicates that the petitioner has filed GST returns belatedly for the period from July, 2017 to March, 2018, therefore, the petitioner is requested to pay interest liability for all the returns filed after due date since July, 2017, within 15 days - After hearing both the parties and on perusal of the reply dated 21.2.2020 to the notice dated 7.2.2020, it is suffice to direct respondent No.1 to consider the reply and all the relevant  facts as narrated therein, afford opportunity of hearing to the petitioner and pass an order within one month  - Till then, adverse order, if any passed against the petitioner, shall not be given effect to - petition disposed of: High Court [para 2, 3]

- Petition disposed of: ANDHRA PRADESH HIGH COURT

2020-TIOL-2004-HC-AP-GST

Spy Agro Industries Ltd Vs UoI

GST - Petition is filed seeking issuance of a writ of Mandamus to declare the proceedings of the 5th Respondent vide Order  dated 29.01.2019 in Form GSTR-ASMT-13 insofar as imposing penalty of Rs.4,27,19,192/- against the Petitioner and consequential proceedings vide Order dated 12.08.2020, demanding the Petitioner to pay penalty as being illegal, arbitrary and contrary to the provisions of the Act as also violative of the Articles 14 and 21 of the Constitution of India.

Held: A  perusal of the material on record show that, a notice under Form GSTR-3A came to be issued, on 15.01.2019, for filing of GSTR-3B returns for the period from February to December 2018 under Section 46 of CGST Act, which was received, on 15.01.2019, itself - Without waiting for statutory period stipulated under the Act, assessment Order came to be issued in Form GSTR ASMT-13 under Section 62 of CGST Act, on 29.01.2019, directing the Petitioner to pay huge sum of money including penalty - Since the order came to be passed without following the principles of natural justice, the Writ Petition is allowed setting aside the impugned Order, dated 29.01.2019, and consequential proceedings dated 12.08.2020, and the matter is remanded back to the authorities concerned to deal with the same afresh, in accordance with law, after giving an opportunity of hearing to the Petitioner - Petition allowed: High Court [para 13, 14]

- Matter remanded: ANDHRA PRADESH HIGH COURT

2020-TIOL-2003-HC-KOL-GST

Sunita Jalan Vs Assistant Commissioner

GST -  A show cause notice dated February 4, 2020 was served upon the petitioner asking him to show cause as to why his registration should not be cancelled as the petitioner/taxpayer was found non-functioning/not existing at the principal place of business - Thereafter, an order of cancellation dated February 14, 2020 was passed and the petitioner was directed to pay the tax dues - It is the contention of the petitioner that the show cause notice was vague; that the order of cancellation of registration was passed with retrospective effect from October 26, 2019 and no opportunity of hearing was given to the petitioner - Aggrieved, the Petitioner is before the High Court in August 2020 - Counsel for Revenue argues that the petitioner has invoked the writ jurisdiction of this Court without exhausting the alternative remedy prescribed under the Goods and Services Tax Act, 2017; that the reply to the show cause notice was required to be uploaded on the website and a hearing would have been given to him on the basis of the reply, however, since no reply was forthcoming, the order was passed  on the understanding that the petitioner was not interested to contest the proceeding.

Held: Bench does not find any reason to invoke a high prerogative writ and allow the prayer of the petitioner to set aside the order of cancellation in view of the provisions of Sections 30 and 107 and in terms of which a party aggrieved by an order of cancellation may apply for revocation of cancellation/file appeal - petitioner shall exhaust the available remedy under the statute - The petitioner is at liberty to take such steps under the provisions of the statute -  Court has taken note of the fact that fiscal statutes have to be strictly construed and in such a situation where public revenue is involved, the Court should be slow to interfere especially when there are alternative efficacious remedies provided in the statute itself - Petition disposed of: High Court 

- Petition disposed of: CALCUTTA HIGH COURT

2020-TIOL-2002-HC-AP-GST

Spy Agro Industries Ltd Vs Assistant Commissioner Of Central Tax

GST - Petition filed seeking for issuance of a writ of mandamus declaring the garnishee notice issued by first respondent as illegal, improper and incorrect - Petitioner submits that GST liability could not be cleared in time due to certain unforeseen circumstances but subsequently the same was cleared  - case of the petitioner is that they discharged the tax liability of Rs.4,18,42,306/- through DRC-03 and also through GSTR-3B return and intimated the details of payment to 2nd respondent vide letter dated 10.08.2020 - impugned garnishee notice dated 26.08.2020 came to be issued by the first respondent requiring the 4th respondent to pay an amount of Rs.12,14,61,114/- on behalf of the petitioner u/s 79(1)(c) of the Act, 2017 - petitioner submits that without giving them an opportunity or notice about imposing penalty, passing an order directing the petitioner to pay Rs.4,27,19,191/- as penalty is illegal, improper and incorrect.

Held: Point which arises for consideration is whether the garnishee notice issued by the first respondent is in tune with the principles of natural justice - For the tax period January 2020 to June 2020, the Office of the Superintendent passed and assessment order in form ASMT-14 dated 13.08.2020 - An appeal against such order lies before the Commissioner of Central Tax (Appeals) on payment of amount and the period for filing the appeal shall be within three months from the date of communication of the order and the amount to be paid for admitting the appeal would be 10% of the remaining amount of tax in dispute arising from the said order - since the assessment order came to be passed on 13.08.2020, the petitioner had three months time for preferring the appeal but without waiting for the said period the impugned garnishee notice came to be issued on 26.08.2020 - insofar as the recovery for the period January 2019 to December 2019 is concerned, notice intimating discrepancy in the return came to be issued in form GSTR ASMT-10 on 28.07.2020 - Even before waiting till 27.08.2020, the time given to the petitioner to explain the reasons for discrepancies contained in the return, the garnishee notice for the said period came to be issued on 26.08.2020 to the bank in terms of s.79(1)(c) of the Act, 2017 - Inasmuch recovery proceedings were initiated even before the period given for filing reply is over, the same is in contravention of the principles of natural justice - Writ petition is allowed by setting aside the garnishee notice dated 26.08.2020 issued by the first respondent, however, leaving it open to the authorities to proceed in accordance with law: High Court [para 15, 16, 17, 20]

- Petition allowed: ANDHRA PRADESH HIGH COURT

2020-TIOL-285-AAR-GST

B R Sridhar

GST -  Applicant, being the owner of an immovable property, has entered into a Joint Development Agreement dated 19.05.2016 with M/s. Suprabhat Constructions, authorizing them to construct residential flats by incurring the necessary cost together with certain common amenities and upon the development of the said property, the applicant gets 40% share of undivided right, title and interest in the land proportionate to super built up area and 40% of car parking spaces - Applicant has sought a ruling as to whether the total amounts received by the Owner towards the advances or sale consideration of the flats fallen to his share of 40% in terms of the Joint Development Agreement dated 19.05.2016 and the subsequent Area Sharing Agreement dated 03.01.2018, are not amenable for payment of GST, since Applicant has sold or agreed to sell or gift the flats after obtaining Occupancy Certificate dated 26.08.2019 and that Applicant has not received any part of the sale consideration prior to the said date of occupancy certificate, thus falling under Entry No.5 of Schedule III of CGST Act read with Notification No. 11/2017-Central Tax (Rate) .

Held:  In the instant case the applicant stated that that their share of residential flats have been handed over by the developer after the issuance of completion / occupation certificate dated 26.08.2019 and also clause 1.7 of the Area Sharing Agreement restricts the right of the applicant to execute any sale agreement or any conveyancing deeds till the issuance Of completion certificate and taking over of their share of units / flats - Thus, the sale of said flats is not exigible to GST, if and only if they are sold after issuance of Completion / Occupancy certificate, in which case the said transaction is to be treated neither as supply of goods nor supply of services, in terms of Entry clause 5 of Schedule III - However, if the applicant themselves or the developer on behalf of the applicant have sold the applicant's share of units/flats prior to issuance of completion certificate, then the transactions amount to supply of "Works Contract Service" are liable to GST: AAR

- Application disposed of : AUTHORITY FOR ADVANCE RULING

Amorous Communications Vs CGST

Whether if demands and penalties are basis on which writ of demand is issued, assessee must challenge demands and penalties in accordance with statutory mechanism - YES : HC

- Assessee's writ petition disposed of : DELHI HIGH COURT

Joy Alukkas India Pvt Ltd Vs CC

Cus - Petitioner was permitted by the Single Judge to re-export the imported diamonds on the strength of the Kimberly Process Certificate now produced by him and subject to his paying the penalty and redemption fine under protest before the respondents - Appeal is directed against the said judgment of the Single Judge permitting the appellant to re-export the imported diamonds on paying the penalty and redemption fine and relegating the appellant to the appellate remedy.

Held: A reading of Circular 53/2003-Cus dated June 23, 2003 [Exhibit P5] makes it mandatory that KP Certificate should accompany the goods on import and even prior to its arrival, the copy of the certificate along with related documents are to be submitted for verification to the GJEPC - The Circular, which permit import of rough diamonds, mandates confiscation on violation of conditions - Bench, therefore, does not find any reason to interfere with the judgment of the Single Judge - appeal is dismissed in limine : Division Bench High Court [para 8]

- Appeal dismissed: KERALA HIGH COURT

2020-TIOL-1640-CESTAT-HYD

Ineda Systems Pvt Ltd Vs CCT

ST - The present application was filed by the assessee, seeking rectification of error apparent on record in the Final Order passed in the assessee's case - The applicant-assessee claimed that he foreign exchange in respect of appeal ST/30793/2018 filed against Order-in-Appeal No. HYD-SVTAX-RRCAPP- 223-17-18 (APP-I) dt.26.03.2017 has been realised on 27.04.2016, 27.05.2016 & 28.06.2016 but the claim was filed only on 28.07.2017 - It was canvassed that the date 27.04.2016 has been wrongly mentioned and it should have been 27.07.2016 as has been correctly recorded in the order of the first appellate authority.

Held - There had been a typographical error in mentioning the date of receipt of foreign exchange as 27.04.2016 instead of 27.07.2016. However, since this is not a case pertaining to the transitional period where the exports were made prior to 01.03.2016 and refund claim filed after the date, the ratio of the judgment of the Larger Bench in the case of Span Infotech (India) Pvt Ltd (supra) does not apply - It does not come to the rescue of the assessee since the application for refund was filed after one year from the date of receipt of the foreign exchange even after rectifying the mistake - Hence the date in the final order be read as 27.07.2016: CESTAT

- Application disposed of: HYDERABAD CESTAT

2020-TIOL-1639-CESTAT-BANG

Delta Infralogistics Worldwide Ltd Vs CC

Cus - The appellant-company holds license as Customs Broker - In the relevant period, the appellant filed BoE for Customs clearance of a cargo of Aluminium Tool Case and Packaging Material - Upon harboring suspicion, the Customs Department examined the goods - While the container was in the possession of Customs, the allegation was levelled on the appellant that its executive had broken the seal of the container without taking permission from the proper office - Hence it was alleged that the appellant violated the provisions of the CBLR 2018 - SCN was issued and enquiry was marked to the enquiring officer and the enquiry officer submitted his report and held the appellant is guilty of violation of Regulation 10(d) and Regulation 13(12) of CBLR 2018 and dropped the violation of Regulation 10(m) - Based on enquiry report, an adjudication order was passed revoking the appellant's license and directing forfeiture of security deposit - Penalty was also imposed on the assessee - Hence the present appeal.

Held - The only allegation against the appellants is that their Executive has broken the seal without proper authorization and thereby have violated the Regulation 10(d) and Regulation 13(12) of CBLR 2018 - The defense of the appellant from the very beginning is that they have submitted the explanation to the Assistant Commissioner of Import, SUB, Nhava Sheva and as per that the Customs endorsed the Bill of Entry and thereafter job order was issued by the Custodian and the seal was cut by the Seal Cutter Shri Shantaaram after informing the Examining Officer - The enquiry officer in spite of the fact that the appellant raised this objection, did not bother to examine the Seal Cutter Shri Shantaaram who allegedly cut the seal after seeing the job order issued by the Custodian - Further we find that the entire operation was done in the customs area and this is normal practice which is followed to facilitate physical examination by the Customs - It is found that there is no material on record to attribute any mala fide on the part of the Customs Broker executive and there is no evidence which has come on record suggesting he acted with mala fide in order to gain any advantage - We also find that had the enquiry officer conducted the full enquiry with the participation of Seal Cutter, Custodian and the Customs Examiner along with Bill of Entry, job order etc., the role played by the appellant could have been surfaced - Moreover, in the investigation conducted by the SIIB Branch, nothing adverse has been recorded against the appellant - Hence the order revoking the licence and imposing fine and penalty on the appellant thereby depriving them of their livelihood, is not justified and hence we set aside the impugned order by allowing the appeal of the appellant: CESTAT

- Appeal allowed: BANGALORE CESTAT