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2020-TIOL-172-SC-GST-LB
National Anti Profiteering Authority Vs Hardcastle Restaurants Pvt Ltd
GST - Anti-Profiteering - Section 171 of the CGST Act, 2017 - A lthough the rate of GST on Restaurant services had been reduced from 18% to 5% w.e.f 15.11.2017, the respondent had increased the base prices of the products which were being sold by them and had thus maintained the same price which they were charging before the above reduction - Authority by its order dated November 16, 2018 [ 2018-TIOL-13-NAA-GST ] held that by not passing on the benefit of reduction in the GST rate the respondent had profiteered by an amount of Rs.7,49,27,786/- and since the customers are not identifiable the profiteered amount is required to be deposited in the Consumer Welfare Fund along with interest @18% - Petitioner filed an appeal before the Bombay High Court and it was held by order dated 01 October 2019 [ 2019-TIOL-2419-HC-MUM-GST ] that when the three members of the Authority had heard the Petitioner and participated in the entire hearing, the collectively signed decision, when the fourth member joined only for signing the order has resulted in violation of the principles of natural justice and fairness, and is liable to be set aside and the proceedings before the National Anti- Profiteering Authority - Respondent No.2. stand restored - Petition filed before the Delhi High Court was dismissed as withdrawn [ 2020-TIOL-1145-HC-DEL-GST ] - Government had taken the matter to the Supreme Court - Observing that the matter has already proceeded before the Authority, the Bench did not wish to interfere in the Special Leave Petition and accordingly the same was disposed of leaving all questions of law open: Supreme Court
- Petition disposed of :SUPREME COURT OF INDIA
2020-TIOL-2017-HC-SIKKIM-GST
Sun Pharma Laboratories Ltd Vs UoI
GST - It is the case of the petitioner that during the month of August, 2017 two consignments of pine bark extract and Crospovidone NF were transferred by the petitioner from Unit-II to Unit-I; that as the transfer did not qualify as supply in terms of Section 7 of the CGST Act, such transfer ought to have been effected under the cover of a delivery challan but, inadvertently two invoices came to be issued - Having realised the mistake, the transfers were not declared as “outward supply” in the Form GSTR-01 for the month of August, 2017 - However, at the time of filing of the GSTR-3B return for the month in question, the petitioner inadvertently took these two invoices into consideration and discharged GST amounting to Rs.15,82,938.72 and Rs.1,659.42, respectively, totalling Rs.15,84,598/- - Subsequently, the petitioner filed an online application dated 01.12.2018 in Form GST RFD-01A under Section 54 of the CGST Act seeking refund of such amount - Respondent no.2 passed an order dated 01.04.2019/02.04.2019 in Form - GST-RFD-06 under Rule 92(1) of the CGST Rules, 2017 read with Section 54 and Section 56 of the CGST Act rejecting the prayer holding that there was no provision under GST Act and GST Rules for refund of excess payment of tax, if payment was made through ITC - Commissioner(A) passed an order dated 11.09.2019 holding that the ground of rejection of the refund claim in the impugned order was erroneous, however, after an examination as to whether or not any excess payment of tax had actually occurred in the case, rejected the appeal by holding that there is no requirement of refund - Therefore, the present recourse of filing Writ as no GSTAT has been constituted to entertain an appeal u/s 112 of the Act.
Held: It is the positive case of the petitioner that excess payment of tax had not been carried forward to the subsequent months - The Appellate Authority, in the context of a claim for refund for excess payment of tax, may be justified to look into contemporaneous materials, but in such a circumstance, it will be imperative and mandatory for the Appellate Authority to afford an opportunity to the petitioner (appellant) to furnish its comments on the aspects on which the Appellate Authority would like to examine the matter by way of further enquiry - Petitioner is permitted to file a representation dealing with the aspects as reflected in paragraphs 8, 9 and 10 of the order dated 11.09.2019 and such representation would be filed within a period of eight weeks from today before the Appellate Authority - After the representation is filed, an opportunity shall be granted to the representative/counsel for the petitioner for hearing and, thereafter, the Appellate Authority shall pass a fresh order expeditiously - Petition allowed: High Court [para 20, 23]
- Matter remanded: SIKKIM HIGH COURT
2020-TIOL-2016-HC-MP-GST
Shri Shyam Baba Edible Oils Vs CC
GST - Grievance of the petitioner is that while raising the demand of tax vide impugned order in Form GST DRC-07 dated 18.09.2020, the foundational SCN/order qua financial year 2018-19 was never communicated to the petitioner who is an individual registered under the Act - State has disclosed that the SCN/order was communicated to the petitioner on his e-mail address and despite receiving the same, the petitioner failed to file any response - Petitioner submits that in view of rule 142(1) of the CGST Rules, 2017, the department is obliged to communicate the SCN/order by uploading the same on the website of revenue so that the aggrieved person can have access to the same and be aware of the reasons behind the demand to enable the aggrieved person to avail alternative remedy before the higher forum.
Held: A bare perusal of the rule 142 reveals that the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue - State in its reply has provided no material to show that show-cause notice/order No.11 dated 10.06.2020 was uploaded on website of revenue - It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded - This principle becomes all the more stringent when statutorily prescribed - Court has no manner of doubt that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act having not been followed by the revenue, the impugned demand dated 18.09.2020 vide Annexure P/2 pertaining to financial year 2018-2019 and tax period April 2018 to March 2019 deserves to be and is struck down - Petition stands allowed with liberty to the revenue to follow the procedure prescribed under Rule 142 of CGST Act: High Court [para 6.1, 7 to 10]
- Petition allowed: MADHYA PRADESH HIGH COURT
2020-TIOL-2015-HC-ALL-GST
Thai Mart Vs UoI
GST - Petitioner challenges the order dated 01st June, 2020 passed by the Appellate Authority whereby the respondent has denied refund due to the petitioner in spite of the fact that the petitioner had made exports of goods outside India - Refund has been denied on the sole ground that petitioner had exported goods through Foreign Post Offices in August and September 2017, while Notification dated 04th June, 2018 read with Circular No. 14/2018-Customs dated 04th June, 2018 has notified Exports by Post Regulations, 2018 w.e.f. 21st June, 2018 which provides for an entry to be presented to proper officer at the Foreign Post Office of clearance - Petitioner submits that the said Notification in no manner whatsoever affects supplies to be regarded as zero rated under Section 16 of the IGST Act read with Section 54(3) of the CGST Act; that the admitted position is that exports had taken place and confirmation from Foreign Post Office was available; that under the old VAT regime, the petitioner had been given refunds; that the new procedure for filing postal bill of exports doesn't take away the substantive right to claim refund of input tax credit in respect of zero rated supplies under the Statue.
Held: It is an admitted position that the Circular No. 14/2018-Customs dated 04th June, 2018 is neither clarificatory nor it determines the eligibility of allowing refund of Input Tax Credit on exports - In any event, the new procedure cannot be made applicable from a retrospective date - Consequently, the impugned orders dated 01st June, 2020 passed by respondent no.3 as well as the orders dated 11th March, 2019 and 22nd July, 2019 issued by respondent no.2 are set aside and the matter is remanded back to the Original Adjudicating Authority i.e. Assistant Commissioner, who in turn is directed to decide the same in accordance with law within four weeks - Petition disposed of: High Court [para 6, 7]
- Petition dismissed: ALLAHABAD HIGH COURT
2020-TIOL-2014-HC-DEL-GST
Medical Bureau Vs Commissioner of CGST
GST - Petitioner challenges the order dated 01st June, 2020 passed by the Appellate Authority whereby the respondent has denied refund due to the petitioner in spite of the fact that the petitioner had made exports of goods outside India - Refund has been denied on the sole ground that petitioner had exported goods through Foreign Post Offices in August and September 2017, while Notification dated 04th June, 2018 read with Circular No. 14/2018-Customs dated 04th June, 2018 has notified Exports by Post Regulations, 2018 w.e.f. 21st June, 2018 which provides for an entry to be presented to proper officer at the Foreign Post Office of clearance - Petitioner submits that the said Notification in no manner whatsoever affects supplies to be regarded as zero rated under Section 16 of the IGST Act read with Section 54(3) of the CGST Act; that the admitted position is that exports had taken place and confirmation from Foreign Post Office was available; that under the old VAT regime, the petitioner had been given refunds; that the new procedure for filing postal bill of exports doesn't take away the substantive right to claim refund of input tax credit in respect of zero rated supplies under the Statue.
Held: It is an admitted position that the Circular No. 14/2018-Customs dated 04th June, 2018 is neither clarificatory nor it determines the eligibility of allowing refund of Input Tax Credit on exports - In any event, the new procedure cannot be made applicable from a retrospective date - Consequently, the impugned orders dated 01st June, 2020 passed by respondent no.3 as well as the orders dated 11th March, 2019 and 22nd July, 2019 issued by respondent no.2 are set aside and the matter is remanded back to the Original Adjudicating Authority i.e. Assistant Commissioner, who in turn is directed to decide the same in accordance with law within four weeks - Petition disposed of: High Court [para 6, 7]
- Petition disposed of: DELHI HIGH COURT
2020-TIOL-2013-HC-MP-GST
Akash Garg Vs State of MP
GST - Grievance of the petitioner is that while raising the demand of tax vide impugned order in Form GST DRC-07 dated 18.09.2020, the foundational SCNs qua financial year 2018-19 and 2019-2020 was never communicated to the petitioner who is an individual registered under the Act - State has disclosed that the SCN/orders was communicated to the petitioner on his e-mail address and despite receiving the same the petitioner failed to file any response - Petitioner submits that in view of rule 142(1) of the Rules, 2017, the department is obliged to communicate the SCN/orders by uploading the same on the website of revenue so that the aggrieved person can have access to the same and be aware of the reasons behind the demand to enable the aggrieved person to avail alternative remedy before the higher forum.
Held: A bare perusal of the rule 142 reveals that the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue - State in its reply has provided no material to show that show-cause notice/orders No.11 and 11a dated 10.06.2020 were uploaded on website of revenue - It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded - This principle becomes all the more stringent when statutorily prescribed - Court has no manner of doubt that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act having not been followed by the revenue, the impugned demand dated 18.09.2020 vide Annexure P/1 and P/2 pertaining to financial year 2018-2019 and 2019-2020 and tax period September, 2018 to March, 2019 and April, 2019 to May, 2019 respectively, deserves to be and is struck down - Petition stands allowed with liberty to the revenue to follow the procedure prescribed under Rule 142 of CGST Act: High Court [para 6.1, 7 to 10]
- Petition allowed : MADHYA PRADESH HIGH COURT
2020-TIOL-2012-HC-DEL-GST
Dish Infra Services Pvt Ltd Vs UoI
GST - Court directs the Central Board of Indirect Taxes (CBIC) to decide the petitioner's representation dated 30th June, 2020 along with the additional representation to be made within two weeks, within eight weeks from the date of filing of the additional representation - Petition disposed of: High Court
- Petition disposed of : DELHI HIGH COURT
2020-TIOL-72-NAA-GST
Director-General Of Anti-Profiteering Vs Logix Infrastructure Pvt Ltd
GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant has alleged that the Respondent had not passed on the benefit of the input tax credit by way of commensurate reduction in price to the Applicant in respect of the purchase of flat No. 804, in Tower J in the Respondent project "Logix Blossom County", Sector-137, Noida-Greater Noida Expressway, Uttar Pradesh - DGAP has submitted his report under Rule 129 (6) of CGST Rules, 2017 on 04.04.2018 pertaining to the period w.e.f. 01.07.2017 to 31.09.2018 - DGAP has stated that it is clear that the input tax credit as a percentage of the total turnover that was available to the Respondent during the pre-GST period (April 2016 to June 2017) was 0.71% and during the post-GST period (July 2017 to August 2018), it was 0.85% which confirmed that post-GST the Respondent had benefited from additional input tax credit to the tune of 0.14% [0.85% (-) 0.71%] of the turnover - Accordingly, DGAP has concluded that the additional input tax credit of 0.14% of the turnover should have resulted in the commensurate reduction in the base price as well as cum-tax price and based on the above-mentioned CENVAT/input tax credit availability in the pre and post-GST period and the details of total demand raised post-GST, on the Applicants and other home buyers on which GST liability @ 12% was discharged by the Respondent during the period 01.07.2017 to 30.09.2018, the Respondent has realised an excess amount to the tune of Rs.3880/- from the Applicant no. 1 and Rs.3929/- from Applicant No. 2 which included both the profiteered amount @0.14% of the base price and GST on the said profiteered amount - Further he has realised an excess amount of Rs.13,24,469/- which included both the profiteered amount @0.14% of the pre-GST base price and GST on the said profiteered amount, from 353 other recipients who were not Applicants in the present proceedings - Authority had observed certain discrepancies in the DGAP's Report dated 03.04.2019 and accordingly ordered reinvestigation in the matter in terms of 133 (4) of CGST Rules, 2017 on the grounds mentioned in its I.O. No. 22/2019 dated 18.12.2019 - DGAP furnished his Report dated 27.02.2020 in accordance with Rule 129 (6) of the CGST Rules, 2017 - The DGAP has stated that on receipt of the aforesaid Order from this Authority on 20.12.2019, the documents/information submitted by the Respondent was re-examined and cross-verified with the Report dated 03.04.2019 submitted by the DGAP before this Authority and all the issues as mentioned in the order of this Authority have been duly covered in this report - DGAP has further reported that the amount of profiteering by the Respondent on account of contravention of provisions of Section 171 of the CGST Act, 2017 for the period covered was correctly estimated as Rs.13,32,278/- - Respondent vide his submissions dated 05.06.2020 has accepted his liability of passing on the benefit of additional ITC as per the report of the DGAP and has also submitted that he had passed on the benefit of Rs.13,32,278/- to his customers/flat buyers by way of credit notes and by way of reducing the instalments to be paid by his homebuyers against the demands pending from them and the proof of the same has also been submitted before the DGAP - This claim of the Respondent has been accepted as verified by the DGAP vide his supplementary report dated 20.07.2020 - Applicant No. 1 & 2 have stated that they had booked their flats with the builder on 31.10.2013 and as per the builder buyer agreement, the flats were to be delivered by 31.10.2015; that the Respondent raised the final invoices on 19.01.2020 after receipt of the Completion Certificate from NOIDA in January 2017 but one year after receiving the Completion Certificate and by that time GST had been implemented thus resulting in extra financial burden to them which was Rs.3,00,000/- approx.
Held: Insofar as the claim of the appellants regarding extra financial burden incurred by them is concerned, it is pertinent to mention that as per the provisions of Section 171 of the CGST Act, 2017 read with Rule 127 and 133 of the CGST Rules, 2017, this Authority has only been mandated to ensure that both the benefits of tax rate reduction and ITC are passed on to the customers - Therefore, this Authority has no mandate to look into the matter whether the Respondent has wrongly charged GST from the Applicants - The Applicants may take up the matter with the jurisdictional CGST/ SGST officers - Authority agrees with the computation made by the DGAP of the profiteered amount - Directs that since the Applicant No. 1 & 2 have not submitted acknowledgement of having received the benefit, the Commissioner concerned is directed to ensure that the amount profiteered by the Respondent is passed on to the above Applicants - DGAP is directed to ensure that the interest @18% is paid to the eligible home buyers and report confirming payment of the interest be submitted - In case the interest is not paid, the same shall be recovered by the CGST/SGST Commissioner concerned and paid to the eligible buyers - Respondent has committed an offence u/s 171 of the Act, however, since the provisions of Section 171(3A) have come in to force w.e.f. 01.01.2020 whereas the period during which violation has occurred is w.e.f. 01.07.2017 to 31.12.2018, hence the penalty prescribed under the above Section cannot be imposed on the Respondent retrospectively - Accordingly, Show Cause Notice directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him, is not required to be issued - DGAP in his report dated 03.04.2019 has reported that in the project 'Blossom County', there were 2381 total number of units spread across 17 towers, out of which Completion Certificate had been received for a total of 1454 units spread across 10 towers and the remaining 927 units in 7 towers were under construction - Keeping in view the above findings of the DGAP there are sufficient reasons to believe that there is need to examine whether the Respondent has passed on the benefit of ITC to the buyers of the remaining 7 towers or not, therefore, Authority, in terms of the provisions of Section 171 (2) of the CGST Act, 2017 directs the DGAP to further investigate the above 7 towers of the project of the Respondent for violation of the provisions of Section 171 of the CGST Act 2017 and to submit his Report to this Authority in terms of Section 171(2) of CGST Act 2017 - Order is being passed read with Notification No. 65/2020-Central Tax dated 01.09.2020: NAA
- Application disposed of: NAA | |
