Amman Transports Vs ASTO

GST - The goods of petitioner were detained for the reason that the validity period of the e-way bill that accompanied the transportation of goods had already expired - Detention seems justified - The petitioner submits, however, that there is an issue regarding the legality of inclusion of cess component in quantification of amount liable to be paid under S. 129 of GST Act - Respondents are directed to release the goods and vehicle on petitioner furnishing a Bank guarantee for the amount demanded in order: HC

- Writ petition disposed of: KERALA HIGH COURT

2020-TIOL-2029-HC-KERALA-GST

PH Muhammad Kunju And Brothers Vs ASTO

GST - The goods of petitioner were detained for the reason of mis-match in the value of goods transported as shown in the e-way bill and job work invoice that accompanied the transportation of goods - In as much as there could be no doubt with regard to the identity of goods that were being transported, and the difference in the value shown in the e-way bill was only on account of the requirement of maintaining uniformity in the value shown in the tax invoice raised by the job worker and the e-way bill generated by him, the detention was wholly unjustified - Accordingly, the respondents are directed to release the goods and the vehicle to the petitioner on his producing a copy of this judgment before the respondent: HC

- Writ petition allowed: KERALA HIGH COURT

2020-TIOL-76-NAA-GST

Director-General Of Anti-Profiteering Vs Procter & Gamble Home Products Pvt Ltd

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Allegation of Profiteering by not passing on the benefit of reduction in the rate of GST from 28% to 18% w.e.f 15.11.2017 - DGAP in its report has stated that the base prices of 1383 goods had been increased by respondents after the rate of tax was reduced on them and hence there has been contravention of the provisions of s.171 of the Act.

Held: Respondents are liable to pass on the benefit of GST rate reduction from 28% to 18% as was notified by the Central and State governments vide notification 41/2017-CTR dt. 14.11.2017 w.e.f 15.11.2017 - It is established that the respondents have not passed on the benefit of above tax reduction to the ultimate consumers in terms of s.171(1) of the Act w.e.f 15.11.2017 to 30.09.2018 - On the basis of pre-rate reduction rate of 28% and the post-rate reduction GST rate of 18% and the details of outward taxable supplies other than zero rated, nil rated and exempted supplies of the SKUs sold during the period from 15.11.2017 to 30.09.2018 as have been supplied by the respondent themselves, the amount of net higher sales realisation due to increase in the base prices of the impacted SKUs despite the reduction in the GST rate from 28% to 18% or the profiteered amount is determined as Rs.2,41,51,14,485/- as per the provisions of s.171(1) and (2) of the Act read with rule 133(1) of the Rules, 2017 - The profiteered amount in respect of all the three respondents is further determined as Rs.181,51,46,262/- in respect of respondent no. 1 M/s Procter & Gamble Home Products Pvt. Ltd., (ii) Rs.2,00,30,807/- in respect of respondent no. 2 M/s Procter & Gamble Hygiene & Healthcare Ltd. and Rs.57,99,37,416/- in respect of respondent no. 3 i.e M/s Gillette India Ltd. on the sale transactions made by the said respondents w.e.f 14.11.2017 to 30.09.2018 which has been individually and collectively computed in respect of all the 33 States and Union Territories as per the DGAP report dated 31.01.2020 - Respondents are directed to reduce the prices of all the SKUs commensurately in respect of which profiteering has been computed - respondents are directed to deposit 50% of the profiteered amount in the Central Consumer Welfare Fund and the balance 50% in the Consumer Welfare Fund of the 33 States/UTs since the recipients who are millions of ordinary customers are not identifiable - above amounts to be deposited along with interest @18% - amounts to be deposited within three months failing which they shall be recovered by the Commissioners of the Central Tax/State/UT Tax concerned - All the claims of the respondents of passing on the benefit of rate reduction by way of post-rate reduction discounts, reduction in post-rate reduction in prices, increase in grammage/quantity, passing on of more benefit in respect of certain SKUs and charging of lower prices than the average prices etc. have been found out be wrong and against the provisions of s.171(1) as well as Article 14 of the Constitution - DGAP is directed to carry out further investigation to compute the profiteered amount till the date it has been passed on by the respondents and furnish report as per rule 129(6) of the Rules - Since the DGAP has not computed the profiteered amount on the stock that was lying with the respondents and their distributors and retailers including the modern retailers as on 15.11.2017, DGAP is directed to further investigate and compute the profiteered amount on the above stock and submit a report - It is evident that the respondents had not affixed stickers on the SKUs which were manufactured by them after 15.11.2017 and also on the stock lying with them and their retailers as on 15.11.2017 as per the direction conveyed by the Ministry of Consumer Affairs, Food and Public Distribution, GOI, therefore, DGAP is directed to supply copy of this order to the authorities concerned for taking cognisance of the violations of the Legal Metrology (Packaged Commodities) Rules, 2011 framed under the Legal Metrology Act, 2009 and taking appropriate action - Above order is required to be monitored by the Commissioners concerned and a compliance report is to be submitted within four months - Insofar as imposition of penalty is concerned for violation of the provisions of s.171 of the Act, as the period involved is from 15.11.2017 to 30.09.2018 during which period section 171(3A) was not in existence having been inserted by the Finance Act, 2019 w.e.f 01.01.2020, penalty cannot be imposed retrospectively - SCN in this regard is, therefore, not required to be issued - Order is being passed taking into account notification 65/2020-CT: NAA

- Application disposed of: NAA  

Devcon Systems & Projects Pvt Ltd Vs CCGST & CE

CX - The assessee is engaged in manufacture of Pully, Belt Conveyor, parts and components of Conveyor System - SCN was issued alleging irregular availment of Cenvat credit during period 2013-14 against invoices issued by M/s. Roshanlal Bhagirathmal, a registered dealer - It is alleged in SCN that the assessee did not purchase the inputs from said dealer - It is the case of department that the said inputs as claimed to have been received by assessee in their factory premises on strength of invoices issued by M/s. Roshanlal Bhagirathmal are not the eligible inputs for the purpose of taking credit in terms of CCR, 2004 and CER, 2002, as the same were not purchased from said dealer - The issue is no more resintegra in view of clarification issued by CBIC vide Circular 1003/10/2015-CX issued for transit sale through dealer - It is unambiguously clear that if the invoice issued by manufacturer contains the details of assessee as consignee, they are entitled to Cenvat credit even if the buyer is unregistered - The impugned orders are set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2020-TIOL-1643-CESTAT-MUM

Ahuja Yarn Agency Vs CC

Cus - In this appeal of assessee, against O-I-O which has determined fine of Rs. 5,00,000 for redemption of goods confiscated under section 111(m) of Customs Act, 1962 and imposed penalty of Rs. 2,00,000 under section 112(a) of Customs Act, 1962, it is claimed that the adjudicating authority has invoked the provision for confiscation without any valid ground to do so - The value had not been re-determined under section 14 of Customs Act, 1962 despite the goods having been re-classified under chapter 56 of First Schedule to Customs Act, 1962 - However, in the statement recorded by investigating officer, the importer had admitted to error in description and tariff item, corresponding to the description of goods, in the bill of entry - The argument of assessee that the revised description, as 'polyester feather yarn', is the same as 'polyester filament yarn' in the original declaration is, therefore, not tenable and may have been an arguable submission if the revised classification was also disputed in this appeal - Assessee has not disputed the consequent revision in the tariff item which has since attained finality by not being challenged - Section 111(m) of Customs Act, 1962 is liable to be invoked for misdeclaration of value and any other particular in bills of entry and, not restricted to material particular having bearing on differential duty, cannot be interpreted in so liberal manner, as proposed by assessee - In re Lewek Altair Shipping Pvt Ltd 2019-TIOL-322-CESTAT-HYD , the Tribunal, having restored the declared classification, set aside the confiscation as well as penalty - In that decision, with the exclusion of penal consequence resting on such facts, any incidental observation, pertaining to provisions of law that had not been the basis for granting relief, is in the nature of obiter which is no precedent - Therefore, the invoking of empowerment to confiscate in the impugned order cannot be faulted as also the imposition of penalty which follows there from - However, as pointed out by assessee, there is no finding that goods were undervalued - The fine determined for redemption and the penalty imposed appear disproportionate - Therefore, while upholding the confiscation of impugned goods under section 111(m) of Customs Act, 1962, the fine is restricted to Rs. 50,000 and penalty under section 112(a) of Customs Act, 1962 to Rs. 50,000: CESTAT

- Appeal partly allowed: MUMBAI CESTAT

2020-TIOL-1642-CESTAT-DEL

Holiday Junction Vs CCE & CGST

ST - ROM - Before the Commissioner (A), the O-I-O was challenged and the same was acknowledged to be received by assessee on 23.06.2014 - However, the appeal was filed on 02.12.2014 though it was to be filed on or before 22.08.2014 thereby causing a delay of 3 months and 10 days in filing the same before Commissioner (A) - The applicant had, therefore, filed an application praying for condonation of delay before Commissioner (A) and order of Commissioner (A) is in respect of the said application praying for condonation of delay - In view of Section 35 of Central Excise Act, delay was not condoned - As a result where of the appeal could not have sustained - It was this order that was assailed before Tribunal and Tribunal also while relying upon the decision of Apex Court in the case of Singh Enterprises 2007-TIOL-231-SC-CX has upheld the order of Commissioner (A) - The ground of death as taken is also not sufficient in explaining the impugned delay as admittedly the death of proprietor of assessee occurred during the pendency of proceedings before Commissioner (A) - There is no doubt about the fact that no demand can be confirmed and no recovery proceedings can be initiated against a dead person, as has already been held by Apex Court in case of Sabina Abraham 2015-TIOL-159-SC-CX and has been relied upon by Tribunal Chandigarh in case of M.K. Enterprises - Tribunal also in the case of Bharati Mulchand Chheda 2016-TIOL-694-CESTAT-MUM has held that once the factum of death of sole proprietor has come to the knowledge of Commissioner, he should have dropped the proceedings rather than passing the impugned order, but he chose to pass the impugned order against the dead person, which is not sustainable in law - In the present case, Commissioner (A) has not passed any order of confirming any demand against the dead person - The Order was squarely on the ground of limitation - The same has been upheld by Tribunal only because of the statutory mandate upon the Commissioner (A) to not to condone the delay beyond three months - Therefore, no infirmity found in the order under challenge: CESTAT

- Applications dismissed: DELHI CESTAT