Mohammed Yunus @ Mohameed Yunus Vs UoI

GST - Petitioner has filed the third bail application u/s 439 in the matter of FIR registered for offence u/s 132(1) of the CGST Act, 2017 - It is contended by the petitioner that the sentence provided for the offence is five years; that the petitioner is in custody for one year; that in similar cases bail have been granted; that the matter is still at the stage of pre-charge evidence.

Held: Petitioner has created 26 firms to facilitate availment and utilisation of Input Tax Credit to the tune of Rs.108.36 crores - Bench is not inclined to entertain the bail application - Bail application is dismissed: High Court [para 6]

- Application dismissed: RAJASTHAN HIGH COURT

2020-TIOL-2087-HC-ALL-GST

Singh Traders Vs Additional Commissioner

GST - Petitioner seeks quashing the order dated 30.11.2019 passed by the respondent no. 1 in GST appeal filed by the petitioner - Petitioner submits that the respondent no. 2 has passed an order dated 15.03.2018 u/s 129(3) of the Act on the ground that the goods were not accompanied by the requisite E-way bill and proceeded to determine tax and penalty of Rs.3,03,660/- - Petitioner states that they filed an appeal on 12.07.2019 against this order before the respondent no. 1 by obtaining certified copy of the order on 10.07.2019 - This, they say, is because the order dated 15.03.2018 was served on the driver of the truck in question and was never served upon the petitioner, which is against the mandate of s.169 of the Act - Respondent no.1, however, dismissed this appeal on 30.11.2019 on the ground of limitation as prescribed u/s 107(1) and 107(4) of the Act - Therefore, the present petition.

Held: A perusal of the impugned order clearly reveals that service on the driver would not fall within any of the category specified from the Clause (a) to (f) of Section 169 (1) of the Act - Thus, Bench has no hesitation in holding that the order impugned in the present writ petition is wholly arbitrary, illegal and contrary to the mandate of Section 169 of the Act - Accordingly, the order dated 30.11.2019 is set aside - The appellate authority is directed to hear and decide the GST Appeal No. 58 of 2019 A.Y. 2018-2019 in accordance with law without going into the question of limitation on merits - The appellate authority shall decide the appeal as expeditiously as possible - Petition allowed: High Court

- Petition allowed: ALLAHABAD HIGH COURT

2020-TIOL-287-AAR-GST

Vrinda Engineers Pvt Ltd

GST - Applicant is a supplier of building structure, railway bridge equipment, technical structure, blast furnace shell, civil structure -  Applicant also does job work on the materials and design belonging to another registered person - The applicant wants to know the applicable rate of tax in terms of Sl No. 26 of Notification No. 11/2017- Central Tax (Rate); whether as job work @12%.

Held: Contract combines two separate services: (1) the job work of fabrication of steel structures and delivery thereof at the site with incidental supply of paint, and (2) works contract of applying a coat of paint to the steel structures after erection - Although they are supplied in conjunction with each other at a single price, they are not naturally bundled - The job work of fabrication ends with the delivery of the fabricated structures at the site - The works contract of applying paint to the erected structures is a separate supply made in conjunction with the job work and is, therefore, a mixed supply - The taxability of the mixed supply depends on the applicable rate of tax on each of the two supplies - Being supply of the manufacturing service (SAC 9988) to a registered taxable person, the supply of the job work is taxable @ 12% in terms of Sl No. 26 (id) of the Rate Notification 11/2017-CTR - On the other hand, the Principal (M/s S P Singla Construction Pvt. Ltd) is the main contractor engaged by the Public Works (Roads) Department of the State Government for the reconstruction of the Majherhat ROB - The applicant's works contract service, being that of a sub-contractor engaged by the main contractor, therefore, is taxable @ 12% in terms of Sl No. 3(ix) of the Rate Notification - The mixed supply is, therefore, taxable @ 12% in terms of the provisions under section 8(b) of the GST Act: AAR

- Application disposed of: AAR

2020-TIOL-286-AAR-GST

Lokenath Builders

GST - Applicant is stated to be providing conservancy service to the (i) Station Commander, Bagrakot Military Station, (ii) Office of Chief Medical Superintendent N.F. Railway, Alipurduar Junction and (iii) Sukna Military Station - The applicant seeks a ruling on whether the above supply is exempted in terms of Sl No. 3 or 3A of Notification No. 12/2017 - Central Tax (Rate).

Held: Applicant?s eligibility under Sl No. 3 or 3A of the Exemption Notification is required to be examined from three aspects: (1) whether the supply being made is pure service or a composite supply, where the supply of goods does not exceed more than 25% of the value of the supply, (2) whether the recipient is government, local authority, governmental authority or a government entity, and (3) whether the supply is being made in relation to any function entrusted to a panchayat or a municipality under the Constitution - In the work orders of Bagrakote Military Station and Sukna Military Station, it is found that all the agreements were between the Central Government and applicant and the applicant's supply is a function mentioned under Sl No. 6 of the Twelfth Schedule, Article 243W of the Constitution, hence Applicant's supply to Bagrakot and Sukna Military Stations, therefore, is exempt under Sl No. 3 of the Exemption Notification - However, since no agreement is available regarding supplies to the Railways, this authority offers no comment thereon - Application disposed of: AAR

- Application disposed of: AAR

Ashok Leyland Finance Ltd Vs ACCT

Whether it is a fit case for remand where re-assessment orders are passed without considering the assessee's objections thereto - YES: HC

- Writ petitions disposed off: MADRAS HIGH COURT

2020-TIOL-2081-HC-J&K-CX

Lupin Ltd Vs UoI

CX -  Vide impugned order, it was held by the authority concerned that benefit of notification No. 01/2010-CE dated 06.02.2010, shall be available to the petitioner's unit from 01.05.2017 - Petitioner submits that while passing the impugned order, the authority concerned had not afforded opportunity of hearing to the petitioner, otherwise, it would have clarified the issues and the matter could be resolved there only.

Held:  In case, the competent authority was satisfied with the claim made by the petitioner, a notice may not be required to be issued - But if the authority was of the opinion that the claim made by the petitioner may not be tenable, a notice is certainly required to be issued so that the grounds on which the claim of the petitioner was sought to be rejected could be discussed - Undisputedly, the authority concerned in the case in hand had not issued such a notice - Counsel for the respondents has not been able to point out any provision in the Act or the notification, which debarred opportunity of hearing to the petitioner in these proceedings - Present petition is allowed - Impugned order dated 29.05.2018 passed by the respondent No.3, is set aside - The matter is remitted back to the competent authority to be decided afresh after affording due opportunity of hearing to the petitioner: High Court [para 6 to 8]

- Petition allowed : JAMMU AND KASHMIR HIGH COURT

2020-TIOL-1669-CESTAT-KOL

BST Infratech Ltd Vs CCGST & CE

CX - Duty of Rs.15,43,94,279/- & Rs.5,93,18,624/- respectively has been demanded against the appellants on the basis of an audit objection on difference in production arrived by taking input output ratio @ 95% based on SION and that shown in their Form 3CD, ER-5 /ER-4 returns - Equivalent penalties have also been imposed - appeal to CESTAT.

Held: The duty has been demanded on the basis of audit objection without causing any investigation - Bench is of the considered view that the objection of audit cannot be the basis or reason to believe to further investigate the matter and cannot be the sole ground for holding clandestine manufacture and removal, in absence of any corroborative evidence - It is observed from records that neither investigation has been carried out from any buyer of finished goods nor from any transporter nor any flow back of funds was checked and neither any statement brought on record to substantiate clandestine removal without payment of duty - No SION number was given in the show cause notice while the Adjudicating Authority has relied upon SION number C-460 & C-514 and thus he has travelled beyond the Show Cause Notice - Deemed production arrived on presumption for demand of duty is not permissible under Section 3 of Central Excise Act, 1944: CESTAT [para 15, 16]

Limitation - Total demand has been computed by applying extended period of limitation in terms of Section 11A of Central Excise Act, 1944 - First Appellant is duly registered with the department on 12.04.2007 and there is no allegation in the impugned order of non submission of any periodical returns - Audits by department as well as AG, West Bengal have been conducted regularly on the records of the appellant - Similarly, insofar as the second appellant is concerned, appellant took central excise registration in 2006 and audit of department and by AG, West Bengal was regularly being conducted - Therefore, allegation of suppressing the facts from the department does not hold good in the event of periodic audit of both the appellant assessees - There is no other evidence in the impugned order to show that the appellants have wilfully suppressed the facts from the department in order to evade payment of duty - As such extended period of limitation cannot be invoked in the present case - both the impugned orders are set aside and both the appeals are allowed with consequential relief: CESTAT [para 18, 19]

- Appeals allowed: KOLKATA CESTAT

2020-TIOL-1666-CESTAT-KOL

Super Smelters Ltd Vs CC, CE & ST

CX - The officers of DGCEI searched the factory premises of assessee and its registered office - The search of factory premises resulted into the detection of shortage of finished excisable goods - On the basis of recovery of handwritten exercise book, hand written loose sheets, the file and computer printouts recovered from residence of Shri Ravi Bhushan Lal, the department concluded that the assessee has clandestinely removed the goods during period from 2010 to 2011, and thus evaded the Central Excise duty - It is evident from the panchnama that the shortage was detected on the basis of eye estimation and also on average weight without physical weighment - The department failed to gather any of documents from the factory of assessee or elsewhere - Further, the loose documents which were recovered from residence of Shri Ravi Bhushan Lal were not put to test for ascertaining to authorship of these documents - Moreover, these documents could not be proved with corroborative evidences - The investigating authority failed to elucidate the system adopted for preparation of relied upon documents which were allegedly based on these documents - The details contained on loose sheets and third party documents are actually not comprehensible and, therefore, cannot be accepted as admissible piece of evidence - The charges of clandestine removal of goods cannot be upheld merely on assumptions and presumptions, but has to be proved with positive evidence such as purchase of excess raw materials, consumption of excess electricity, employment of extra labour, seizure of cash or transportation of clandestinely removed goods - Onus of proof of bringing clinching evidence is on the Revenue - The clandestine manufacturing and removal of excisable goods is to be proved by tangible, direct affirmative and incontrovertible evidence relating to receipts of raw materials inside the factory premises, and non-accountal thereof in the statutory records, utilization of such raw materials for clandestinely manufacture of finished goods manufactured of finished goods with reference to installed capacity, consumption of electricity, labour employed and payment made to them, amount received by the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal - All these material evidence are missing in the present case and the evidences brought into the record by department are incomplete, inconsistent and not a reliable piece of evidence to prove charges of clandestine removal - The shortage which was detected by the officers is based on average weight method basis and, therefore, mere admission by the directors, who deposited the duty for the shortage, is not enough to prove that the goods were clandestinely cleared from the factory - No material evidence was brought on record to prove the charges to attract penalty against them, except the statements which were relied upon by department without following the mandate of Section 9-D of the Act - Thus, the duties and penalties imposed on assessee and other assessees are set aside: CESTAT

-Appeals allowed :KOLKATA CESTAT

2020-TIOL-1665-CESTAT-MUM

LRN Technology & Content Solutions India Pvt Ltd Vs CCGST & CE

ST - Assessee, a 100% EOU assailed the impugned order rejecting its refund claim on the ground that they failed to establish nexus between exports and input services - In his order, Commissioner (A) had primarily dealt about the nexus between output services and input services and even gone to the extent of analysing as to if in the absence of such input services, the quality and efficiency of provision of service would be adversely impacted or not - This being the facts on record, it can be said that the Commissioner (A) had gone beyond the scope of Circular and Rule 5 of CCR, 2004 as the primary intention of legislature was to allow refund to exporters so was to avoid any cascading effect of taxes on export and to promote exports - The impugned order is modified in allowing refund of Rs.1,75,782/- to the assessee - The department is directed to pay the same alongwith applicable interest, if any, within a period of two months: CESTAT

-Appeals allowed :MUMBAI CESTAT