2020-TIOL-2103-HC-AP-GST

Nakshatra House Keeping Services Vs Assistant Commissioner (ST)

GST - Petitioner submits that the Final-cum-Hearing Notice, dated 06.11.2019, wherein the petitioner was directed to appear before the Assistant Commissioner (State Tax), Proddatur -I Circle on 13.11.2019, was served on 12.11.2019 and the order came to be passed even before the closing hours of 13.11.2019; that on receipt of notice on 12.11.2020, petitioner immediately went to the office by 4:30 P.M. on 13.11.2020 but by then, the impugned order was passed - In the Writ petition, petitioner seeks quashing of the order since passed by violating principles of natural justice.

Held: Petitioner's argument that deciding the matter without hearing the petitioner amounts to violation of principles of natural justice, cannot be brushed aside - Even assuming that the notice was sent by e-mail, Bench feels that the petitioner should have been given some more time so as to enable him to engage a counsel, who can present his case well before the authority concerned, more so, having regard to the background in which he is placed - Hence, the order under challenge is set aside and the matter is remanded back to the authority with a direction that the same shall be decided on or before 15.12.2020 after hearing the petitioner - Petition is allowed by way of remand: High Court [para 5, 6]

- Matter remanded : ANDHRA PRADESH HIGH COURT

2020-TIOL-2102-HC-KAR-GST

ABB Global Industries and Services Pvt Ltd Vs UoI

GST - Petitioner was served with the SCN dated 2.3.2020 for personal hearing scheduled on 17.03.2020 - The petitioner responded to such notice on 16.03.2020 requesting for additional fifteen day's time to file a detailed reply and also for personal hearing stating that the petitioner had handed over all the papers to its legal consultants and they were in the process of drafting a suitable reply by detailing all the relevant facts - However, no decision was taken on this request but the impugned order is made - SCN is issued on the ground that the second refund application cannot be filed in view of the fact that a similar application filed in the month of September 2018 has been sanctioned by order dated 19.08.2019 - Petitioner contends that the law does not prohibit making of a second application and if the rejection is only because the second application cannot be maintained, the authorities should have mentioned the relevant provision; that in the absence of these details, the show cause notice is not complete and does not serve the purpose in law.

Held: For the reasons that the Revenue Counsel is unable to point out prohibition in law against grant of extension of time by the third respondent and to serve the interest of justice, Court is of the considered view that it would be appropriate to set aside the impugned order and restore the proceeding to the third respondent for a considered decision with a reasonable opportunity to the petitioner to file its detailed objections and to avail personal hearing - Writ petition allowed in part: High Court [para 4, 5]

- Petition partly allowed : KARNATAKA HIGH COURT

2020-TIOL-2092-HC-DEL-GST

Bharti Airtel Ltd Vs UoI

GST - The present petition was filed by the petitioner seeking amendment in writ petition for incorporating a prayer, challenging the proviso to Section 16(4) of the CGST Act as well as the Delhi GST Act 2017 - Such prayer was inadvertently omitted from inclusion in the petition.

Held - Notice be issued to the parties - Since the amendment is formal in nature, the same is allowed and the amended writ petition is taken on record: HC

-Writ petition disposed of : DELHI HIGH COURT

2020-TIOL-2091-HC-DEL-GST

Vinesh Jain Vs Govt of NCT of Delhi

GST - The present petition was filed seeking that directions be issued to the Revenue to make inventory of goods seized from the petitioner & that a copy of GST MOV 04 be issued to the Revenue - The assessee also sought for intimation to it regarding payment of tax or penalty u/s 129 of the CGST Act, in respect of goods not covered by documents as per GST MOV 07 - The petitioner also sought for release of the goods after payment of tax or penalty and for release of the vehicle carrying such goods, by issuing release order in GST MOV 05.

Held - Notice be issued to the parties - The Revenue claimed that the assessment order could not be passed on account of a theft having occurred within 24 hours of the vehicle being seized - Nonetheless, the Revenue undertook to pass order indicating the tax due and penalty, within two weeks' time: HC

-Writ petition disposed of : DELHI HIGH COURT

2020-TIOL-2090-HC-KERALA-GST

Chola Motors Vs Asstt STO

GST - The petitioner approached this court to challenge a detention order and notice, whereupon a vehicle transporting some goods of the petitioner, were both detained and seized by the Revenue - The reason given for their detention was that no valid document was accompanying the goods being ferried.

Held - In such circumstances, the detention cannot be said to be unjustified - Nonetheless, in keepin with the petitioner's request, the petitioner is permitted to clear the vehicle upon furnishing a bank guarantee for the duty demand raised - Upon clearance of the vehicle, the Revenue is directed to pass adjudication order in Form GST MOV 09 after considering the petitioner's contentions in respect of tax and penalty: HC

-Writ petition disposed of : KERALA HIGH COURT

2020-TIOL-2089-HC-KERALA-GST

MM Abdul Hameed & Sons Vs Asstt STO

GST - The petitioner approached this court to contest a detention notice served in connection with the transportation of goods at his instance - Perusal of detention notice in Form GST MOV 07 indicates that the Revenue found that the invoice accompanying the transportation of goods, did not contain any date - Moreover, the date shown in the e-way bill was 25.11.2020 whereas the shipping date was shown as 15.11.2020 - It was also noted that Part B of the e-way bill was not updated with the relevant railway RR number.

Held - Considering the factual matrix, the detention of goods cannot be said to be unjustified - However, the petitioner is permitted to clear the goods and the vehicle on furnishing a bank guarantee for the duty demanded - The Revenue is directed to enable expeditious clearance of the goods and the vehicle and then proceed to pass adjudication order u/s 129(3) of CGST Act: HC

-Writ petition dismissed : KERALA HIGH COURT

2020-TIOL-288-AAR-GST

Shivalika Enterprises

GST - Non-woven Fabric made using PP granules is classifiable under Heading 5603; Products made out of Non-woven fabric like non-woven fabric bag is classifiable under heading 6305; 3-ply mask under heading 6307; Surgical Cap under heading 6505; Surgical gown under heading 6210 and Surgical shoe cover under heading 6307: AAR

- Application disposed of :AUTHORITY FOR ADVANCE RULING

Rasi Agrescots Pvt Ltd Vs Special Commissioner And Commissioner Of Commercial Taxes

In writ, the High Court remands the matter back to the Adjudicating Authority for re-consideration on merits and after giving the assessee an opportunity of personal hearing.

- Case remanded: MADRAS HIGH COURT

2020-TIOL-2083-HC-KAR-VAT

BNA Technology Consulting Pvt Ltd Vs State Of Karnataka

Whether levy of VAT on sale of goods in course of import, is an error apparent on record & the same warrants rectification - YES: HC

Whether as per settled principle of law, the source of power can be traced by the tenor of the authority which passes it - YES: HC

- Revision petition dismissed: KARNATAKA HIGH COURT

2020-TIOL-2104-HC-MUM-NDPS

Hitesh Hemant Malhotra Vs State Of Maharashtra

NDPS - Applicant is seeking bail on the ground that quantity of contraband i.e. LSD and charas allegedly found and recovered from the person of applicant and his house was less than the, commercial 'quantity', and, therefore, rigors of Section 37 of the NDPS Act, are not applicable to the facts of this case - It is contended that, 'net' weight of the drops of LSD solution on the 23 papers, as found was 0.4128 milligram which is less than commercial quantity i.e. 0.1 gm; that, weight of 'LSD drops' and 'charas' (970 gram), allegedly recovered was less than 'commercial quantity' and, therefore, there is no impediment in releasing the applicant on bail, in as much as, rigors of Section 37 are not applicable to the facts of this case - APP has supported the order passed by Sessions Court and also relied on the judgment of the Apex Court in the case of Hira Singh & Anr. = 2020-TIOL-84-SC-NDPS-LB.

Held: It may be stated that the most common form of LSD is drop of LSD solution dried onto piece of paper or gelatine sheet, pieces of blotting papers which releases the drop when swallowed/consumed - In this case, drug was found in the form of drops dried onto 23 pieces of papers - This process of drying LSD solution on a piece of paper, merely facilitates consumption of drug - This process neither changes the substance of the drug or its chemical composition - It is argued by the State that since dried LSD drops of LSD solution cannot be segregated or separated from the papers, it amounts to a 'mixture' and, therefore, the weight of the paper is to be counted with 'LSD dots' for determining the quantity of drug which was more than 0.1 gram – Though, after swallowing piece of paper, which causes release of drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither "preparation", within the meaning of Section 2(xx), nor a "mixture" within the meaning of the NDPS Act - The papers containing dried LSD drops of LSD solution, not being a mixture, and the paper being not a neutral substance, judgment of the Apex Court (supra), has no application to the facts of this case - Thus, in consideration of the facts of the case, the findings of the Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise, is incorrect - In this case, the Chemical Analyser's report, shows quantity of LSD drops solution was 0.4128 milligrams, which was below 0.1 gm of commercial quantity, therefore, rigors of Section 37 of the NDPS Act, are not applicable to the facts of this case – So also, holding quantity of charas recovered from the applicant was commercial 'quantity', is equally incorrect because charas allegedly recovered from the applicant was 970 gms i.e. less than 1 kg - Applicant has no criminal antecedents and is in custody since June, 2019 - Therefore, in the facts of the case, the applicant is admitted to bail on terms and conditions: High Court [para 8 to 11]

- Application allowed: BOMBAY HIGH COURT

2020-TIOL-1668-CESTAT-MUM

SP Associates Vs CC

Cus - The assessee having imported old and used 'digital multifunction devices Canon with standard accessories', is aggrieved by impugned order for having directed the adjudicating authority to decide the matter afresh even while accepting their proposition of incorrectness in imposing re-export of confiscated goods as condition for redemption under section 125 of Customs Act, 1962 - Assessee concedes that there is no cavil with confiscation under section 111(d) of Customs Act, 1962 arising from non-production of 'authorisation' required for effecting imports of 'old and used goods' as prescribed in paragraph no. 2.31 of FTP 2015-20 notified under FTDR Act, 1992 - The order of original authority had restricted the options to that of re-export on redemption or of destruction at the cost of assessee - In determining the fate of cross-appeals filed against that order, the first appellate authority was required to decide the competing claims for permitting clearance for home consumption or absolute confiscation as the exhaustive options available under the law - Neither the reviewing authority nor the importer had favoured re-export - It is, indeed, moot if, in the absence of request from an importer and of authority conferred under Customs Act, 1962 or any other law, the proper officer of customs was empowered to insist on such and in the proceedings leading to this appeal, it is only Customs Act, 1962 that has been invoked - It is also moot if the default alternative of destruction could have been retained by adjudicating authority in proceedings that invoked only section 111 of Customs Act, 1962; the statute does not envisage destruction of goods and an order of destruction by customs authorities may arise only from empowerment under some other law which has not been invoked in the present proceedings - In affording the option to redeem goods, absolute confiscation is consequence of default thereof - From section 125 of Customs Act, 1962, it is seen that confiscated goods vest with the Central Government and, in the absence of authority under law, or by delegation, to destroy, the adjudicating authority is required to protect such goods till appropriate disposition as prescribed by the Central Government - No reason found to disagree with the remand ordered by first appellate authority - Furthermore, with the right to be issued with notice under section 124 of Customs Act, 1962 having been waived, the direction to consider all issues afresh cannot be faulted - De novo proceedings be completed within eight weeks: CESTAT

- Appeals disposed of: MUMBAI CESTAT

2020-TIOL-1667-CESTAT-CHD

Kandhari Beverages Pvt Ltd Vs CCE

ST - The assessee is engaged in manufacture of nonalcoholic beverages and fruit pulp based products like Maaza under the brand name of The Coca-Cola Company (USA) ('CCI') - They entered into 'Bottlers Agreement' with CCI wherein the assessee has been authorised to use trade marks in connection with preparation, packing, distribution and sale of beverages in and throughout a specified territory - Two SCNs were issued to assessee alleging that while marketing beverages, the concentrate owned by CCI was also getting marketed and that promotion of concentrate was inextricably linked to the promotion of brand name - The issue has been dealt by Tribunal in assessee's own case for the earlier period in 2020-TIOL-927-CESTAT-CHD - Considering the same, no demand of service tax is sustainable against assessee, therefore, the impugned order is set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT