2020-TIOL-179-SC-GST-LB

UoI Vs Bharti Airtel Ltd

GST - Petitioner had alleged that there has been excess payment of taxes, by way of cash, to the tune of approximately Rs.923 crores; that this was occasioned to a great degree due to non-operationalization of Forms GSTR-2A,  GSTR-2  and  GSTR-3  and the system related checks which could have forewarned the petitioner about the mistake; that since there were no checks on the Form  GSTR-3B  which was manually filled up by the Petitioner, the excess payment of tax went unnoticed; that, therefore, the Petitioner desired to correct its returns, but is being prevented from doing so as there is no enabling statutory procedure implemented by the Government - High Court while allowing the petition [ 2020-TIOL-901-HC-DEL-GST ] had held that since the respondents could not operationalise the statutory forms envisaged under the Act resulting in depriving the petitioner to accurately reconcile its input tax credit, the respondent cannot today deprive the petitioner of the benefits that would have accrued in favour of the petitioner if, such forms would have been enforced; that the Petitioners cannot be denied the benefit due to the fault of the respondents; that the Respondents have also not been able to expressly indicate the rationale for not allowing the rectification in the same month to which the form GSTR-3B relates; that respondents have admitted that the facility of form GSTR-2A was not available prior to 2018 and, as such, for the months July 2017 to September 2017 the scheme was envisaged under the Act was not implemented; that the only remedy that can enable the petitioner to enjoy the benefit of seamless utilisation of the input tax credit is by way of rectification of its return GSTR-3B; that the correction mechanism is critical to sustaining successful implementation of GST; that the Petitioner is permitted to rectify form GSTR-3B for the period to which the error relates i.e. the relevant period from July 2017 to September 2017 - Against this order, Revenue has filed a Special Leave Appeal before the Supreme Court.

Held: Operation of the impugned judgment shall remain stayed - Matter is to be listed in the first week of March, 2021 for final disposal: Supreme Court Larger Bench

- Order stayed : SUPREME COURT OF INDIA

2020-TIOL-2172-HC-MAD-GST

World Home Textiles Inc Vs Additional Commissioner

GST - Referring to the impugned order dated 27.03.2019 passed by the second respondent, the petitioner points out that, without affording sufficient opportunity of hearing to the petitioner, the said order has been passed rejecting the petitioner's application for refund - Petitioner draws the attention of this Court to the impugned order dated 20.08.2020 passed by the first respondent in the appeal and would point out that even though the Appellate Authority has confirmed that no hearing was granted to the petitioner by the second respondent, he has failed to remand the matter back to the second respondent for fresh consideration.

Held: Admittedly, no hearing was afforded to the petitioner by the second respondent before passing of the impugned order dated 27.03.2019 rejecting the petitioner's application for refund - It is clear from a reading of Rule 92(3) of the Rules, 2017 that any application for refund can be rejected only after affording sufficient opportunity of hearing to the party, who seeks for refund - The first respondent in the impugned order dated 20.08.2020 has also confirmed that no hearing was afforded to the petitioner by the second respondent and despite the same, has dismissed the appeal erroneously - When Rule 92(3) of the CGST Rules, 2017 , makes it clear that hearing is mandatory before rejecting any application for refund, the second respondent as well as the first respondent in their respective impugned orders have arbitrarily and by total non-application of mind to the said Rule has rejected the petitioner's application for refund - Impugned order dated 27.03.2019 passed by the second respondent as well as the impugned order dated 20.08.2020 passed by the first respondent are hereby quashed and the matters are remanded back to the second respondent for fresh consideration and the second respondent shall pass final orders on the refund application dated 27.03.2019 - personal hearing within a period of twelve weeks - Writ Petition stands disposed of: High Court [para 6 to 9]

- Petition disposed of: MADRAS HIGH COURT

Jan Kalyan Parisad Vs UoI

ST - A SCN dated 23.10.2015 was issued to the petitioner demanding service tax of Rs.44,39,787/- with respect to financial years 2010-2011 to 2013-2014 - Order was passed ex parte on 28.03.2017 and the appeal before the Commissioner (Appeals) was dismissed on 13.02.2018 on the grounds of being barred by limitation - According to the petitioner, they had deposited a sum of Rs.17,72,021/- under different challans - The petitioner represented before the designated authority in the matter of amount determined under the SVLDR Scheme and the designated authority has communicated to the petitioner vide letter dated 08.09.2020 that the request for adjustment of Rs.15,69,098/- in SVLDR Scheme was not considered since this amount was not entered in ST-3 Returns; that apart, the last date of payment under SVLDR Scheme was 30.06.2020 which has expired - Writ petition has been filed asking for a writ of mandamus to the respondents to adjust the amount of Rs.17,72,021/- deposited by the petitioner, as against the determined amount of Rs.17,75,915/- by the designated authority under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019.

Held: The letter/order dated 08.09.2020 has not even been challenged by the petitioner in the present writ petition - That apart, adjustment of the amount deposited prior to the issuance of the demand-cum-show cause notice may be adjustable against the demand confirmed by the order in original but it cannot be adjusted for the purposes of determination of amount under the SVLDR Scheme - Writ petition is dismissed making open to the petitioner to approach the authority concerned for adjustment of the alleged deposited amount, if any, towards the demand confirmed by the order in original dated 28.03.2017 and if the petitioner so approaches, the authority concerned shall examine the matter and take appropriate action in accordance with law: High Court [para 6, 7]

- Petition dismissed: ALLAHABAD HIGH COURT

2020-TIOL-1695-CESTAT-MUM

ST - Officers of Department visited the factory premises of the appellant on 31.10.2012 and during the course of verification of records, they found that the plant, machinery and other properties available therein were actually leased out to the appellant by M/s Maharashtra State Co-operative Bank Limited on rental basis under Lease Deed dated 08.10.2007; that the premises including the plant and machinery originally belonged to one M/s Tasgaon Palus Taluka Sehakari Sakhar Karkhana Ltd. (TTSSK); that the same were mortgaged to the bank against certain loan and credit facilities; that they were subsequently taken over by the bank under the provisions of SARFAESI Act, 2002 and leased out to the appellant for a period of five years for the purpose of running the sugar mill; that the agreed amount of the lease rent was being paid by the appellant and that the appellant had availed Cenvat credit of Service Tax in the capacity of recipient of "Renting of Immovable Property Services" in respect of the rent amount paid by it to the bank - Department observed that the appellant was not entitled for availment of credit on the ground that payment of service tax had been made in the name of M/s TTSSK, who was not the service provider; that the documents on the strength of which the credit had been availed were not in the form of invoice, bill or challan issued by the service provider, as required under Rule 9(1)(f) of the CCR, 2004 - In adjudication, Cenvat credit amounting to Rs.67,55,017/- availed by the appellant was disallowed and penalty and interest was imposed - appeal to CESTAT.

Held: It is not the case of Revenue that service tax liability in respect of the taxable service viz. Renting of Immovable Property has not been discharged in the present case - The service tax amount in question was actually paid by the appellant and the same was deposited into the Central Government account in the name of the original owner M/s TTSSK - The department in this case, has not disputed the fact that other than the appellant, anybody else has availed the Cenvat credit of service tax paid on the taxable service - Bench finds from paragraph 13 of the impugned order that the Adjudicating Authority has acknowledged the fact regarding deduction of the service tax amount from the lease rent paid to the bank and deposit of the same in the Government exchequer by the appellant - Further, the challan evidencing payment of service tax has also been recognized in the Cenvat statute as the proper and valid document - Even if the service tax paid document does not contain the requisite particulars, the competent authority under the statute was empowered to condone such discrepancy and allow the Cenvat credit to the assessee - But such discretion vested in the Cenvat statute has not been exercised by the jurisdictional service tax authorities - Perusal of the case records reveals that in this case, the appellant had deposited the service tax on the taxable service and also accounted for the same in its books of accounts - Thus, under such circumstances, denial of Cenvat benefit to the appellant cannot be considered as legal and proper - No merit in the impugned order passed by the adjudicating authority - same is set aside and appeal is allowed: CESTAT [para 5, 6]

- Appeal allowed: MUMBAI CESTAT

2020-TIOL-1693-CESTAT-CHD

Great India Steel Fabricators Vs CCE & ST

CX - The assessee is in appeal against impugned order wherein their refund claim has been rejected in terms of provisions effective from 01.03.2015 in case of deemed export - It is a fact on record that when assessee filed the refund claim of cenvat credit reversed by them, it was not the issue but with the introduction of CGST Act 2017, the issue of re-credit was arise in terms of Section 142 (3) of CGST Act, 2017 and the assessee was having no occasion to raise the issue of re-credit before adjudicating authority as the adjudicating authority itself has passed the impugned order after introduction of CGST Act, 2017 - Moreover, the issue of entitlement of re-credit is a legal issue and the same may be raised in case proceedings - The issue has already been decided by Tribunal in case of Rawalwasia Ispat Udyog Pvt Ltd - In view of the same, assessee is entitled to recredit of the amount already reversed before introduction of CGST Act, 2017: CESTAT

- Appeals disposed of: CHANDIGARH CESTAT

2020-TIOL-1690-CESTAT-CHD

ST - The assessee is in appeal against impugned order wherein the refund claim has been rejected - In the earlier round of litigation, Tribunal has held that the refund claim is not barred by limitation and the order of Commissioner (A) passed in earlier round of litigation was upheld by dismissing the appeal filed by Revenue under the litigation policy - The Revenue came with an application for rectification of mistake on the ground that the appeal cannot be dismissed under litigation policy as it involves a substantial question of law - The said application has been dismissed - Admittedly, the issue involved in the matter has been dealt by Tribunal in the case of M/s A.P. Enterprises - As the issue has been settled that in such a cases, the refund claim is to be given directly to the service recipient, therefore, the refund claim is allowed along with interest after three months from the date of filing the refund claim till its realization as held by the Apex Court in the case of Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX: CESTAT

- Appeal allowed: CHANDIGARH CESTAT