Subh Interiors Vs UoI

GST - Constitutional validity of sub-section (4) of the Section 16 of the Central Goods and Services Tax Acts, 2017 has been challenged on the ground of being arbitrary, discriminatory and violative of Articles 14, 19 and 300A respectively of the Constitution of India.

Held: Notice shall also be issued to the Attorney General of India - Prima facie, it appears that the impugned recovery order / Notice dated 20.10.2020 is without any show-cause or assessment proceedings - Till the next date of hearing, there shall not be any coercive recovery proceedings towards the dues pursuant to the recovery order dated 20.10.2020 – Matter to be heard along with Special Civil Applications Nos.5268 and 4031 of 2020: High Court [para 3, 4]

- Interim relief granted: GUJARAT HIGH COURT

2020-TIOL-2175-HC-AHM-GST

Vimal Yashwantgiri Goswami Vs State Of Gujarat

GST - Respondent no.2 issued a show-cause notice dated 20th November 2019 in the Form GST REG-17, calling upon the writ-applicant to show-cause as to why the registration under the GST should not be cancelled - The writ-applicant filed his reply to the aforenoted show-cause notice on 27th November 2019 - It appears that upon receipt of the reply, the respondent no.2 drop the proceedings for cancellation of registration vide order dated 30th November 2019 - The respondent no.3 thereafter issued a fresh show-cause notice dated 24th January 2020 in Form GST REG-17 under Rule 22(1) of the Rules once again calling upon the writ-applicant to show-cause why the registration should not be cancelled - The writ-applicant once again filed his reply dated 2nd February 2020 - It appears that the respondent no.3, upon receipt of the reply, drop the proceedings for cancellation of registration vide order dated 4th February 2020 - Surprisingly, on the very same day and date, the respondent no.3 once again issued a show-cause notice under Rule 22(1) of the Rules - As the writ-applicant was not in receipt of any attachment along with the show-cause notice, vide letter dated 5th February 2020, he requested the authority to supply the attachment sheet to the show-cause notice dated 4th February 2020 - It appears that despite the specific request for furnishing the attached sheet, the request was not paid heed to, and ultimately, the writ-applicant had to file his reply dated 13th February 2020 to the show-cause notice dated 4th February 2020 - Consequently, the Commercial Tax Officer GHATAK-7 (Ahmedabad) proceeded to pass an order dated 25th February 2020, cancelling the registration w.e.f 26/06/2018 - Being dissatisfied with the order passed by the Commercial Tax Officer dated 25th February 2020, referred to above, the writ-applicant has come up with the present writ-application.

Held: It would not be out of place at this stage to state that the writ-applicant has one more grievance to redress - It is pointed out that an application was preferred under Section 30 of the GST Act seeking revocation of cancellation of the registration way back in February 2020 - However, till this date, even such application filed under Section 30 of the Act has not been decided - Be that as it may, Bench is inclined to quash the impugned order dated 25th February 2020 passed by the Commercial Tax Officer on the short ground that the same is a non-speaking order passed without any application of mind - It is very sad to note the manner in which the show-cause notices came to be issued - The show-cause notices, referred to above, are absolutely bereft of any material particulars or information, and it is but obvious that in the absence of the same, how does the authority expect the writ-applicant to respond to the same in an effective and meaningful manner - Bench fails to understand that having dropped the proceedings once, what prompted the authority to issue a second show-cause notice and even after discharging the second show-cause notice, what prompted the authority to issue a third show-cause notice and that too on the very same day and date of the discharge of the second show-cause notice - Bench is left with no other option but to quash the impugned order dated 25th February 2020 - In the result, this writ-application succeeds and is hereby allowed: High Court

- Petition allowed: GUJARAT HIGH COURT

2020-TIOL-80-NAA-GST

Director General Of Anti-Profiteering Vs Signature Global India Pvt Ltd

GST - Anti-Profiteering - S.171 of the CGST Act, 2017 - Project ‘The Millennia 37D', Gurugram - Applicant no.1 has alleged that the respondent has not passed on the benefit of ITC to him by way of commensurate reduction in the price of his residential unit and that the GST had been charged on the amounts due to him against payments to be made by him to the respondent - DGAP in its report has stated that in the instant case, all the activities related to the project had been initiated in the period after the introduction of GST i.e. after 01.07.2017 hence the provisions of s.171 of the CGST Act, 2017 do not apply to the instant case; that it is also reported that examination of the issue of passing on the benefit arising out of the reduction in the rate of tax from 12% to 8% vide notification 01/2018-CTR was undertaken and it was observed from the Ledger Account pertaining to the Applicant no.1 that the respondent had correctly charged GST @12% for the period before 24.01.2018 and the reduced rate of 8% w.e.f 25.01.2018 from applicant no.1 which evidenced that the respondent had appropriately passed on the benefit of reduction in the rate of tax in line with the provisions of s.171 of the CGST Act - DGAP has, therefore, concluded that the allegation of profiteering made by the respondent does not hold ground - Authority had vide its order dt. 09.10.2020 directed the DGAP to clarify the reasons for having treated the subject project as one that had commenced in the post-GST period (i.e. after 01.07.2017) although the licence for construction of the project had been issued on 02.02.2017 and the RERA registration certificate had been issued on 20.06.2017 - DGAP vide his report dated 15.11.2020 referred to the definition of “ongoing project” as per notification 03/2019-CTR and justified the reason for concluding that the provisions of s.171 do not apply inasmuch as date of start of construction was 25.09.2017 - Authority observes that since the above project was not under execution in the pre-GST period i.e. before 01.07.2017, therefore, no comparison could be made between the ITC which was unavailable to the respondent before 01.07.2017 and after 01.07.2017 to determine whether the respondent had benefited from additional availability of ITC or not - Since from the facts it is established that there had been no additional benefit of ITC to the respondent, hence he was not required to pass on its benefit to the above applicant no. 1 by reducing the price of the flat - Applicant no.1 could have availed the above benefit only if the above project was under execution before coming into force of the GST as the respondent would have been eligible to avail ITC on the purchase of goods and services after 01.07.2017 on which he was not entitled to do so before the above date - Since there is no basis for comparison of ITC available before and after 01.07.2017 the respondent was not required to recalibrate the price of the flat due to additional benefit of ITC - Allegations made by applicant no. 1 are incorrect and, therefore, cannot be accepted - Since there had been no reduction in the rate of tax or benefit of additional ITC to the respondent, the provisions of section 171 of the CGST Act, 2017 are not attracted in the present case and the allegation of profiteering are not established against the respondent - No merit in the application filed by Applicant no. 1, hence same is dismissed: NAA

- Application dismissed: NAA

Falcon Fighter Force Services Pvt Ltd Vs UoI

ST - SVLDRS, 2019 - Writ applicant was expected to make the payment electronically in terms of Rule 7 of the Rules, 2019 within 30 days from the date of issue of the SVLDRS statement - However, it is submitted that due to unavoidable circumstances, writ applicant was not able to make the payment within the due date i.e. 05.03.2020 - The writ applicant requested the SVLDRS Committee to grant him extension of time for making the payment vide letter dated 04.03.2020 - It appears that, thereafter, in view of the COVID-19 pandemic, the due dates under Rule 7 of the Rules, 2019 came to be extended by the Government till 30.06.2020 by way of the Notification No.1 of 2020 (Central Excise) dated 14.05.2020; that although writ applicant was able to generate the challan for the payment having CIN No.2006259744, yet the portal reflected an error on the ICEGATE and, therefore, the writ applicant was unable to make the payment and the fact is that, the amount as on date remains unpaid - Writ applicant thereafter addressed a detailed letter dated 13.07.2020 to the Superintendent, SVLDRS Committee, Ahmedabad in this regard, but there is no response till this date.

Held: Notice be issued to the respondents, returnable on 18.12.2020: High Court [para 5]

- Notice issued: GUJARAT HIGH COURT

2020-TIOL-2174-HC-MEGHALAYA-CUS

Rajesh Lapang Vs CC

Cus - Seized goods (betel nuts) were confiscated by the Commissioner of Customs (Preventive), Shillong, and sold in public auction - Petitioner has approached this Court by filing the instant application under Article 226 of the Constitution of India seeking a mandatory direction upon the concerned Customs authorities to release the auction sale proceeds of Rs.66,51,140/- of the seized goods based on his refund application dated 22nd December, 2017.

Held: It is palpably evident that the writ petitioner has failed to establish his ownership with regard to the seized goods (betel nuts) - Merely because no one else came forward to claim ownership of the seized betel nuts does not ipso facto establish the writ petitioner's ownership or his right, title and interest over the betel nuts - Court, under Article 226 of the Constitution of India, cannot go into the factual question of deciding ownership or whether the writ petitioner had absolute right, title and interest over the betel nuts - At every stage of the proceedings before the adjudicating authority as well as before the Tribunal, the writ petitioner could not establish his claim of ownership over the seized goods (betel nuts) with irrefutable evidence - Rather, it is evident from the order dated 29th May, 2020, rendered by the Commissioner of Customs (Preventive), North Eastern Region, Shillong, that the writ petitioner attempted to produce a certificate dated 10th December, 2015, issued by the Superintendent of Taxes of Meghalaya, Ri Bhoi district, in order to claim his rightful ownership of the betel nuts under question - This claim of the writ petitioner was clearly negated by the Commissioner of Customs (Preventive), North Eastern Region, Shillong, with the observation that such certificate/document only establishes that M/s Lapang Eco Products was engaged in supari/betel nuts business and this was not a conclusive proof of rightful ownership of the betel nuts under question - Bench is unable to grant such relief to the writ petitioner as prayed for - However, the writ petitioner is always at liberty to approach a competent civil forum in order to establish his claim of rightful ownership in respect of the seized betel nuts, which were later publicly auctioned - In the event, the writ petitioner is able to obtain a decree from a competent Civil Court, it will be open to the writ petitioner to approach the Customs authorities seeking release of the sale proceeds of the seized betel nuts in terms of his refund application dated 22nd December, 2017, in accordance with law - Petition disposed of: High Court [para 7, 8]

- Petition disposed of: MEGHALAYA HIGH COURT

2020-TIOL-1696-CESTAT-CHD

Convergys India Services Pvt Ltd Vs CCE & ST

ST - Assessee is in appeal against impugned order wherein the refund claim filed by them for the quarter January 2017 to March 2017 under Rule 5 of CCR, 2004 has been rejected - It is a fact on record that at the time of claiming cenvat credit, it was not objected at any moment of time with regard to admissibility of cenvat credit - Same is a legal issue and can be raised at any moment of time - Moreover, in the impugned order also, the Commissioner (A) has discussed the issue and it can be contested at any stage of time as admissibility of cenvat credit has not been agitated at the time of availment of cenvat credit, therefore, the same cannot be disputed at the time of filing refund claim as held by Tribunal in case of M/s Verisign Services India Pvt. Ltd. 2018-TIOL-1473-CESTAT-BANG - In case of M/s Technip India Pvt. Ltd. 2017-TIOL-3708-CESTAT-MUM , this Tribunal has taken the same view - No merit found in the impugned order, same is set-aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT