2021-TIOL-890-HC-MAD-GST

Dy Beathel Enterprises Vs STO

GST - Petitioners had purchased goods from one Charles and his wife Shanthi - Specific case of the petitioners is that a substantial portion of the sale consideration was paid only through banking channels; that the payments made included the tax component also and that they had availed ITC of the tax so paid - Later, during inspection by the respondent herein, it came to light that Charles and his wife, did not pay any tax to the Government and that necessitated initiation of the impugned proceedings - Petitioners submitted their replies specifically taking the stand that all the amounts payable by them had been paid to the said Charles and his wife Shanthi and that, therefore, those two sellers will have to be necessarily confronted during enquiry - Without involving the said Charles and his wife Shanthi, the impugned orders came to be passed levying the entire liability on the petitioners herein - The said orders are under challenge in these writ petitions.

Held: If the tax had not reached the kitty of the Government, then the liability may have to be eventually borne by one party, either the seller or the buyer - In the case on hand, the respondent does not appear to have taken any recovery action against the seller / Charles and his wife Shanthi, on the present transactions - When it has come out that the seller has collected tax from the purchasing dealers, the omission on the part of the seller to remit the tax in question must have been viewed very seriously and strict action ought to have been initiated against him - That apart, in the enquiry in question, the Charles and his Wife ought to have been examined - They should have been confronted - This is all the more necessary, because the respondent has taken a stand that the petitioners have not even received the goods and had availed input tax credits on the strength of generated invoices - Since according to the respondent, there was no movement of the goods, hence, examination of Charles and his wife has become all the more necessary and imperative - When the petitioners have insisted on this, Bench does not understand as to why the respondent did not ensure the presence of Charles and his wife Shanthi, in the enquiry - Thus, the impugned orders suffers from certain fundamental flaws - Impugned orders are quashed and the matters are remitted back to the file of the respondent - The stage up to the reception of reply from the petitioners herein will hold good - Enquiry alone will have to be held afresh - In the said enquiry, Charles and his wife Shanthi will have to be examined as witnesses - Parallelly, the respondent will also initiate recovery action against Charles and his wife Shanthi - Petitions allowed: High Court [para 12, 13, 14, 15, 16]

- Petitions allowed: MADRAS HIGH COURT

2021-TIOL-894-HC-MAD-CT

State Of Tamil Nadu Vs Takraf India Pvt Ltd

Whether collection made by the dealer from his customers, can only be considered as valuable consideration for the goods sold - YES: HC

- Revenue's appeal dismissed : MADRAS HIGH COURT

2021-TIOL-885-HC-KAR-VAT

Deccan Alloys Pvt Ltd Vs Addl.CCT

Whether penalty is to be levied only upon there being an attempt to evade tax payable under the Karnataka VAT Act & not merely because the documents accompanying the goods are not in the prescribed format - YES: HC

- Assessee's writ petition allowed: KARNATAKA HIGH COURT

2021-TIOL-884-HC-MAD-VAT

Maruthi Poly Bags Pvt Ltd Vs Assistant Commissioner (CT)(FAC)

Whether revisionary order passed under the TNVAT Act is sustainable, where based entirely on proceedings commenced against the assessee by the Central Excise Department - NO: HC

- Writ petition allowed: MADRAS HIGH COURT

2021-TIOL-170-SC-NDPS

Abdinasir Ugas Ali Vs ACC

NDPS - Petition has been filed to quash the proceeding initiated for the offences under Section 8(C) r/w Sections 22, 23, 28 of Narcotic Drugs and Psychotropic Substances Act, 1985 r/w Sections 135 and 135(1)(a) of the Customs Act, 1962, against the petitioner - Petitioner submitted that the Khat Leaves were neither a narcotic drug nor psychotropic substance under the NDPS Act and it came to be included in the list of psychotropic substances under the NDPS Act, by virtue of a notification No.S.O.821(E) dated 27.02.2018 - According to the complainant, the package was booked prior to 27.02.2018 i.e., on 24.02.2018 and hence no offence can be tried, since as on date of the booking of the package, the substance was not banned - Later, the High Court held that in the case on hand, the package reached the shores of Mumbai on 03.03.2018 and thereafter it reached the Foreign Post Office, Meenambakkam, Chennai on 05.03.2018 - Thereafter, on 12.03.2018, the parcel was examined and referred to Postal Appraisal Department - Thereafter only on 27.04.2018, in the presence of two independent witnesses, the officer in-charge has taken the parcel for examination and found two pink polythene bags containing khat leaves weighing 7.9 kg, addressed to the petitioner herein - Therefore, the commission of the offence had taken place on 27.04.2018 as such, on the date of commission of offence, the contraband called khat leaves were included as psychotropic substances and the same was notified by the Government of India, Ministry of Finance vide notification No.S.O.821(E), dated 27.02.2018 - Therefore, the judgement [Chirag Hasmukhrai Bhojani anr Vs. State of Gujarat, dated 09.05.2018 ] is not applicable to the case on hand and on the date of commission of offence the contraband called khat leaves were very much included in the list of psychotropic substances under the NDPS Act, 1985 - Petition is, therefore, devoid of merits and liable to be dismissed - Hence the Criminal Original Petition was dismissed.

Held - One weeks' time given to file counter affidavit by the Respondent-Union - List for hearing on 28.04.2021: SC

- Case deferred :SUPREME COURT OF INDIA

2021-TIOL-892-HC-MAD-CUS

Adani Enterprises Ltd Vs Asstt. CC

Cus - Drawback - Writ petition has been dismissed on the ground that there is absolutely no trigger for the writ petitioner to approach this Court and there is no cause of action for filing the writ petition - Writ appeal has been filed challenging this order.

Held: Respondent had issued a show cause notice dated 10.08.2010 - Reply along with enclosures, said to have been given, have been received in the office of the respondent on 23.08.2010 - The appellant did nothing thereafter and in the year 2020, filed the writ petition - Writ Court was fully satisfied in one way or the other that there was no cause of action to file a Writ of Certiorari to quash the show cause notice especially when the appellant submitted to jurisdiction of the respondent and said to have fulfilled what was called for from them in the show cause notice - Since the matter is now pending before the respondent, Bench does not propose to make any observation or render any finding with regard to the compliance said to have been done by the appellant as it is for the respondent to proceed in accordance with law - Counsel appearing for the respondent submitted that the proceedings would be finalized by the respondent within two weeks and the appellant should cooperate with the proceedings - While confirming the finding rendered by the Single Bench, the writ appeal stands disposed of with a direction to the respondent to pass orders on merits and in accordance with law, taking note of the reply submitted by the appellant dated 23.08.2010, within a period of three weeks: High Court [para 7, 9, 11]

- Writ appeal disposed of: MADRAS HIGH COURT

2021-TIOL-889-HC-MAD-CUS

Sri Balaganesan Spinners Vs Joint CC

Cus - EPCG Scheme - Import of capital goods - Rejecting the stand taken by the petitioner, the first respondent passed final orders imposing the differential duty as well as penalty vide order dated 01.12.2020 - Challenging the same, these writ petitions have been filed - Petitioners submit that they had made a request for cross examination of those witnesses whose statements were relied on by the adjudicating authority, however, the request for cross-examination was rejected and thus, there has been violation of principles of natural justice.

Held: Supreme Court in a recent decision I.C.D.S. Ltd. vs. Commissioner of Income Tax held that if the department wants to rely on the evidence of certain witnesses, it may be necessary to provide opportunity of cross examination of these witnesses to the noticee - This is a self-evident proposition for which no authority is needed - Since this basic right of the petitioners has been denied, the order impugned in these writ petitions will have to be necessarily set aside - It is accordingly set aside - The writ petitions are allowed and the matter is remitted to the file of the first respondent for affording an opportunity to the petitioners to cross- examine the witnesses whose statements are relied on by the authority: High Court [para 5, 6, 7]

- Petitions allowed: MADRAS HIGH COURT

2021-TIOL-888-HC-MAD-ST

Manonmaniam Sundaranar University Vs Joint Director of GST Intellicence

ST - Petitioner is a University established by the Manonmaniam Sundaranar University Act, 1990 - The second respondent issued notice dated 23.10.2018 calling upon the petitioner University to show cause as to why certain sums of money should not be paid by them towards service tax - demand confirmed along with penalty etc. hence the present writ petition.

Held: [para 8, 10]

++ There can be no doubt that a college as per the UGC regulations will have to be affiliated to some University. Therefore, the affiliation fees as well as the inspection commission collected by the University are in the nature of statutory levies. By performing those activities, the petitioner is only discharging a statutory function and the fees collected by the petitioner cannot be amenable to levy of Service Tax.

++ Insofar as demand of service tax under the category of Renting of Immovable property, it is true that authorisation is given to the University to maintain the property. But then, there is clear commercial element in these transactions. The University is renting the property to other institutions and collecting rent from them. Therefore, the second respondent was justified in raising demand for the said service.

++ However, there is no justification in levying penalty. The assessee is not a private entity. The respondents do not allege forgery or misrepresentation.

++ Impugned order is sustained insofar as the demand for payment of Service Tax on renting of immovable property is concerned. In all other respects, it is quashed.

++ The writ petition is partly allowed.

- Petition partly allowed: MADRAS HIGH COURT

2021-TIOL-887-HC-MAD-ST

Jai Guru Cables Vs Pr.Chief CGST & CE

ST - Petitioner had submitted an application under the SVLDRS, 2019 scheme - Thereupon, Form SVLDRS-4 was generated and the estimated amount payable by the petitioner was fixed at Rs. 1,51,797.20 - The petitioner ought to have remitted the said amount within a period of 30 days thereafter as per mandate contained in Section 127(5) of the Finance Act, 2019 - However, the petitioner did not pay the said amount within the aforesaid period and he made an attempt to electronically make the said payment on 30.06.2020 - Though the said amount was debited from the petitioner's account, it was subsequently re-credited inasmuch as the payment process was not successful - Petitioner kept quiet thereafter and vide communication dated 15.01.2021, the fourth respondent called upon the petitioner to clear the original liability and this is when the petitioner woke up and filed the present writ petition.

Held: Bench notes that after making the attempt on 30.06.2020, the petitioner appears to have gone into slumber and not even a representation is enclosed in the typed set of papers - Therefore, Bench is not in a position to grant any relief as sought for in the writ petition but can only permit the petitioner to once again move the jurisdictional designated committee and who can take a call in the matter - The writ petition is disposed of accordingly: High Court [para 5, 6]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-886-HC-MAD-CUS

Green Port Shipping Agencies Vs CC

Cus - Petitioner, a steamer agent, was served with show cause notice dated 16.01.2013 alleging violation of intellectual property rights of certain third parties and of having indulged in undervaluation - The petitioner has given his explanation denying the allegations - The petitioner has now been served with intimation to attend a personal hearing - At this stage, this writ petition has been filed on the ground that some of the documents that find place in the show cause have not been served on the writ petitioner.

Held: Counsel for Revenue categorically stated that the adjudicating authority proposes rely upon only those documents as set out in annexure A of the show cause notice and not on any other document - There is a well-known distinction between the documents that are 'referred to' and the documents that are 'relied on' - In the show cause notice, the authority, for the purpose of covering the trajectory of events or for the purpose of narration may refer to certain documents but it is not incumbent on the authority to make available every document, which is referred to in the show cause notice - Only those documents on which reliance will be made in the adjudication will have to be supplied to the noticee - Petitioner, in the view of the Bench, has come to the Court prematurely - As of now, Bench finds no violation of principles of natural justice - The petitioner is bound to appear for the personal hearing and advance all his contentions - All the contentions of the petitioner are left open - The writ petition stands dismissed: High Court [para 5, 6, 8]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-214-CESTAT-CHD

CC Vs Manavi Exim Pvt Ltd

Cus - The Revenue is in appeal against impugned order wherein the Commissioner (Appeals) has allowed the refund claim to the respondent holding that bar of unjust enrichment has been passed by the respondent on the ground that the respondent has not filed balance-sheet for the period 2017-2018, 2018-2019 and 2019-2020 - The Commissioner (Appeals) held that the respondent has filed copy of balance-sheet for the period ending March, 2019 and a certificate issued by the chartered accountant dated 25.06.2019 and the Commissioner (Appeals) has passed the order on 11.05.2020 after examining all the records showing that amount receivable from the Government, these facts have not been controverted by the Revenue with tangible evidence - As the record relevant for sanctioning the refund claim has been examined by Commissioner (Appeals) in detail in impugned order, hence, no infirmity found in the impugned order, same is upheld: CESTAT

- Appeal dismissed: CHENNAI CESTAT

2021-TIOL-213-CESTAT-BANG

Shree Halasidhanath Sahakari Sakhare Karkhana Ltd Vs CCT

CX - The appellant is a Co-operative Sugar Factory and is engaged in manufacture of sugar and molasses and are availing the cenvat credit in respect of duty paid on capital goods, input and input services in terms of CCR, 2004 - Appellant undertook renovation project of their sugar unit and for that work they have engaged M/s. Manana Construction and M/s. ISGEC Heavy Engineering Ltd. - During audit, it was observed by Department that the appellant has wrongly availed cenvat credit of service tax and Swach Bharat cess - As per the submission of appellant, they had entered into three different contracts with Manana Construction viz. supply of material for civil construction, supply of labour for civil construction and supply of labour for installation of plant and machinery and he is liable to pay service tax only on supply of labour for civil construction and supply of labour for installation of plant and machinery and is not liable to pay service tax on supply of material for civil construction and further he has already reversed Rs. 8,40,768/- on proportionate basis, the service tax pertaining to supply of labour for civil construction and the remaining amount is entitled to avail as cenvat credit of the same and similarly for ISGEC Heavy Engineering the appellant submitted that they have entered into two different contracts but all the contracts entered into between the appellant and two different parties viz. Manana Construction and M/s. ISGEC Heavy Engineering Ltd. have not been produced before the original authority to verify the claim of the appellant - Case needs to be remanded back to the original authority to examine all the documents afresh and then decide the claim of the appellant and determine the demand, if any - The appellant is directed to produce all the relevant agreements, work contracts and invoices before the original authority which after giving an opportunity of hearing to the appellants will pass a fresh order in accordance with law: CESTAT

- Matter remanded: BANGALORE CESTAT