2021-TIOL-993-HC-RAJ-GST

Vitta Samanvaya Samiti Vs UoI

GST - Section 44 of the Act r/w s.35(5) of the RGST Act and rule 80 of the CGST Rules, 2017 - Petitioner seeks a direction to the respondents to extend the period of time for submitting of Form GSTR-9 and GSTR-9C for the financial year 2019-20 until 10.09.2021 - Petitioner submits that an assessee had a right to file the forms within nine months from the date of conclusion of the financial year in question; that Form GSTR-9 and GSTR-9C were finally notified on 10.12.2020 & 30.12.2020 respectively and consequently, the period of nine months would start from the date of last publication.

Held: Arguments advanced by the petitioner cannot be accepted since the period for filing of the return is fixed by the Statute and it is the statutory authority alone who has power and authority to extend any period for compliance - Therefore, Bench is not inclined to entertain the instant writ application and leave it to the petitioner, if so advised, to approach the statutory authority to seek further extension - If such a representation is filed, Bench hopes and trusts that the same would be considered and disposed of at an early date - Petition dismissed: High Court [para 5, 6]

2021-TIOL-991-HC-MAD-GST

Raj Exim Vs Asstt. CC

GST - Petition has been filed seeking a direction to the respondent to sanction the refund of IGT paid in respect of exported goods - grievance of the petitioner is that exports were made in September 2017, but till date, IGST is not refunded to the petitioner.

Held: In view of the decision in  M/s.  Precot  Meridian Limited  =  2020-TIOL-29-HC-MAD-GST respondent is directed to sanction the refund of IGST of Rs. 2,35,008/- paid by the petitioner in respect of the goods exported i.e. 'Zero Rated Supplies' made vide shipping bills along with entitled interest @ 9% to the petitioner till the date of actual refund, within a period of six weeks: High Court [para 5]

- Petition allowed: MADRAS HIGH COURT

2021-TIOL-988-HC-KERALA-GST

Abdul Shaji Vs CCT & CE

GST - It is a  settled position that an applicant apprehending arrest need not be made an accused in a crime to seek the relief of anticipatory bail: HC

GST - Applicant apprehends arrest for an offence of alleged non payment of GST to the tune of Rs.17.53 Crores and non-filing of GSTR 3B returns for the period from October onwards - It is contended that the applicant had prepared GST invoices valued at Rs.348.7 crores using the credentials of the  M/s A.R. Agencies, Eyyal Thrissur - Applicant states that he is innocent and has nothing to do with M/s A.R Agencies and does not even know its proprietor Rajoob - Applicant also denies having received the login credentials of A R. Agencies or filing the GST returns for the proprietorship - Applicant is willing to cooperate with the investigation but apprehends that he may be incarcerated and subjected to torture to extract incriminating evidence - And hence, he seeks anticipatory bail.

Held: Applicant has not yet been made an accused - On the basis of the alleged statement given by Abdul Saleem, the applicant has allegedly dealt with the filing of returns of the Agency - He had allegedly made false invoices - But as of now, no concrete evidence sufficient either to implicate him as an accused or to proceed against him has been collected - Admittedly, A.R Agencies is a proprietorship belonging to Rajoob - He alone is to answer for anything done by the agency - Applicant has nothing to do with the Agency and has not gained any income from that business - His Bank accounts are available for scrutiny, and the applicant is willing to cooperate by producing those documents - His custodial interrogation may not be necessary under the circumstances - The CGST officials had sufficient power to implicate the applicant in case they had the required materials with them - The fact that they have not arraigned him as an accused indicates lack of material - The applicant's apprehension of arrest is reasonable, because Abdul Saleem, who is also not a proprietor, has been arrested - Objections filed by the respondents also does not disclose any incriminating material against the applicant - Merely by stating that they recovered incriminating materials may not suffice - It is settled position that the applicant apprehending arrest need not be made an accused in a crime to seek the relief of anticipatory bail - It is sufficient in case he succeeds in establishing that his apprehension of arrest is reasonable -  Applicant is entitled to the relief of anticipatory bail - Bail application is allowed and the applicant is directed to appear before the investigating officer - He is directed to cooperate with the investigation and produce all documents called for - After interrogation, in the event of his arrest, he shall be released on bail on execution of a bond for Rs.5,00,000/-  with two solvent sureties each for like sum: High Court [para 8, 9]

- Application allowed: KERALA HIGH COURT

2021-TIOL-987-HC-MAD-GST

Modern India Products Vs ACC

GST - Petition has been filed seeking a direction to the respondent to sanction the refund of IGT paid in respect of exported goods - grievance of the petitioner is that exports were made in September 2017, but till date, IGST is not refunded to the petitioner.

Held: In view of the decision in M/s. Precot Meridian Limited = 2020-TIOL-29-HC-MAD-GST respondent is directed to sanction the refund of IGST of Rs.2,54,449/- paid by the petitioner in respect of the goods exported i.e. 'Zero Rated Supplies' made vide shipping bills along with entitled interest @ 9% to the petitioner till the date of actual refund, within a period of six weeks: High Court [para 5]

- Petition allowed: MADRAS HIGH COURT

2021-TIOL-990-HC-KAR-VAT

Prosper Jewel Arcade LLP Vs DCCT

VAT - Writ appeal has been filed by the appellant being aggrieved by the order dated 25.10.2018 = 2018-TIOL-2488-HC-KAR-VAT , and by which the Single Judge has disposed of the writ petition with a liberty to avail the alternative remedy available under the law.

Held:

++ Appellant's basic contention is that the State is denuded of its power to re-assess a dealer's tax liability under the provisions of the KVAT Act after amendment to Entry 54 of the State List vide the Constitution (101st Amendment) Act, 2016, which was notified to be brought into force w.e.f., 16.9.2016 and the subsequent repeal of the KVAT Act w.e.f., 1.7.2017, vide Section 173 of the KGST Act.

++ The appellant's contention is totally untenable in view of the insertion of saving clause, namely Section 174 of the KGST Act in order to ensure that the repeal of the KVAT Act shall not affect liabilities accrued or tax payable under the KVAT Act. Therefore, in view of the savings clause under Section 174, the appellant's contention that the State cannot reassess the liability incurred prior to repeal of the KVAT Act is totally baseless. [para 41]

++ In respect of challenge to the constitutional validity and the assertion that the State's legislative power have been taken away, it is pertinent to note that the power to enact Section 174 of the KGST Act can be traced to Article 246A, which, when read with Article 366(12-A), confers power on the States to make laws with respect to any tax on supply of goods. Accordingly, Section 174 is a validly enacted piece of legislation and cannot be said to be without legislative competence. Hence, the contention of the appellant that Section 174 is a still born provision and unconstitutional is devoid of merits and substance. [para 42]

++ Single Judge was, therefore, justified in holding that the reassessment order dated 31.3.2018 for the period 2012-13 is clearly appealable before the appellate authority under Section 62 of the KVAT Act, 2003. [para 43]

++ Writ appeal is dismissed with a liberty to the assessee to avail the alternative remedy, if it so chooses and in case, the appeal is preferred within a period of four weeks from today, the issue of limitation will not come in the way and the matter shall be decided on merits. [para 44]

- Appeal dismissed: KARNATAKA HIGH COURT

2021-TIOL-989-HC-MAD-ST

MGM International Exports Ltd Vs ACST

ST - Refund - Petitioner was a recipient of service from M/s. IMC Limited and the said company had charged service tax on the petitioner for utilizing the storage facility - CBEC by a clarification dated 24.04.2002 informed that such agencies cannot be considered as "clearing and forwarding agents" and no service tax is payable and that such services would be covered by the proposals made by the Finance Bill, 2002 - M/s. IMC Limited filed a refund claim before the jurisdictional Assistant Commissioner of Service Tax on 23.07.2002 and the petitioner on coming to know of the above development has filed a refund claim on 27.06.2005 (of the service tax borne for the period between September 1999 to March 2000) - refund claim was rejected on the ground that the claim was time barred - since this order was upheld by the appellate authorities, the present writ petition has been filed.

Held:

++ Admittedly, collection of service tax by IMC Ltd. during the material period in dispute was contrary to law as was clarified by the Central Board of Excise and Customs vide its Circular dated 24.04.2002. Thus, the collection of the amount was contrary to Article 265 of Constitution of India and, therefore, the amount collected ought to have been refunded back, if a refund claim was filed in time from the date of payment under Section 11B of the Central Excise Act, 1944. [para 20]

++ Thus, collection of tax by IMC Ltd. was not only contrary to the provisions of the Finance Act, 1994 but also the appropriation of such amount by the service tax department contrary to Article 265 of the Constitution of India. However, payment of tax by IMC Ltd. and appropriation and collection by service tax department at best was on account of mis-construction of the provisions of the Finance Act, 1994 as it stood and therefore, any refund of such tax paid on borne by any person would be governed by the provisions of the Central Excise act, 1944 as made applicable to refund under Finance Act, 1994 by virtue of Section 83 of the Finance Act, 1994. [para 21]

++ Therefore, refund of tax if any borne by the petitioner had to be made only within a period of limitation prescribed under Section 11B of the Central Excise Act, 1944 notwithstanding the fact that the petitioner became aware of the wrong payment of tax only after the Central Board of Excise and Customs issued clarification bearing reference Order No. 2/1/2002-ST dated 24.4.2002. Thus, the period prescribed under section 11B of the Central Excise Act, 1944 had expired long before the above clarification was issued. [para 22]

++ Bench is unable to persuade itself to grant any relief to the petitioner even though the petitioner has been wrongly made to pay and suffer tax.

++ Writ petition is dismissed with liberty to the petitioner to implead itself in the Writ petition, if any, that may have been filed by IMC Ltd. [para 26]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-243-CESTAT-AHM

Ram Ratna Wires Ltd Vs CCE & ST

CX - This appeal has been filed by appellant against order demanding reversal of Cenvat Credit under Rule 6(3) of CCR, 2004 - Appeal has also been filed by Manager of the appellant firm - The appellants are clearing goods under notfn 43/2001-C.E . (N.T.) for use in manufacture of goods to be exported - The goods are cleared to National Electricals Equipments Corporation, Jaipur who in turn uses these goods for manufacture of goods to be exported - Similar issues has been examined in various decisions of Tribunal and higher forums - In the case of Aarti Steels limited 2004-TIOL-180-CESTAT-DEL , alloy and non alloy steel wires cleared under CT-2 certificate to cycle tyre manufacturers who exported goods at Nil rate of duty - The clearances made by appellant under notfn 43/2001-CE (N.T.) on the strength of Annexure 45 cannot be held as exempted clearances and therefore, no reversal of Cenvat Credit is necessary - The appeal of Shri Sunil Rathi against imposition of penalty is also allowed: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-242-CESTAT-MAD

Acer India Pvt Ltd Vs Pr.CC

Cus - Appellants imported laptop computers and cleared the goods by paying Special Additional Duty (SAD) - Subsequently, the goods were sold to various educational institutions - However, no sales tax was paid on the transactions as this transaction qualify as a sale in the course of import and it was exempted from CST under Section 5 (2) of CST Act - Thereafter, they filed refund claim for the SAD paid during relevant period - Same was rejected on the ground that the appellant has neither paid VAT nor CST on the imported goods - The said issue was analyzed by Tribunal in appellant's own case and by following the said decision, it is held that rejection of refund claim is unjustified - The impugned order is set aside: CESTAT

- Appeals allowed: CHENNAI CESTAT

2021-TIOL-241-CESTAT-BANG

Ace Creative Learning Pvt Ltd Vs CCT

ST - The appellant is providing Commercial Training and Coaching Services and they have also invested in the mutual funds and have earned profit which they have shown as under the head "other income" - The Department has wrongly considered the investment in mutual fund as trading in mutual funds and has issued a notice on the presumption that the appellant is providing exempted services which is trading in mutual funds and has not maintained separate records for common input services availed in providing the output services and exempted activity i.e. trading and hence are liable to pay 6%/7% of the amount of exempted services - The 'trading' has not been defined under Service Tax but in the context of securities, 'trading' means an activity where a person is engaged in selling the goods and occupy for the purpose of making profit but certainly trading is different from redemption of mutual fund units, in the present case appellant cannot transfer the mutual fund units to third party and give only by redemption to the mutual fund because the appellant is not permitted to trade mutual fund unit in the absence of a license from the SEBI - The appellant cannot be termed as "service provider" because he only makes an investment in the mutual fund and earn profit from it which is shown in the Books of Accounts under the head "other income" - Hence, the question of invoking Rule 6 does not arise and the Department has wrongly invoked the provisions of Rule 6(3) demanding reversal of credit on the exempted services - Substantial demand is time-barred as during the audit, the Department entertained the view that the appellant is engaged in providing the exempted services and consequently issued the SCN - Extended period cannot be invoked where the Revenue's case is based on Balance Sheet and income return and other records of the appellant - The impugned order is not sustainable in law and the same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-240-CESTAT-BANG

Popular Vehicles and Services Ltd Vs CCT & CE

ST - A ppellant is an Authorized Service Station and on verification of the appellant's financial records, the Department entertained the view that the appellant is rendering free service and warranty labour charges which is a taxable service but the appellant has not paid any service tax; that no separate accounts of input services utilized for providing exempted services as required under CCR was also maintained - demand of Rs.23,725/- confirmed along with interest and penalty which was upheld by Commissioner(A), hence appeal to CESTAT.

Held: Department vide o-in-o issued to another branch of the company on identical issue confirmed that the income in service centre for free service and warranty labour is booked through notional entries being worked under the concept 'separate profit centre' and corresponding expense is accounted in Head Office books and thereby net income is ZERO; therefore, no service tax can be levied on amounts representing the dealer's margin or any part of it which was already subject to sales tax - this order has not been appealed against by department and hence has attained finality - moreover, Commissioner(A) in another o-in-a has allowed the appeal of assessee by holding that no service tax is due on free services and warranty service - since department itself has dropped the demand on free services, confirmation of demand by invoking rule 6(3)(i) of CCR is unsustainable - appeal allowed: CESTAT [para 5]

- Appeal allowed: BANGALORE CESTAT