2021-TIOL-1054-HC-AHM-GST

Bhavesh Kiritbhai Kalani Vs UoI

GST - Freezing of bank accounts - Petitioner approached the respondent no.3 - the Bank through its Manager and requested to let him be provided the necessary details for the reason of freezing his account but no information was provided - Petitioner also approached the respondent no.2 at Mumbai with the similar request of de-freezing the account as also to provide the reasons of such attachment and it was orally conveyed that because of voluminous transactions with third party, which is involved in violation of the provisions of the CGST Act, his account was frozen -  In the  Reply received on 28.10.2020 under the provisions of RTI Act, 2005, it was informed that the information sought for could not be revealed on account of the fact that same would impede the process of investigation - Consequently, petitioner has approached the Court with a grievance that the action was totally arbitrary and Section 83 does not permit the freezing of the account of the third party for any steps which are needed to be taken against the assessee. 

Held:   Even for safeguarding the government revenue, provisional attachment of bank account is not permitted against the third party - Only upon the conditions provided under Section 83 being fulfilled, the powers are to be exercised - In the instant case also, there are no proceedings against the present petitioner under Sections 62, 63, 64, 67, 73 and 74 of the Act - There is no reason, therefore, to invoke section 83 against the writ applicant - Since the proceedings are initiated by the authorities in connection with the third parties, invocation of powers under Section 83 are not available with the respondents - It is also necessary to note that despite of due service to the bank, the bank has chosen not to remain present - Under the RTI Act, where information was sought by the petitioner, it has chosen not to divulge on the ground of pending investigation strangely - It is rightly pointed out that this action of freezing account is harsh and to be resorted as provided under the Statute - Thus, being a drastic power, the authority concerned cannot be oblivious of the serious consequences of provisional attachment of the bank account - Even if for the purpose of safeguarding the interest of the government revenue, the bank had chosen to follow the directions from the respondents, not to intimate to the petitioner as to why his account was frozen is wholly impermissible - In relation to the third party when such powers are impermissible to be exercised under section 83 of the Act, the bank ought to have applied its mind and more so when even under the RTI Act, the bank had been requested to furnish the details - A copy of this order is to be sent to the legal department of the bank for the future reference where it is not to be a party to something which the statute does not permit - Following the decision of the Division Bench in  PIYUSH SHAMJIBHAI VASOYA -  2021-TIOL-281-HC-AHM-GST , the impugned order of provisional attachment of bank account is quashed and set aside without addressing the issue concerning Section 79 of the Act which the Petitioner wishes to challenge before the appropriate forum - Writ petition succeeds and is allowed -  The attachment is ordered to be lifted and the petitioner is permitted to operate his bank account: High Court [para 9, 11, 13, 15, 16]

- Petition allowed: GUJARAT HIGH COURT

2021-TIOL-1048-HC-MAD-VAT

Three Star Maligai Vs CCT

Whether assessment order passed without granting an opportunity of personal hearing to the assessee, is in contravention of the principles of natural justice & so merits being set aside - YES: HC

- Matter remanded: MADRAS HIGH COURT

2021-TIOL-1046-HC-MAD-CUS

Chandrasegaram Vijayasundaram Vs Pr.CC

Cus - Refund - The entitlement of petitioners to the refunds is based on the order of first appellate authority, where he has held in favour of petitioners setting aside the order confiscating jewellery and extending an option for redemption on payment of redemption fine and penalty - On passing of original order, the petitioners had opted for redemption, redeemed the assets seized and re-exported the jewellery on payment of fine and penalty - The defence of respondents was that a revision, in terms of Section 129DD of Customs Act, 1962, has been filed as early as in May 2018 and thus, till such time the revision applications are disposed, the respondents would not be inclined to consider the request for refund - Admittedly, no interim protection has been obtained by respondents - Though the provisions of Section 129DD do not expressly provide for seeking or grant of interim protection, such provision for interim protection is implicit in any provision for appeal or revision and this is a position settled by decision in the case of Paulsons Litho Works 2003-TIOL-1208-HC-MAD-IT - However, petitioners does not insist on any positive relief, but would rest content if a direction is issued to the Principal Commissioner and Ex Officio Additional Secretary to Government of India for speedy disposal of revision applications - A direction is issued to dispose the revision applications, pending on their file, within a period of twelve weeks: HC

- Petitions disposed of: MADRAS HIGH COURT

2021-TIOL-268-CESTAT-CHD

Agro Life Sciences Corporation Ltd Vs CCE & ST

CX - The appellant is in appeal against impugned order wherein the credit has been denied to them on the premise as per Notification No. 02/14-C.E. (N.T.) - Without going into the merit of case, the appellant has contesting only on limitation - There is no provision in law for the appellant to file invoices before department in time - As the appellant was allowed credit by adjudicating authority although the revenue has filed appeal against those orders before Commissioner (Appeals) - When the adjudicating authorities are having a divergent view, the extended period of limitation is not invocable - Admittedly, the SCN has been issued by invoking extended period of limitation - The similar view was taken by Tribunal in Saraswati Agro Chemical (India) Pvt. Ltd. - Further, in the case of Dharampal Satyapal Limited , this Tribunal has taken a view on merit and held that the appellant is entitled to take cenvat credit on inputs - The SCN issued to the appellant is barred by limitation - The impugned order is set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2021-TIOL-267-CESTAT-AHM

Patel Labour Contractor Pvt Ltd Vs CST

ST - The appellant is engaged in supply of manpower to various industrial organizations as per the arrangements with service recipients - They charges 10% of the actual wages to be paid to the workers so hired/supplied as their service charges - A SCN was issued to the appellant on the ground that they were required to pay service tax on the gross value including wages/salary paid to the manpower so supplied - The SCN also alleged suppression, wilful misstatement on the part of appellant and invoked the extended period of limitation - Same was confirmed vide impugned order - The appeal can be disposed of on point of limitation without going into the merit of the case - The appellant filed periodically ST-3 return in respect of service provided by them declaring the value as per their bona fide belief which is equal to commission which they received from the service recipient - With this disclosure the revenue is very much in the knowledge about nature of service provided by appellant therefore the revenue was not prevented to verify the correctness of nature of service as well as the value declared by appellant in their ST-3 return - It cannot be said that the appellant have suppressed vital fact with intention to evade service tax - The issue is purely of interpretation of valuation provision under Finance Act, 1994 - The very same issue has been considered by Supreme Court in case of Malabar Management Services 2018-TIOL-19-SC-ST and finally decided in favour of assessee - In view of the judgment of Gujarat High Court in case of NR Agarwal Industries, it is settled that if on any issue there is a legal dispute which involved interpretation of law the mala-fide intention or suppression of fact with intent to evade payment of service tax cannot be attributed to the appellant - On this ground also the extended period of demand was not invocable - The period of dispute is 2005-06 to 2009-10 and SCN was issued on 19.05.2011 - It is also observed that the appellant has filed their ST-3 return covering the period October 2009 to March 2009 on 27.04.2010 - The entire demand is beyond the normal period and falling under the extended period of limitation - The impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT