2021-TIOL-1066-HC-DEL-GST

Gurcharan Singh Vs MoF

GST - Import of Oxygen Concentrators - Bench had passed an order dated 05.05.5021 = 2021-TIOL-1045-HC-DEL-CUS to nudge the respondent department to take a decision to extend the exemption, to even individuals, to enable them to obtain imported oxygen concentrators by way of a gift, albeit, without having to pay IGST - Counsel for Revenue informed that the matter is still under consideration - Petitioner submits that the oxygen concentrator should be cleared, pending a final decision in the instant writ petition, upon the petitioner depositing, with the Court, an amount, equivalent to the IGST presently payable in consonance with the provisions of the impugned notification; that the petitioner will deposit the requisite amount with the Registry of this Court within the next three days.

Held: In the meanwhile, in case, the oxygen concentrator, sought to be imported by the petitioner, reaches the concerned customs barrier, the same will be released, subject to the petitioner depositing, with this Court, an amount equivalent to IGST presently payable by him, in accordance with the impugned notification, within three days - Upon the petitioner depositing the said amount, the Registry will invest the same in an interest-bearing fixed deposit, maintained with a nationalised bank - Intimation, as regards the same, will be furnished to the respondent - Needless to add, if there are any other formalities, connected to the clearance of the subject goods, i.e., the oxygen concentrator, required to be fulfilled, the same shall also be complied with by the petitioner - Since the requisite IGST will be deposited by the petitioner, with this Court, the respondent will not levy a charge qua the same on the importing agency, i.e., FedEx Corporation - Matter listed on 18.05.2021: High Court [para 7, 7.1, 7.2, 7.3]

- Matter listed: DELHI HIGH COURT

2021-TIOL-1055-HC-RAJ-GST

India Cements Ltd Vs UoI

GST - The petitioner had submitted the Form GST TRAN-1 under Section 140 of Central Goods and Services Tax Act, 2017 in order to carry forward the eligible credit on capital goods on 13.12.2017 - They made a mistake in feeding the wrong details of unavailed CENVAT Credit of Rs.7,89,420.76 - The Courts in precedent laws have dealt with two types of defaults; firstly, the registered persons loaded TRAN-1 by 27.12.2017, but there is a mistake and they want to revise the already loaded TRAN-1; whereas, secondly, the registered persons, who could not file TRAN-1 by 27.12.2017 and have no evidence of attempt to load TRAN-1 - The petitioner took all necessary steps of abiding by law by filling the Form GST TRAN-1 before 27.12.2017 - The issue is no more res integra as the delay and all other aspects have been dealt with by the Courts one after another, and the propositions of permission to make the necessary amendments in light of the new regime of GST have been affirmed upto the Supreme Court - Thus, Court finds no reason not to go with the settled view taken by Division Bench of Punjab & Haryana High Court in Adfert Technologies Pvt. Ltd. 2019-TIOL-2519-HC-P&H-GST as well as affirmation thereof by Supreme Court - Accordingly, court grants liberty to the petitioner to make an application before GST Council to issue requisite certificate of recommendation alongwith requisite particulars, evidence and a certified copy of the order instantly and such decision be taken forthwith and if the petitioner's assertion is found to be correct, the GST Council shall issue necessary recommendation to the Commissioner to enable the petitioner to get the benefit of CENVAT credit: HC

- Writ petition allowed: RAJSTHAN HIGH COURT

2021-TIOL-1061-HC-MAD-VAT

IGP Engineers Pvt Ltd Vs ACST

Whether writ petition can be entertained by High Courts, where the petitioner has not exhausted all appellate remedies available under the statute - NO: HC

- Assessee's writ petition dismissed: MADRAS HIGH COURT

2021-TIOL-1060-HC-MAD-CUS

P Murali Vs Senior Intelligence Officer

Cus - Seizure of 15 kgs of gold - Legal case put forth by petitioners is that once proceedings have been initiated by DRI in Chennai and statements recorded, the DRI in Kolkata cannot re-initiate or continue the proceedings; that the statements recorded by the DRI have, in fact, been retracted by them - Impugned summons does not give any inkling as to any adverse material that has been found linking them to the offending proceedings - The provisions of Section 108 vest authority in the officials to issue summons only for the purpose of giving evidence or production of documents or other items in their possession or control - The impugned summons says 'NA' to both parameters and hence there could be no other valid purpose for which they would be summoned, except to harass them - Petitioners would state that while they have no intention of disrespecting the statutory summons issued, proceedings must be initiated only by the authorities in Chennai and they should not be made to travel to Kolkata at their cost; that they would also offer that the proceedings should be conducted over video conference with the authorities in Chennai in attendance to ensure that proper decorum is maintained and the proceedings are conducted strictly in line with all legal prescriptions - Petitioners pray that the investigation be recorded by way of videography in the light of their apprehension of high handedness and arbitrariness by the respondents.

Held: - Bench is categoric that, as far as possible, the High Court should not interfere in a summons issued, except in exceptional cases - Facts in the present case do not bring these cases within the ambit of 'exceptional circumstances' - The submissions to the effect that once proceedings have been initiated by one authority, they should be continued in the same location and that there could be no recall of a witness do not impress - The role of the petitioners in the transaction is yet to be determined and it would inappropriate for this Court to intervene at this stage - Need for comprehensive videography, and the installation of CCTV cameras in all investigating agencies has been recognised and directions issued as early as in 2018 - This appears to be a work in progress - Meanwhile Courts continue to be flooded with writ petitions of the present nature putting forth allegations and apprehensions of abuse and torture, both perceived and justified - This would be obviated had a mechanism been put in place to ensure recording of the investigation - Such a process would seek to serve the interests of not only the person under investigation, but also the investigating agency - In the absence of any instructions that are reported regarding the status of CCTV cameras in the DRI offices at Kolkata, Bench directs that the process of investigation of the petitioners be video-graphed and the data stored till completion of the proceedings: High Court [para 18, 19, 30, 31]

- Petitions disposed of: MADRAS HIGH COURT

2021-TIOL-1056-HC-RAJ-CX

Saraswati Marble And Granite Industries Pvt Ltd Vs UoI

CX - The petition is directed against impugned orders, whereby their application for availing the benefits under Sabka Vishwas Scheme, 2019 in respect of refund amount of Rs. 26,80,834/- claiming the same to be amount in arrears in terms of provisions of clause (c) of Section 121 of Finance Act, 2019, stands rejected by designated committee - Admittedly, after the SLP filed by Revenue against the judgment dated 24.8.16 being allowed by Supreme Court, a SCN was issued by competent authority calling upon the petitioner to show cause and explain within 30 days of receipt of notice as to why Rs. 26,80,834/- refunded to them erroneously should not be recovered from them alongwith interest at the prevailing rates under Sections 11A & 11AB respectively of Central Excise Act, 1944, which culminated in passing of the order dated 30.11.17 - The challenge of petitioner to the order dated 30.11.17 before this Court failed as also the SLP preferred before Supreme Court and thus, the demand of erroneous refund created vide order dated 30.11.17 has attained finality - It is preposterous to suggest that had the matter remained pending before competent authority pursuant to the SCN issued, the petitioner was not entitled to avail the benefits under the Scheme of 2019 by virtue of provisions of Section 125(1)(d) of the Act of 2019 but since the proceedings stand concluded and the refund liability has attained finality, it will not fall within ineligibility contained in Section 125(1)(d) and shall fall within the definition of 'amount in arrears' so as to make the petitioner entitled to claim benefit under the Scheme of 2019 - By virtue of provisions of Section 125(1)(d) of the Act of 2019, a person who has been served with the notice to show cause under indirect tax enactment for an erroneous refund or refund shall be ineligible to make a declaration under the Scheme to claim benefits thereof and it does not make any difference that the notice to show cause issued stands culminated in passing of the order creating the demand of amount of erroneous refund - The petition preferred by petitioner lacks merits, same is hereby dismissed: HC

- Writ petition dismissed: RAJSTHAN HIGH COURT

2021-TIOL-269-CESTAT-CHD

Shiva Cable Network Vs CCE & ST

ST - The appellant is in appeal against impugned order wherein the Commissioner (Appeals) dismissed their appeal for non-compliance of provisions of Section 83 of Finance Act, 1994 r/w Section 35F of Central Excise Act, 1944 for non-deposit of mandatory pre-deposit - As the appellant has made compliance of condition of pre-deposit, therefore, the impugned order qua dismissal of appeal is set aside - As the Commissioner (Appeals) has not decided the issue on merits; therefore, in the interest of justice, matter is remanded back to the Commissioner (Appeals) to decide the issue only on merits in view of various judicial pronouncements on the issue - The issue of limitation has already been settled by Tribunal, therefore, Commissioner (Appeals) will decide the appeal of appellant on merits within 90 days: CESTAT

- Matter remanded: CHANDIGARH CESTAT