2021-TIOL-1231-HC-KAR-GST

UoI Vs Aditya Auto Engineering Pvt Ltd

GST - Writ appeal filed by Revenue against the order dated 17.2.2021 passed by the Single Judge - Respondent assessee had admittedly failed to file its returns prescribed under the GST law in Form GSTR 3-B and discharge its liability for the period from September 2018 till date - The assessment orders were, therefore, passed from time to time under Section 62 of the CGST Act quantifying the tax liability of respondent No. 1 and directing it to file its returns and discharge the arrears - Respondent No. 1 did not file its returns and discharge its tax liability - Instead, it challenged one such order passed under Section 62 of the CGST Act for the period w.e.f., September 2018 to August 2019 in first appeal and the same was dismissed on the ground that statutory pre-deposit was not made by respondent No. 1 as provided under Section 107 of the CGST Act - Thereafter, respondent No. 1 preferred a writ petition i.e., W. P. No. 52967/2019 challenging the assessment order passed under Section 62 of the CGST Act and the same is pending - Respondent No. 1 has also filed another writ petition i.e., present writ petition challenging the assessment order passed for the period w.e.f., September 2019 to October 2020 - Respondent No. 1 has also failed to file its returns for a continuous period of 6 months, hence, after following due process of law, the registration under the GST law was cancelled by an order dated 19.10.2020 and the same is also a subject matter of the present writ petition/writ appeal - Single Judge granted an interim order on 17.2.2021 staying the operation of cancellation of registration dated 19.10.2020, permitting respondent No. 1 to file manual returns for the backlog period and reserving liberty to the revenue to consider the request of respondent No. 1 for permission to pay the arrears of tax and instalments - As mentioned, this order is challenged in appeal by Revenue.

Held:

+ GST laws do not permit for filing of manual returns. There is no facility under the law to accept manual returns and by allowing respondent No. 1 to file returns manually will certainly unsettle the entire scheme of GST and, therefore, on this ground alone, the interim order passed by the Single Judge deserves to be set aside. [para 12]

+ Registration of respondent No. 1 is not in existence. The registration was cancelled for non-filing of its returns for a continuous period of more than two years and by granting an interim order, respondent No. 1 has been permitted to continue its business as a registered dealer even though the law prescribes that a person, who does not file returns for a continuous period of 6 months, is liable to be deregistered. [para 13]

+ Respondent No. 1 himself has admitted in the writ petition that it has not filed returns in form GSTRN-3B since 2018 and, therefore, the interim order passed by the Single Judge deserves to bet aside and the matter, in fact, deserves to be heard finally on merits. [para 14]

+ Total outstanding liability as reflected from the record prima facie appears to be Rs.16,83,45,476/- (tax amount) plus interest as applicable and penalty of Rs.1,70,71,385/- and, therefore, unless and until its liability is satisfied, such an interim order should not have been granted in the peculiar facts and circumstances of the case. [para 15]

+ The impugned interim order passed by the Single Judge dated 17.2.2021 deserves to be set aside and accordingly, it is set aside. However, the Single Judge is requested to decide the matter on merits, as expeditiously as possible. [para 16]

- Appeal allowed: KARNATAKA HIGH COURT

2021-TIOL-1228-HC-MUM-GST

Monica Daryanani Vs UoI

GST - Petitioner has challenged the validity and vires of the Notification 30/2021-Customs , dated 1st May, 2021, which imposes Integrated Goods and Services Tax ('IGST) at 12% on import of Oxygen Concentrators for personal use due to COVID-19 till 30th June, 2021, even when such goods are imported as Gift i.e. free of cost - Petitioner submits that the right to supply of oxygen during emergency is part of Right to Life guaranteed under Article-21 of the Constitution of India; that the notification is arbitrary as only the State government and authorised entities can import Oxygen Concentrator without payment of GST vide notification 28/2021-Customs ; that Oxygen Concentrators are expensive instruments and levy of @ 12% IGST on Concentrators imported free of cost has unfairly prejudiced the Petitioner during the time of medical emergency and ongoing crisis of shortage of Oxygen supply across the Country; that there are Notifications issued by the State of Haryana as well as Gujarat whereby the IGST refund mechanism is provided for with regard to the Concentrators imported free of cost; that, therefore, petitioner seeks to amend the Writ Petition and rely upon the said notifications; that they are also desirous of impugning the ad hoc exemption order notification 4/2021-Customs , Dated: May 03, 2021.

Held: Petitioner is allowed to amend the Writ Petition - Amendments are to be carried out within a period of one week from today - Respondents to file affidavit-in-reply within a period of two weeks - Matter to stand over to 7th June, 2021: High Court [para 2 to 4]

- Matter listed: BOMBAY HIGH COURT

2021-TIOL-1230-HC-DEL-CUS

DRI Vs Puspha L Tolani

Cus - Short question that arises in this petition is as to, what is the limitation period for filing a suit for malicious prosecution, against the customs authorities/officials, under the Customs Act, 1962.

Held:

+ A conjoint reading of Section 198 of the Sea Customs Act, 1878, Section 155(2) of the Customs Act, 1962, as also the judgments, leads this Court to the following conclusions:

( i ) The limitation provided under Section 155(2) does not apply to suits.

(ii) The limitation provided under Section 155(2) applies to other proceedings.

(iii) For the purpose of institution of other proceedings, one month's previous notice in writing, from the date when the cause of action arises, is required.

(iv) None of these other proceedings can be filed after the expiration of three months from the accrual of the cause. [para 35]

+ Therefore, insofar as a suit for malicious prosecution, i.e., a civil suit, is concerned, the period of limitation of three months, as also the requirement of a notice, under Section 155(2) of the Customs Act, 1962, would not be applicable. The period of limitation for filing such a civil suit would be governed by the provisions of The Limitation Act, 1963. [para 36]

+ A perusal of the provisions of The Limitation Act, 1963, shows that the period of limitation for filing of a suit for malicious prosecution is one year, from the date when the Plaintiff is acquitted or when the prosecution against the Plaintiff is otherwise terminated. [para 38]

+ The date of the acquittal of the Plaintiff/Respondent is 11th April 2007 and the suit for malicious prosecution was instituted by her on 11th April 2008. As per Section 12(1) of the Limitation Act, the date from which the period of limitation is to be reckoned, is to be excluded while calculating the said period. This would clearly mean that the date, as on which the order of acquittal of the Plaintiff was pronounced by the ld. Sessions Judge, would have to be excluded for the purpose of calculating the limitation of one year for filing of the suit for malicious prosecution. Thus, the limitation, under Section 3 of the Limitation Act r/w Entry 74 of the Schedule would commence only on 12th April 2008. The suit for malicious prosecution in the present case, having been filed on 11th April 2008 which is within the period of one year is, therefore, well within the limitation prescribed under The Limitation Act, 1963. [para 40]

+ Hence, this court is of the opinion that the suit is well within limitation, as the period of limitation under Section 3 and Section 12 of the Limitation Act, 1962, r/w Entry 74 of the Schedule of the Limitation Act, would have ended only on 12th April 2008, which is one day after the date when the suit for malicious prosecution was presented by the Plaintiff/Respondent. The suit is thus within limitation. [para 42]

+ Present petition of DRI fails and is accordingly, dismissed. [para 43]

- Petition dismissed: DELHI HIGH COURT

2021-TIOL-300-CESTAT-CHD

MSC Agency India Pvt Ltd Vs CC

Cus - The appellant is in appeal against impugned order wherein the penalty has been imposed under Section 112 of Customs Act, 1962 on the ground of mis-declaration of goods in description as well as in quantity in bills of landing - It was asked by revenue that whether the seal of container was intact - This was answered in affirmative - As the fact has not been disputed by Revenue and the mis-declaration of weight and description of the goods was found at the time of physical examination of the goods - Relying on the decision in case of M/s M S C Agency India Pvt Ltd it is held that penalty on the appellant cannot be imposed - The said decision is based on the decision of Madras High Court in the case of Container Corporation of India Ltd. and the decision of Bombay High Court in the case of Shaw Wallace & Co. Ltd. - No merit found in the impugned order, same is set aside qua penalty imposed on the appellant only: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2021-TIOL-299-CESTAT-AHM

Supreme Treves Pvt Ltd Vs CCE & ST

ST - The issue arises is that whether the Service tax is chargeable on remuneration paid by a company to the Managing Director and the whole time Executive Director and whether they are its "employees" and the remuneration paid to them is in the nature of "Salary" - The Commissioner despite the submission of appellants that the remuneration paid by appellants to the managing director and the executive director of the company was shown as "Salary" and declared in Form- 16 which is a income tax return for the salary income decided that the remuneration paid is not a salary but directors remuneration - Therefore, the same is liable to service tax in the hands of appellant - Though in the Income tax return, remuneration was declared as salary income but it is a self declaration - However, whether such income is a salary income or otherwise the same can be established on the basis of employment conditions for employment of directors as company's employees - In the entire proceedings, the appellant have not produced the appointment order of directors as employees containing the terms and conditions of employment - On the basis of terms and conditions of employment of directors as employees it can be ascertained whether the directors are employees or otherwise which is the root of the entire issue - Revenue has submitted the status of identical issue in case of M/s PCM CEMENT CONCRETE PVT LTD pending in the Supreme Court - The matter is coming up for final disposal - The Adjudicating Authority may take cognizance of Supreme Court judgment in said case while passing a de-novo order depending on the facts of the case: CESTAT

- Matter remanded: AHMEDABAD CESTAT