2021-TIOL-1254-HC-DEL-GST

Syschem India Ltd Vs UoI

GST - Petitioner contends that since the CENVAT credit was granted pursuant to the order dated 5th October, 2018 passed by the Commissioner and the order dated 8th May, 2019 passed by the Commissioner (Appeals), which is after the appointed date of 1st July, 2017 when the GST regime came into force, the Petitioner should be allowed to file the necessary form for transitioning the accumulated credit.

Held: In the instant case, there is an additional factor which goes in favour of the Petitioner, i.e. the CENVAT credit has been allowed in favour of the Petitioner pursuant to the orders passed by the authorities in 2018-19 i.e., after the cut-off date - In these circumstances, the Petitioner may not have genuinely anticipated that he would be required to file TRAN-1 Form particularly since the said amount could not have been reflected in the tax return - Court is satisfied that the Petitioner's difficulty in filling up the correct credit amount in the TRAN-1 Form is a genuine one which should not preclude him from having his claim examined by the authorities in accordance with law - Accordingly, a direction is issued to the Respondents to either open the portal so as to enable the Petitioner to file TRAN-1 Form electronically or to accept a manually filed TRAN-1 Form on or before 30th June, 2021 - The Respondents shall thereafter process the same in accordance with law - Petition is allowed: High Court [para 7, 9, 10]

- Petition allowed: DELHI HIGH COURT

2021-TIOL-1253-HC-DEL-GST

Jahanpanah Club Vs UoI

GST - Petitioner contends that since the CENVAT credit was granted pursuant to the order dated 5th October, 2018 passed by the Commissioner and the order dated 8th May, 2019 passed by the Commissioner (Appeals), which is after the appointed date of 1st July, 2017 when the GST regime came into force, the Petitioner should be allowed to file the necessary form for transitioning the accumulated credit.

Held : In the instant case, there is an additional factor which goes in favour of the Petitioner, i.e. the CENVAT credit has been allowed in favour of the Petitioner pursuant to the orders passed by the authorities in 2018-19 i.e., after the cut-off date - In these circumstances, the Petitioner may not have genuinely anticipated that he would be required to file TRAN-1 Form particularly since the said amount could not have been reflected in the tax return - Court is satisfied that the Petitioner's difficulty in filling up the correct credit amount in the TRAN-1 Form is a genuine one which should not preclude him from having his claim examined by the authorities in accordance with law - Accordingly, a direction is issued to the Respondents to either open the portal so as to enable the Petitioner to file TRAN-1 Form electronically or to accept a manually filed TRAN-1 Form on or before 30th June, 2021 - The Respondents shall thereafter process the same in accordance with law - Petition is allowed: High Court [para 7, 9, 10]

- Petition allowed: DELHI HIGH COURT

2021-TIOL-1251-HC-DEL-GST

Emaar MGF Land Ltd Vs UoI

GST - When the application was listed before Court, it was recorded that in all the matters, concerning builders, the Court has granted a stay qua further investigation and in any event, it is not possible to participate in investigation in view of Corona virus pandemic prevailing in the country - Other matters, which raise similar issues, are listed before this Court for hearing on 09.08.2021 - For the moment, the summons issued should be kept in abeyance till the next date of hearing, i.e., 09.08.2021 - Quite obviously, the petitioner cannot plead defence of limitation, by including the period for which the summons are kept in abeyance, as the leeway is given, inter alia, for the benefit of its authorised representatives and employees - It is ordered accordingly: HC

- Application disposed of: DELHI HIGH COURT

2021-TIOL-1250-HC-DEL-GST

Confederation of Indian Alcoholic Beverage Companies Vs UoI

GST - The issue relates to appropriate classification and the rate of tax to be imposed in respect of job work activities undertaken by contract bottlers concerning bottling of alcoholic beverages - The sum and substance of the minutes of meetings of GST Council, held on 14.03.2020 and 12.06.2020, which concerns the issue at hand, is that, there is no uniformity in the stand taken by the States - These views are variegated - At one end of spectrum, the view is that there should be a total exemption from imposition of tax while at the other end the view expressed is that tax should be imposed at the highest rate - Some States, though, have taken the middle path, which is, that the tax, according to them, should be pegged at the rate of 5%, by treating the aforementioned activity, as one involving bottling of "food and food products" - The matter in issue is pending consideration before GST Council - It is also not disputed that the GST Council has indicated that it would take a decision in the matter - The court is inclined to issue notice in the writ petition and the captioned interlocutory application - Having regard to the fact that the GST Council is to take a decision in the matter, the concerned officers will not take any coercive measures against the noticee(s) till the next date of hearing: HC

- Matter listed: DELHI HIGH COURT

2021-TIOL-1249-HC-MAD-VAT

Sri Shanmugavel Mills Pvt Ltd Vs Assistant Commissioner (ST)

In writ, the High Court finds that the issues raised by the assessee are settled in its favor vide the judgment of the Supreme Court in Special Leave to Appeal (C) Nos. 15785-15788 of 2020. Hence the assessee is entitled to the inclusion of HSD as a commodity in the registration certificate. The Court further directs that such exercise be completed in 4 weeks.

- Writ petitions allowed: MADRAS HIGH COURT

2021-TIOL-305-CESTAT-DEL

Bharti Hexacom Ltd Vs CCE & C, CGST

ST - The appellant is a provider of inter-alia, telecommunication services to customers and business support services to fellow telecommunication service providers - They claims to have discharged service tax liability on such services - Being a provider of output services, appellant avails CENVAT credit on inputs, inputs services and capital goods under the provision of CENVAT Rules - The issue involved is about the eligibility of appellant to claim CENVAT credit on tower, tower material and shelter - It is seen from the judgment of Delhi High Court in Vodafone Mobile Services 2018-TIOL-2409-HC-DEL-ST that towers and pre-fabricated shelters form an essential ingredient in provision of telecommunication service as they are used for the purpose of supplying the service and would qualify as 'inputs' and, therefore, CENVAT credit can be availed - Though the Delhi High Court in Vodafone Mobile Services has considered the judgment of Bombay High Court in Bharti Airtel 2014-TIOL-1452-HC-MUM-ST, but even otherwise in view of the decision of a Larger Bench of Tribunal in Kashmir Conductors 2002-TIOL-3 53 -CESTAT- DEL-LB, the view taken by jurisdictional High Court on a proposition of law has to be followed by the Tribunal - The Commissioner, therefore, committed an error in denying CENVAT credit to the appellant - Thus, the order passed by Commissioner cannot be sustained, same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-304-CESTAT-DEL

Sun Pharmaceutical Industries Ltd Vs CCE & C

CX - The appellant is engaged in manufacture and marketing of P & P medicaments and Bulk Drugs - Physician samples of such medicaments, distributed free of cost to physicians/doctors/hospitals for the promotion of product in market, are also manufactured by appellant - These physician samples are different from the normal sale packs of regular medicines in terms of quantity, colour and size and it is also clearly written in these samples that they are 'not for sale' - The appellant deposited an amount of Rs. 43,57,437/- under protest but specifically stated that it was not accepting the contention of department that it was required to pay differential duty from 25.04.2005 to 30.09.2006 - It cannot, therefore, be urged that the appellant had deposited any amount under sub-section (1)(b) of section 11A of Central Excise Act, 1944, in which case only notice was not required to be served on the appellant - It was obligatory on the part of Central Excise Officer to have issued a notice to the appellant for payment of short paid amount of duty and, thereafter, adjudicate upon it - However, the amount deposited by appellant under protest has been appropriated towards differential excise duty without issuance of any notice contemplated under section 11A of Central Excise Act - A Division Bench of Tribunal in Jeet Ram Enterprises 2005-TIOL-1397-CESTAT-DEL, while dealing with this aspect and after referring to earlier decisions, observed that in view of the provisions of section 11A of the Central Excise Act, is necessary to issue a SCN before a demand can be confirmed - After the appellant deposited the amount under protest, it filed a representation explaining the circumstances under which the amount had been deposited under protest - The appellant also mentioned that it was entitled to refund of the amount, for which a separate application would be filed - Subsequently, the appellant did filed an application for refund - The application was initially rejected by Commissioner and the appeal filed by appellant before Commissioner (Appeals) was also dismissed but on a further challenge to the Tribunal, the matter was remitted to the adjudicating authority for passing a fresh order - The adjudicating authority again rejected the claim for refund and also found that the amount of interest was correctly appropriated - The appeal filed before Commissioner (Appeals) was dismissed - The reasoning given by Commissioner (Appeals) that there was no requirement of issuing a notice under section 11A of the Central Excise Act is, therefore, not correct - It is, therefore, not possible to uphold the order rejecting the refund claim filed by appellant - In the first instance, when the order rejecting the refund claim filed by the appellant has been set aside and the appellant is entitled to the refund amount, there is no reason as to why the appellant should be asked to pay any interest for the alleged delay in deposit of the said amount - Secondly, no notice was issued to the appellant for deposit of interest amount - In the absence of any notice having been issued demanding this amount, the amount could not have been appropriated - Thus, the order passed by Commissioner (Appeals) rejecting the refund claim is set aside - The appellant would be entitled to refund - The order for appropriation of Rs. 14,38,359 /- towards interest, as confirmed by Commissioner (Appeals) by order dated 16.08.2018, is also set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-303-CESTAT-DEL

Fle Fast Line Express Pvt Ltd Vs CC

Cus - The appellant is in appeal against impugned order whereby, the registration of appellant under Courier Imports and Exports Regulations, 2010 has been revoked and the entire amount of security deposit of Rs. 10 lakhs furnished by appellant has been forfeited - Further, a penalty has been imposed upon the appellant - The appellant is an authorized courier under Regulations - The job of an authorized courier agent is somewhat similar to the job of a customs broker - He is required to file declarations before the customs officers in respect of all consignments, which were imported by him based on the documents - He has no authority to open the consignment - Further he is also required to verify the identity of importers through KYC documents - The appellant received KYC documents of all the three alleged importers under the cover of their letters but they were received through Balvinder Singh - Having received the documents, appellant verified the KYC documents and found the importers to be genuine - There is no dispute that all the three importers in whose name the imports were made exist - The second set of documents which the appellant received is in the form of invoices along with the consignments - On investigation, customs officers found that the shoes which were imported were counterfeit Nike shoes - It would have been impossible for the appellant or even the customs officers or even for the experts to determine that the contents were counterfeit goods without opening the packages - The appellant, as an authorized courier, is prohibited from opening the packages - It would have been a different case, if there was sufficient evidence that the appellant was aware that the goods were counterfeit shoes or if the appellant had a role to play in the scheme to import them - The only fault of appellant is that instead of receiving the KYC documents directly from the hands of owners of M/s Legend Creations and M/s. Personal Creations, it received the documents with covering letters handed over by Balvinder Singh - This action of appellant does not constitute not exercising due diligence to ascertain the correctness and completeness of any information which he submitted to the proper officer with reference to any work related to the clearance of imported goods as required under Regulation 12(1)(v) - If the appellant had, instead, delivered the goods to Balvinder Singh or someone else, it would have proven their involvement in the misdeclaration - Therefore, the appellant has not violated Regulation 12(1)(v) and revocation of the registration and forfeiture of security deposit under Regulation 13(1) and imposition of penalty under Regulation 14 cannot be sustained, same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT