2021-TIOL-1393-HC-MAD-GST

Ars Steels And Alloy International Pvt Ltd Vs STO

GST - The petitioners are engaged in the manufacture of MS Billets and Ingots - MS scrap is an input in the manufacture of MS Billets and the latter, in turn, constitutes an input for manufacture of TMT/CTD Bars - There is a loss of a small portion of the inputs, inherent to the manufacturing process - The impugned orders seek to reverse a portion of the ITC claimed by the petitioners, proportionate to the loss of the input, referring to the provisions of Section 17(5)(h) of the GST Act - Petitions filed against these orders.

Held : The impugned assessment orders reject a portion of ITC claimed, invoking the provisions of clause (h) - This clause relates to goods lost, stolen, destroyed, written off or disposed by way of gift or free samples - In the considered view of the Bench, the loss that is occasioned by the process of manufacture cannot be equated to any of the instances set out in clause (h) above - The situations as set out above in clause (h) indicate loss of inputs that are quantifiable, and involve external factors or compulsions - A loss that is occasioned by consumption in the process of manufacture is one which is inherent to the process of manufacture itself - In the case of Rupa & Co. Ltd. = 2015-TIOL-2125-HC-MAD-CX , a Division Bench of this Court held that CENVAT credit should be granted on the original amount of input used notwithstanding that the entire amount of input would not figure in the finished product - In the light of the discussion, Bench is of the view that the reversal of ITC involving Section 17(5)(h) by the revenue, in cases of loss by consumption of input which is inherent to manufacturing loss is misconceived, as such loss is not contemplated or covered by the situations adumbrated under Section 17(5)(h) - The impugned orders to the above extent are set aside and the petitions are allowed/partly allowed: High Court [para 10, 11, 12, 14, 15, 16]

- Petitions allowed/partly allowed: MADRAS HIGH COURT

2021-TIOL-1391-HC-MP-GST

Gemini Promoters Builders Pvt Ltd Vs UoI

GST - Rate of GST at the time of submission of bid was 18% and the petitioners while submitting the bid had quoted the rates keeping in mind the prevailing rates of GST i.e. 18% on works contract - In view of decrease in rate of GST to the tune of 6%, the same is required to be regularized through minus adjustment - The petitioner- M/s. Gemini Promoters & Builders Private Limited was asked to deposit a sum of Rs.66,00,000.00/- and the petitioner- M/s. Ramji Das Dhal Construction Private Limited was asked to deposit a sum of Rs.34,21,140.00/-, i.e. 6% of the their total contract value, within 15 days, failing which the amount was proposed to be recovered from its running bills - Petitioners, therefore, made representations to the respondent No. 2, but to no avail, hence, these petitions.

Held : Clause 71 provides for referring disputes first to the Disputes Resolution Board in case the contacts valuing to Rs.10 crore or more, which would precede reference of dispute to the arbitrator under Clause 70 of the agreement - It is, therefore, Clause 71 which has to be first applied and the remedy available before the Dispute Resolution Board has to be first exhausted - An efficacious alternative remedy is indeed available to the petitioners - Bench is not inclined to uphold the argument that Dispute Resolution Board could be constituted only if petitioner agreed and, therefore, since the petitioners have not given their consent, such Board could not be constituted - Bench is persuaded to uphold the preliminary objection raised by the respondents and direct the respondents to constitute a Dispute Resolution Board within a period of one month and further direct that the Board shall, after providing opportunity of hearing to the petitioners as well as the respondents, give its verdict, within a period of three months thereafter - Petitions stand disposed of: High Court [para 8, 9]

- Petitions disposed of: MADHYA PRADESH HIGH COURT

2021-TIOL-1390-HC-MP-GST

Arun Construction Company Rewa Vs State of Madhya Pradesh

GST – Petitioner seeks issuance of a writ of mandamus directing the Respondents to make the payment/reimbursement of the applicable GST on the amount of work executed and the Petitioner may further be exonerated from all the GST Liabilities, in respect of the Contract under reference; in the alternative, to direct the Respondents to make policy to deal with the issue of payment of GST on the Works Contract executed prior to GST implementation i.e. 01.07.2017 and work of which were continued post 01.07.2017 wherein, GST is not paid by the Department but, was levied while procurement of the Goods and Materials.

Held: Bench deems it proper to direct the respondent No.1- Principal Secretary, Public Works Department, Government of M.P., Bhopal to decide the said representation which will be filed by the petitioner by a speaking order after providing opportunity of hearing to the representative of the petitioner within a period of three months – Petition disposed of: High Court

- Petition disposed of: MADHYA PRADESH HIGH COURT

2021-TIOL-1392-HC-AHM-CUS

Hindustan Unilever Ltd Vs UoI

- Petitioner has also sought direction against the respondents to permit the petitioner to amend 324 Bills of Entry by substituting the existing GSTIN Number with GSTIN No. 24AAACH1004N1Z0, and refrain the respondents from taking any steps or proceedings to deny or dispute or recover the credit taken by the petitioner of the IGST paid in pursuance of the assessment of goods imported by the petitioner and covered vide 324 Bills of Entry in the petitioner's electronic credit ledger maintained under GSTIN No. 24AAACH1004N1Z0 – Petitioner further submits that their request to amend the GST details in the Bills of Entry in question made under section 149 of the Customs Act, 1962, has not been granted only on the ground that the system is showing the remark "Data already shared with GSTN. No amendment in GSTN ID is Possible now" as communicated to the petitioner vide the impugned communications – Counsel for respondents have submitted that they have no objection if the request of the petitioner to amend the GST details in the Bills of Entry is directed to be considered afresh after giving the petitioner opportunity to prove his documents in respect of which the amendment is sought in light of Section 149 of the Customs Act.

Held : Without going into merits of the case, it is directed that the request of the petitioner to make amendment in GST details in the Bills of Entry in question, may be examined by the concerned respondent Nos. 4, 5, 6 and 7 afresh after giving the petitioner an opportunity of hearing and permitting the petitioner to produce the relevant documents, and appropriate orders be passed in accordance with law, within a period of six weeks from the date of receipt of copy of this order – Petition disposed of: High Court [para 5, 6]

- Petition disposed of: GUJARAT HIGH COURT

2021-TIOL-350-CESTAT-MUM

Joy Home Creation Pvt Ltd Vs CC

Cus - The dispute originated with allegation of value of 'Toyota Landcruiser', imported by one Valvatkar Mujaffar Mohammed Salhe on which duty liability of Rs. 11,99,329 was discharged on ascertainment of assessable value of Rs. 7,19,166 applicable to manufacture in 1999 as declared in bill of entry and in possession of appellant, Ms. Marina J. Mahi, from whom seizure was effected, having been misdeclared by concealing evidence of manufacture in 2003 - The appellant has not contested the findings of original authority, as upheld by first appellate authority, that the plate bearing chassis number had been tampered with intent to evade duties of customs by misrepresenting the age of vehicle - Scope of this proceeding is restricted to the claim of appellant that she has not been involved in breach of condition of 'no sale' subject to which such imported vehicles are permitted to be cleared - It is clear from the conditions specified in public notice no. 3 that endorsement of 'no sale' for two years was to be recorded by the competent authority in the registration certificate of the vehicle - The appellant cannot be held liable as a willful participant in breaching conditions of import - Consequently, the penalty on the appellant does not sustain - The vehicle was held to be liable to confiscation for misdeclaration of value as well as for alleged breach of condition of 'no sale'; though the relative gravity of each has not been mathematically determined, the lack of challenge to the former precludes erasure of confiscation under section 111 of Customs Act, 1962 and, thereby, retains fine, even in the lack of segregation, for redemption - In this peculiar circumstance of challenge restricted to one of the grounds of confiscation coupled with the absence of appeal by the person affected by the other, it would be inappropriate to contemplate alteration of the fine - Such fine is recoverable only upon exercise of option to redeem the confiscated goods - Such request not having been tendered on behalf of the appellant, this proceeding may well ignore that element in the impugned order - The appeal is allowed to the extent of setting aside the penalty imposed on the appellant with the clarification that the appellant may not be subjected to recovery proceedings for differential duty, redemption fine or penalty that devolves on the importer: CESTAT

- Appeal partly allowed: MUMBAI CESTAT

2021-TIOL-349-CESTAT-BANG

Mangalore Refinery And Petrochemicals Ltd Vs CCE & CT

CX - The appellant is engaged in business of refining and manufacturing of petroleum products - They availed cenvat credit on input services, inputs and capital goods used in or in relation to the manufacture of petroleum products - During audit, certain discrepancies found in the documents on which credit was availed - The Adjudicating authority granted partial relief and disallowed a major portion - The O-I-O also imposed a penalty under Rule 15 of Cenvat Credit Rules, 2004 - Being aggrieved, appellant preferred appeal before Tribunal contesting the demand of cenvat credit as well as imposition of penalty - The Tribunal vide Final order dated 18/07/2014, remanded the matter after directing the appellant to make a pre-depsoit of Rs. 5 lakhs - The appellant in compliance of said Final Order deposited Rs. 5 lakhs but the Commissioner in spite of two reminders by appellant, took nearly six years to pass the impugned order, which speaks volumes on how the matter has been dealt by Department causing unnecessary harassment to the appellant which is a public sector undertaking and is a big revenue contributor in the jurisdiction of Mangalore - For the subsequent period, having the same issue, the Department completely dropped the demand in SCN for the period October 2011 to June 2012 - If the Department has dropped the demand on identical issue for the previous period as well as the subsequent period, then why for the disputed period, appellant had to fight three rounds of litigation - It is not disputed that the appellant has not utilized cenvat credit and reversed the same as soon as it was pointed out and the fact of availing of cenvat credit was very much in the knowledge of Department because the appellant has been filing the returns regularly, so interest is not payable - As far as imposition of penalty is concerned, the decision of Supreme Court in case of Uniworth Textiles Ltd. 2013-TIOL-13-SC-CUS , will apply in this case wherein it is held that the burden of proof to establish the mala fide , rests heavily on the person who is alleging mala fide - The impugned order is not sustainable in law and therefore same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-348-CESTAT-MAD

AstraZeneca India Pvt Ltd Vs CGST & CE

ST - The appellant had filed a refund claim of unutilized input service credit availed on various input services and after putting the appellant on Notice, the Adjudicating Authority granted a partial refund - The reason given by Adjudicating Authority for rejecting a part of refund claim was that the said CENVAT Credit on input services was taken for period before October 2016 while arriving at total CENVAT Credit taken during the quarter October to December 2016 and hence, according to him, the same was ineligible - It has been held in case of WNS Global Services Pvt. Ltd. 2015-TIOL-534-CESTAT-MUM that for the purposes of refund, the CENVAT credit of any particular quarter will include the amount of brought forward credit as well from the earlier quarter - When this is the position of law, then denying the refund on the ground that the CENVAT Credit on input services was taken for the period before October 2016 while arriving at the total CENVAT Credit taken during the quarter October to December 2016, cannot stand - Moreover, it is not the case of Revenue that the appellant's claim for refund lacks any merit - Accordingly, the appellant's claim for refund is in order and the rejection of the same is improper - Hence, the impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT