Rajan Himatbhai Aghara Vs Senior Intelligence Officer

GST - Anticipatory bail application has been filed under Section 438 of Cr. P. C. by the applicant as he is apprehending arrest for offence under Section- 132 (1)(b) and 132(1)(c) of the Central Goods and Services Tax Act and Gujarat Goods and Services Tax Act - Allegation is fraudulent transfer of input tax credit and evasion of huge amount of GST by procuring invoices without actual supply of goods and further to pass on input tax credit to various mineral manufacturers in Morbi- Wankaner region; evasion of GST to the tune of Rs. 18.04 Crores - It is submitted that insofar as the present applicant is concerned, he is only a partner in M/s Martiz Cera and the allegations against Martiz Cera are of tax evasion to the tune of around Rs. Thirty Two Lakhs and the applicant is ready to deposit the amount of Rs. 32 lakhs with the respondent department without prejudice to his rights and an undertaking to the effect has also been filed before this Court - However, the respondent has deliberately in its affidavit has combined the amount of M/s Himat Trading, M/s Action Industries and M/s Martiz Cera despite the fact that applicant is neither the proprietor nor the partner of M/s Himat Trading and M/s Action Industries - It is further submitted that no punishment has been prescribed Under Section 132 of the Act for tax evasion of amount of less than Rs. 1 Crore.

Held: [para 6 to 8]

+ As per the case of prosecution, false Input Tax Credit to the tune of Rs. 18.04 crores has been availed by the firms of the applicant, his brother and father on the strength of invoices supplied by Virat Dhanjibhai Bhatiya under the bogus firms.

+ However, so far as the present applicant is concerned, admittedly he is one of the partner in M/s Martiz Cera against which allegations of tax evasion are to the tune of Rs. 32 Lakhs.

+ So, far as other firms namely M/s Himat Trading and M/s Action Industries are concerned, same are respectively of the proprietorship of father and brother of the applicant.

+ However, apart from the merits of the case, applicant is ready and willing to deposit the amount of Rs. 32 Lakhs with the respondent within a period of four weeks from today so far as the liability respecting Martiz Cera is concerned. The applicant has further agreed to provide co-operation to the investigation /Intelligence Officers of the Department ongoing investigation against him.

+ In Abhinay Agrawal Vs. State of Gujarat, the Hon'ble High Court has granted bail to the applicant in similar type of case on deposit of amount of Rs. 1 Crore. Further, in Darshan Dinesh Patel Vs. Commissioner of Central Goods and Services Tax [ 2020-TIOL-994-HC-AHM-GST ] , the bail was granted on deposit of Rs. 25 Lakh.

+ Keeping in view the orders passed by the Hon'ble High Court in other matters in similar circumstances, I deem it fit to exercise discretion in favour of the applicant for grant of bail under section 438 of CrPC .

+ In case the applicant herein is arrested, Applicant shall be released on bail on furnishing a personal bond of Rs. 15,000/- with a surety of like amount subject to conditions as specified.

- Application allowed: RAJKOT HIGH COURT

2021-TIOL-1520-HC-DEL-GST

RM Enterprises Vs CC

GST - Writ petition has been filed seeking a direction to the Respondents to open the common portal for the Petitioner to enable him to file TRAN-1 and TRAN- 2 electronically or in the alternative, manually, so as to enable the Petitioner to avail the transitional credit of Rs. 25,88,581/- in its electronic credit ledger.

Held: Notice issued – Matter listed on 31st August, 2021.

- Matter listed: DELHI HIGH COURT

2021-TIOL-1519-HC-DEL-GST

Puri Construction Pvt Ltd Vs UoI

GST - Anti-Profiteering - Petitioner inter alia submits that though the complaint was filed by a flat buyer of Aman Vilas project, the DGAP has asked the petitioner to furnish information with regard to all other projects being undertaken by the petitioner.

Held: Notice issued - Till the next date of hearing, the respondents shall confine their inquiry to Aman Vilas project and NAPA is directed not to pass any final order - Matter listed on 10th November, 2021: High Court

- Matter listed: DELHI HIGH COURT

2021-TIOL-1518-HC-DEL-GST

Khemka Marketing Vs UoI

GST - Writ petition has been filed seeking a direction to the Respondents to open the common portal for the Petitioner to enable him to file TRAN-1 and TRAN- 2 electronically or in the alternative, manually, so as to enable the Petitioner to avail the transitional credit of Rs. 25,88,581/- in its electronic credit ledger.

Held : Notice issued – Matter listed on 31st August, 2021.

- Matter listed: DELHI HIGH COURT

2021-TIOL-406-CESTAT-BANG

Eygbs India LLP Vs CCT

ST - Assessee is in appeal against impugned order wherein their refund claim was rejected on the grounds that they had violated the conditions of SEZ Notification No. 12/2013-S.T. - The appellant has SEZ units as well as DTA units and had centralized Service Tax registration at Bangalore - The present refund application pertains to only SEZ units and is not connected with DTA units whereas the Commissioner (Appeals) in impugned order has wrongly come to the finding that the appellant has filed refund claim application for input services which have also been used in DTA units - For each violation alleged by Revenue, appellant have produced documentary proof in the form of invoices, bank statements and other records but the same has not been considered by the authorities below - Since those documents and statements have not been considered in impugned order by Commissioner (Appeals) and the Commissioner (Appeals) has come to the finding which is not based on verification of documents - Matter is remanded to the original authority with a direction to consider the statements, invoices and documents produced by appellant in support of his claim and thereafter decide the refund application by passing a reasoned order: CESTAT

- Matter remanded: BANGALORE CESTAT

2021-TIOL-405-CESTAT-KOL

Castrol India Ltd Vs CCGST & CX

CX - The allegation against appellant is that they had not maintained separate accounts under Rule 6(2) of Cenvat Credit Rules and had not exercised the option to reverse credit as provided under Rule 6(3) - In the SCN itself, it is noted that the appellant has reversed credit in proportion to the credit availed in respect of trading activity/traded goods - In view of the decision in case of Dalmia Bharat Sugar & Industries Ltd. 2017-TIOL-113-CESTAT-DEL , the demand cannot sustain and requires to be set aside - The appellant has also argued on the ground of limitation - They have been issued SCNs for earlier periods on identical issue - They had submitted all the documents called for by department and no evidence found to saddle the appellant with willful suppression of facts with intention to evade payment of duty - It is also noted that the jurisdictional Commissioner had passed an order holding that the credit was to be reversed based on proportionate value of traded goods - Based on the said order, appellant had been reversing the credit availed on common input services and informed the department whenever the details were asked for - Thus, the department was fully aware that the appellant was conducting trading activity - Therefore, the demand raised invoking extended period is without any factual or legal basis - Impugned order is set aside both on merits as well as on limitation: CESTAT

- Appeal allowed: KOLKATA CESTAT

2021-TIOL-404-CESTAT-AHM

Suchi Fasteners Pvt Ltd Vs CCE & ST

Cus - The appellant has claimed refund along with interest for Excess BCD duty and excess SAD paid at the time of clearance of "Stainless Steel Scrap" from SEZ unit to DTA, which has been rejected on two grounds, i.e., eligibility to refund and no powers under SEZ Act - The view that no provisions exist in SEZ Act for grant of refund is incorrect - Findings for rejecting BCD refund are not correct and justified, as such "Stainless Steel Scrap" cleared from SEZ to DTA can be used only after melting it first, for manufacturing goods like Valve & Pumps Parts and investment casting product with help of using furnace in factory - Regarding 4% SAD claim, the Notification No. 45/2005-Cus. provided Exemption from Additional duty of Customs, leviable under Section 3(5) of Customs Tariff Act, 1975, to all the goods produced in SEZ unit and cleared to any other place in India [DTA] without any condition - Exemption of SAD was available to appellant - The said Exemption claimed under Notification No. 45/2005-Cus. has not been objected by Revenue in respect of remaining Bills of Entry - Thus, findings given by Commissioner (Appeals) for rejecting both BCD and SAD Refunds are not sustainable and the same are over ruled - Refund claims were filed in permitted time-limit of one year - This is clear from the fact that section 27 amended w.e.f. 08-04-2011 has substituted the period of Six months to One year - As regards to "Unjust enrichment", appellant had submitted relevant documents supported by certificate from Chartered Accountant indicated and established that incidence of excess duty paid was not recovered from any other person - These documents are adequate to pass the hurdle of "unjust enrichment" - Appellant is eligible for BCD and SAD Refund - Appellant is also eligible for Interest u/s 27A of Customs Act, 1962 read with the decision in case of NEW KAMAL 2020-TIOL-948-HC-AHM-CUS which has allowed interest @ 6 %: CESTAT

- Appeal allowed: AHMEDABAD CESTAT