2021-TIOL-1549-HC-PATNA-GST

Associated Power Structures Pvt Ltd Vs State of Bihar

GST - Petitioner has sought quashing the SCN along with summary of SCN in form GST DRC-01 dated 14.02.2021 as well as summary of order in form GST DRC-07 dated 23.02.2021 issued for the period April 2020 to September 2020 without issuing the order u/s 73(9) of the Act, 2017 in violation of the principles of natural justice; directions to the respondents to stay the proceedings initiated by the respondent no.3 and further restrain respondents from resorting to any coercive measures against the petitioner; quashing of the rectification order dated 12.04.2021 along with summary of rectification order in form GST DRC-08 dated 12.04.2021 issued by respondent no.3 in violation of principles of natural justice -  Counsel for respondent revenue fairly states that the authority viz. respondent no.3 committed a mistake in passing the impugned order dated 14.02.2021 in form GST DRC-01 and summary of order dated 23.02.2021 in form GST DRC-07 and summary of rectification/withdrawal order dated 12.04.2021.

Held: Bench fails to understand as to why the officer did not apply his mind at the time of passing of the impugned order - It is only when this Court pointed out the difference, wide enough for anyone to notice in imposing the amount of penalty, did the officer realising his mistake, agreed to rectify the same - Bench cautions the officer to be careful in future and not commit such mistake again, for such type of mistake not only causes harassment to the parties but also shatters faith of the people in the system - Illustratively, as against the original demand of Rs.11 crores, the officer while reviewing his own order reduced it to 18 lacs and in another case from 8 crores to 2.8 crores - I mpugned order dated 14.02.2021 in form GST DRC-01 and summary of order dated 23.02.2021 in form GST DRC-07 and summary of rectification/withdrawal order dated 12.04.2021 are quashed with a direction to the assessing officer to pass a fresh order in terms of the provisions of the Rules, 2017 -  Petitioner undertakes to appear before the assessing authority on 9th August 2021, if possible through digital mode - Directions also ordered for de-freezing/de-attaching of the bank account(s) of the writ petitioner, if  attached in reference to the proceedings, the subject matter of present petition and to be done immediately - Petition disposed of: High Court

- Petition disposed of: PATNA HIGH COURT

2021-TIOL-1548-HC-DEL-GST

Ajanta Industries Vs CCGST

GST - Refund - Present writ petition has been filed challenging the rejection order dated 04th April 2021 passed by respondent no.2 in RFD-06.

Held: A perusal of the impugned order reveals that very serious findings of fake Input Tax Credit have been given by the respondent no. 2 in the impugned order - It is settled law that a petitioner who files a petition invoking the extra ordinary writ jurisdiction has to come to Court with clean hands - Further, a petitioner who seeks equity must do equity - In commercial/appellate jurisdiction, a Court may have to grant relief if all the ingredients of a statutory provision are satisfied - But this is not so in a writ jurisdiction where relief may be denied to a petitioner on the ground that he has not approached the Court with clean hands, even when he satisfies all the ingredients of a statutory provision - In the present case, none of the findings given in the impugned order like premises of the petitioner being found locked during inspection; the partner of the petitioner not responding to the Summons; and L1 & L2 suppliers having issued fake and bogus invoices and passed on fake Input Tax Credit, have been dealt with leave alone challenged - Consequently, Court is of the view that it would not be appropriate to entertain the present writ petition - Moreover, as the impugned order is an appealable order, present writ petition is dismissed: High Court [para 4, 5]

- Petition dismissed: DELHI HIGH COURT

2021-TIOL-176-AAR-GST

Global Gruh Udyog

GST - Applicant has sought classification of Puri Papad and un-fried papad (not served for consumption) such as Jeera papad, Red Chilli papad, Green Chilli papad, Rice papad, Paua papad, Udad papad, Mung papad and black pepper papad, all produced using the same machinery.

Held:   The subject goods are thin and wafer-like product - At this stage, the product is not ready for consumption - Traditionally Papad has been prepared manually, in round shape - However, when ingredients and process are similar to 'papad', then the product in question is nothing but a kind of 'papad' irrespective of their shape and size - For classification of product, the ingredient, uses and common parlance test is decisive factor and not the name - Due to advancement of technology, papad does not limit to the same age old traditional round shaped papad but can be in any desired shape and size - In the old era, usually 'papad' was manufactured manually, therefore, it was easy for them to manufacture the Round Shape papad - In the modern era, by the advent of technology, the product is being manufactured by machines and dies of different shape and size is used in the machine - Therefore, with the help of dies of various sizes and shapes, it is convenient to manufacture different shapes and sizes of papad - Further, at entry No. 96 of Notification No. 02/2017-CTR, the description of goods is 'Papad, by whatever name it is known, except when served for consumption' - Impugned goods are appropriately classifiable under HSN 1905 9040: AAR

- Application disposed of: AAR

2021-TIOL-203-SC-NDPS

Karikanka Durga Reddy Vs NCB

NDPS - Counsel for the appellant had pleaded that the principles laid down under Section 32(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for imposition of a sentence more than the minimum sentence had not been followed by the courts below - Appellant also refers to the decision in Gurdev Singh Vs. State of Punjab = 2021-TIOL-155-SC-NDPS mandating that the role assigned to the appellant must also be considered and not only the quantum of drugs.

Held: Quantum of the drugs found in this case is huge i.e. 2,611 kgs and which is hundred times more than the commercial quantity, as per the ASG - No doubt such huge quantity manifold the time of the commercial quantity would invite the maximum sentence - However, the redeeming factors in the case of the appellant with the role played by the appellant which was really giving wrong information in the greed of money - Appellant has already served more than 12½ years - In view of the aforesaid peculiar facts and circumstances, Bench considers it appropriate to reduce the sentence in the case of the appellant to the period undergone and allow the appeal to the limited extent aforesaid: Supreme Court

- Appeal disposed of: SUPREME COURT OF INDIA

2021-TIOL-1543-HC-MAD-ST

TM Hotels Pvt Ltd Vs Addl. CCE

ST - Petitioner challenges the order dated 10.04.2014 passed by the respondent - Petitioner submits that a vakalat nama was filed on 04.03.2014 and accordingly respondent ought to have sent summons/date of personal hearing to the counsel who entered appearance for the petitioner - However, the respondent sent summons to the petitioner directly and the petitioner was under the bonafide impression that the counsel will take care of the matter by appearing and defending their case - Nonetheless, counsel for the petitioner was not aware of the summons as well as the date of personal hearing and hence did not appear and which resulted in passing of the final order without providing opportunity to the petitioner - Counsel for respondent Revenue cites section 37C of the CEA, 1944 and submits that the summon admittedly was issued to the petitioner and it is his duty to inform the date of personal hearing to his counsel who is appearing in the matter and, therefore, the respondent cannot be faulted for the lapses committed by the petitioner; that the matter was adjourned thrice and the impugned order itself would reveal that personal hearing was provided on three occasions on 09.02.2014, 04.03.2014 and 25.03.2014 and the assessee did not turn up and, therefore, the competent authority passed the assessment order.

Held: There is a possibility that the petitioner would not have informed about the summons to their counsel regarding the personal hearing - Under those circumstances, the counsel was not aware of the date of personal hearing and the same resulted in passing of the final order without hearing the counsel who entered appearance on behalf of the writ petitioner - Court is of the opinion that the petitioner has to be provided with an opportunity of personal hearing for the purpose of submitting the judgments, documents and the grounds raised to defend their case - Impugned order is quashed and the matter is remanded back to the respondent for fresh consideration after providing an opportunity to the counsel who entered appearance on behalf of the petitioner and thereafter pass final orders on merits and in accordance with law as expeditiously as possible, within four months - Petition disposed of: High Court [para 7, 9]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-411-CESTAT-DEL

Shree Agarwal Stonex Vs CCGST

ST - The demand was proposed for GTA services availed by appellant in respect of carriage of marble blocks from the mines to their factory - The Adjudicating Authority observing that the appellant is manufacturer of marble slabs and tiles for which marble blocks are required - Observing that for transportation of goods, it is necessary that the goods are accompanying with proper transportation documents viz invoice, bill or a consignment note, he rejected the plea of appellant that there was no existence of 'goods transport agency' and confirmed the demand - There is no such provision in the scheme of Acts and Rules permitting assumption of facts to be made by Adjudicating Authority, without reference to the facts on record - The demand has been raised improperly as well as whimsically - Accordingly, the penalties imposed are also set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-410-CESTAT-DEL

Jai Balaji Industries Ltd Vs CCGST & CE

CX - The appellant is engaged in manufacture of Sponge Iron and M.S. Billets in two Divisions under common registration - It appeared to Revenue that the appellant was indulging in unaccounted production of finished goods and subsequent clandestine removal without cover of central excise invoice and without payment of duty - Accordingly, SCN was issued invoking the extended period of limitation - The method of stock verification adopted by Revenue in this case is not correct and free from error - Further, such stock taking is not provided under scheme of Central Excise Act read with the Rules - The appellant has given cogent explanation for apparent shortage which has not been found wrong by court below - Such apparent shortage is less than 1% in case of M.S. Billets and about 3% in case of Pig Iron, which is within the tolerance limit in this type of industry - Except the bald allegation made by Revenue of clandestine removal, there is no other allegation in SCN as regards the quantitative mismatch of input output ratio - Insignificant shortage in stock of raw materials and finished goods does not lead inevitable evidence of clandestine removal in absence of corroborative material on record - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT