2021-TIOL-1552-HC-DEL-GST

RJ Trading Company Vs CCGST

GST - Cigarettes - Gold Flake Super Star cigarettes - Petitioner seeks relief of setting aside and quashing the order of prohibition whereby goods inventoried in panchnama dated 05.03.2021 have been detained by respondent no. 5; to release the goods detained under the aforementioned prohibition order dated 05.03.2021; to declare the search conducted on the premises of RJT as illegal since it did not align with the provisions of Section 67 of the Act, 2017 ; to award costs.

Held:

+ Scope of the writ petition has been confined to the examination of the issue, as to whether, the authorization for conducting search and seizure at RJT's premises had been given bearing in mind, the pre-requisites provided in Section 67(2) of the CGST Act. [para 11]

+ Bench is of the opinion that the Additional Commissioner, CGST Delhi North Commissionerate exercised his powers for according authorization to conduct search and seizure, at RJT's premises, even though the jurisdictional ingredients were absent. The request of Joint Commissioner (AE), Gautam Budh Nagar conveyed through the communication dated 05.03.2021, was only to ascertain as to whether RJT, which was the L2 supplier of M/s Mridul Tobie Inc., was in existence. There was no independent application of mind by the Additional Commissioner, CGST Delhi North Commissionerate. [para 12]

+ The officers concerned should bear in mind that the search and seizure power conferred upon them, is an intrusive power, which needs to be wielded with utmost care and caution. The legislature has, therefore, consciously ring-fenced this power by inserting the controlling provision, i.e., "reasons to believe". [para 13]

+ Because Bench has concluded that the authorization accorded by the Additional Commissioner is legally untenable, this facet of the case [order of prohibition and seizure] need not be, dwelled upon any further. However, the respondents would do well, in future, to bear in mind that prescribed forms i.e. GST IN - 02 and GST IN - 03 are for guidance, and that necessary modification is made while passing orders depending upon who is conducting search and seizure. [para 14]

+ For the very same reason, the application filed on behalf of RJT [i.e. CM No. 16668/2021] which inter alia seeks a direction for setting aside the order dated 12.05.2021, directing the provisional release of goods, based on the terms contained therein, need not detain us. [para 15]

Conclusion:

+ Search and seizure conducted by CGST Delhi North Commissionerate are declared unlawful. Consequently, both the orders of seizure and prohibition dated 05.03.2021 are set aside.

+ Writ petition and pending applications are disposed of. There shall, however, be no order as to costs.

- Petition disposed of: DELHI HIGH COURT

2021-TIOL-1551-HC-DEL-GST

Koenig Sulutions Pvt Ltd Vs UoI

GST - Petition has been filed with inter alia the prayer that the Central Tax Officers (GST officer) (Respondents No. 2 and 3) have no jurisdiction over the Petitioner as the jurisdiction has been assigned to State Tax Officers in view of the decisions taken by the GST Council vide Circular No. 01/2017 dated 20.09.2017 - Respondent states that they have withdrawn and closed the inquiry proceedings initiated against the petitioner vide Impugned Summons dated 30.04.2021 - However, petitioner insists that the issue raised by him must be decided.

Held: Court is of the view that as the Impugned Summons have been withdrawn and the inquiry proceedings have been closed, the issue sought to be adjudicated upon by the petitioner cannot be decided in a vacuum - Consequently the present writ petition and application are disposed of leaving the aforesaid question of law open to be decided in the event a fresh proceeding is initiated or summons are issued to the petitioner by the Central Tax Officers (GST Officers): High Court [para 6]

- Petition disposed of: DELHI HIGH COURT

2021-TIOL-1550-HC-DEL-GST

Global Enterprises Vs UoI

GST - Petitioner challenges the orders dated 28th May, 2020 and 19th March, 2021 passed by Assistant Commissioner CGST Delhi East and the Joint Commissioner, Appeals - I, Central GST, Delhi respectively whereby the refund claim of the petitioner was rejected - Petitioner states that they were not heard by the appellate authority before passing the impugned order; that from the response to the RTI application given by the Department, it is apparent that the email regarding personal hearing was sent to the wrong email address.

Held: Counsel for respondent nos. 2 and 3 states that the contentions of petitioner is correct inasmuch as the notice was sent to the wrong email address - Consequently, the impugned order is set aside and the appeal is remanded back to the Joint Commissioner, Appeals - I, Central GST, Delhi for a de novo adjudication who shall decide the matter in accordance with law by way of a reasoned order after giving an opportunity of hearing to the petitioner - Writ petition stands disposed of: High Court

- Petition disposed of: DELHI HIGH COURT

2021-TIOL-1553-HC-DEL-ST

Tuli Motors Vs UoI

ST - Petitioner submits that the old assessments for the period 2015 to 2017 cannot be reopened in the year 2021; that after the repeal of the Chapter V of the Finance Act, 1994 by the Goods and Services Tax Act, 2017, there is no power to initiate any fresh proceeding under the repealed Act i.e. Chapter V of the Finance Act, 1994 - Petitioner challenges the show cause notice dated 19th April, 2021 and the impugned summons dated 10th October 2017 and 27th January 2021 as well as the consequential proceedings emanating therefrom - Counsel for Revenue submits that this Court in Vianaar Homes Private Limited = 2020-TIOL-1847-HC-DEL-ST has held that there is power to initiate fresh proceedings under Chapter V of the Finance Act, 1994 despite coming into force of the Goods and Services Tax Act, 2017.

Held: Keeping in view the aforesaid, it is directed that proceedings pursuant to the impugned Show Cause Notices and summons shall continue but the final orders shall not be given effect to till disposal of the writ petition - Accordingly, the CM APPL. 21306/2021 stands disposed of - Present petition to be listed along with WP(C) 8730/2013: High Court

- Petition disposed of: DELHI HIGH COURT

2021-TIOL-414-CESTAT-DEL

Glossy Colour And Paints Vs CCT

ST - Interest on refund - The issue is no longer res integra and in the case of J.K. Cement , the Tribunal following the ruling of Supreme Court in case of Sandvik Asia Pvt. Ltd. 2006-TIOL-07-SC-IT as well as of the Allahabad High Court in case of Hello Mineral Water (P) Ltd. 2004-TIOL-57-HC-ALL-CX held that interest is payable from the date of deposit till the date of grant of refund - Further, Division Bench of Tribunal in Parle Agro Ltd. 2017-TIOL-1406-CESTAT-ALL has held that interest is payable @ 12%, following the ruling of Supreme Court in the case of Sandvik Asia Ltd. - Accordingly, impugned order is set aside - The appellant is entitled for interest @ 12% p.a. from the date of deposit till the date of refund: CESTAT

- Appeal allowed: DELHI CESTAT

Petro Carbon And Chemicals Pvt Ltd Vs CCGST & CX

CX - The issue arises for consideration is, whether the appellant is entitled to Cenvat credit of Service Tax paid by it on the freight component in relation to transport of goods from non-taxable territory to India when as per the lower authorities the said service was exempted from levy of Service Tax during the period when such import of goods took place - The tax was paid and accordingly the appellant had availed Cenvat credit of the same - The issue is no longer res integra in view of judgment of Madras High court in case of TAMILNADU PETROPRODUCTS LTD. 2015-TIOL-2600-HC-MAD-CX - By respectfully following the same, it is held that the appellant cannot be asked to reverse the Cenvat credit availed on tax paid under Reverse Charge basis when the payment is not disputed - Thus, demand on said ground is set aside - Additionally, Revenue has not been able to prove beyond reasonable doubt, the presence of fraud, collusion, wilful misstatement or suppression of facts on the part of appellant - Therefore, imposition of penalty under section 11AC of Central Excise Act, 1944 is unwarranted: CESTAT

- Appeal allowed: KOLKATA CESTAT

Sattva Cfs And Logistics Pvt Ltd Vs CC

Cus - Penalty - The DRI had issued a SCN on the allegations of seizure of Red Sanders on seven noticees while the proposal against appellant was as to the levy of penalty under Section 114 of Customs Act, 1962 - The penalty levied is invalid, since the Notice issued by DRI is held to be invalid, by Supreme Court in the case of M/s. Canon India Private Limited 2021-TIOL-123-SC-CUS-LB - The Board had thereafter issued an Instruction No. 04/2021-Customs stating that the said instruction is issued specifically in respect of SCN against Shri Anil Aggarwal and 11 others and, in any case, the Instruction cannot override the decision of a three Judge Bench of Apex Court, which is binding as the law of the land - Clearly therefore, there was no jurisdiction with the DRI to issue SCN in question - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT