2021-TIOL-1589-HC-DEL-GST
Interglobe Aviation Ltd Vs UoI
GST - Petitioner is a scheduled Airline operator engaged in the business of transportation of passengers and goods by air within and outside India - Before the implementation of Goods and Services Tax Regime, Petitioner was re-importing Aircrafts and spare parts sent outside India for repairs and maintenance and was claiming exemptions from levy of BCD, CBD and SAD under various Notifications - A Notification bearing No. 50/2017-Cus. was issued by Respondent No.1 on 30.06.2017 providing a list of Goods which were exempted from levy of Customs Duty and IGST - Another Notification No. 45/2017 -Cus. was issued on the same date providing the list of Goods exempted from levy of BCD, IGST and Compensation Cess in case of re-import into India - According to the Petitioner, after implementation of GST, the Petitioner cleared the Goods re-imported into India between July 2017 till date by claiming exemptions under the said Notifications - The Authorities concerned allowed exemptions from levy of BCD but refused to do so with respect to IGST on the ground that IGST is leviable on fair cost of repairs and cost of insurance and freight in terms of Serial No. 2 of Notification No. 45/2017 -Cus - Though the Petitioner did not agree with the said stand, however, out of commercial sense, it cleared the Goods on payment of IGST, albeit under protest - Bills of Entry filed by the Petitioner were challenged before the Commissioner (Appeals). However, vide common orders dated 30.04.2019 (for 349 Bills of Entry) and 22.11.2019 (for 415 Bills of Entry), the appeals were rejected and levy of IGST was upheld - Vide order dated 02.11.2020, appeals with respect to 349 Bills of Entry were allowed by the CESTAT holding that IGST was not leviable on Goods reimported into India - Insofar as the appeals with respect to 415 Bills of Entry were concerned, the CESTAT vide its order dated 15.01.2021 allowed the appeal holding that IGST was not leviable on the Goods reimported into India and order of Commissioner (Appeals) was set aside - Petitioner, therefore, seeks appropriate directions to the Respondents to apply the observations and the findings in the final orders of the CESTAT dated 02.11.2020 and 15.01.2021 in respect of all consignments of the repaired Goods imported/to be imported by the Petitioner, to enable the Petitioner to clear the Goods without payment of IGST, thereby extending the benefit of exemption Notification dated 30.06.2017 bearing No. 45/2017 -Cus.
Held:
+ The primordial grievance of the Petitioner is that once the dispute pertaining to levy of IGST of the repaired goods re-imported into India stands decided by two orders of the CESTAT, there is no reason why the benefit of the Exemption Notification be not granted to the Petitioner on further re-imports and the Petitioner should not be subjected to the harassment of approaching the Courts and other Forums for the said purpose. [para 13]
+ CESTAT has passed two orders in favour of the Petitioner clearly holding that the Petitioner is entitled to the Exemption under the Notification, one with respect to 349 Bills of Entry and the other with respect to 415 Bills of Entry.
+ Once the legal issue stands adjudicated between the parties to the lis , we find no plausible or justifiable reason for compelling the Petitioner to approach the CESTAT or this Court to claim the benefit of the Exemption Notification for subsequent transactions. In fact, once the illegal action of the Respondents in depriving the Petitioner of the benefit of Exemption has been set aside by the CESTAT and the errors of law stand corrected, the action of the Respondents in once again placing a wrong interpretation on the Notification is completely unwarranted and certainly a harassment to the Petitioner. [para 14]
+ In view of the judgements of the Supreme Court and the Government's own Policies to reduce litigation, it is imperative that the Respondents keep in mind that if on similar facts or legal issues, decisions have already been rendered by the competent Courts or Tribunals, they must be followed by the Respondents in subsequent matters. It is unfair on the part of the respondents to relegate the citizens unnecessarily into litigation once the matter is covered by a judicial/quasi-judicial order. Relegating a party to approach Courts or Tribunals, again and again, for interpretation of provisions of any Act or Rules or Notifications, which stand interpreted in earlier judgements is not only victimisation to the litigant but also wastage of judicial time. Moreover, the judgments which are not stayed or overruled by the higher Forums are binding on the respondents and ought to be followed wherever applicable in the facts of a given case. [para 26]
+ This principle would apply with a greater vigour in the present case where the Respondents have not preferred an appeal against the earlier two decisions of the CESTAT. There is no justifiable reason for the Respondents to have compelled the Petitioner to file the present writ petition and in fact the Respondents should have on their own volition applied the judgements of the CESTAT to the subsequent Bills of Entry filed by the Petitioner. It would be a travesty of justice if despite two orders of CESTAT, each time a fresh Bill of Entry comes up for assessment by the Department, the concerned officer would attempt to give its own subjective interpretation to the Exemption Notification. Judgements are not mere ornaments and are meant to be followed in letter and spirit. [para 27]
+ If the facts are similar and there is a binding judgment in existence, it is bound to be followed by the officers of the Respondents. Even if officers of the Respondents keep changing, decision making process must be consistent and in accordance with binding judgements rendered by competent Courts or Tribunals. Consistency is the virtue of the adjudicating Authority.
+ Bench directs the Respondent Authority concerned to decide the representations preferred by the Petitioner, in accordance with law, rules, regulations and Government Policies and with due deference to the decisions rendered by the CESTAT, New Delhi dated 02.11.2020 as well as decision rendered by the CESTAT, New Delhi dated 15.01.2021. The representations shall be disposed as expeditiously as possible and practicable. [para 28]
- Petitions disposed of: DELHI HIGH COURT
2021-TIOL-1588-HC-KERALA-GST
Asstt.STO Vs VST And Sons Pvt Ltd
GST - Respondents had filed writ petition challenging the detention of the 'RANGE ROVER' motor vehicle belonging to the 2 nd respondent while being transported from Coimbatore to Thiruvananthapuram as 'used personal effect' of the 2nd respondent - The vehicle was detained on the allegation that the same was transported without the E-way bill as contemplated under Rule 138 of the Kerala GST Rules, 2017 - By the impugned judgment, the Single Judge allowed the writ petition and quashed Exts. P7 and P8 notices - And accordingly, the vehicle detained has been released - The Department is in appeal against this order.
Held: Goods that are classifiable as used personal and household effect falls under Rule 138(14)(a) of the Kerala Goods and Services Tax Rules, 2017 and are exempted from the requirement of e-way bill - The 2nd respondent had purchased the vehicle after payment of IGST - A temporary registration was also taken apart from the motor vehicle insurance. The vehicle was entrusted to the 2nd respondent to transport the vehicle from Coimbatore to Thiruvananthapuram instead of driving the same across the State borders - During transportation, the vehicle has detained for the reason of non-generation of e-way bill - In the decision in KUN Motor Company's case - 2018-TIOL-2925-HC-KERALA-GST , the Division Bench held that used vehicles, even if it has run only negligible distances are to be categorized as 'used personal effects' - In the present case, the vehicle had, in fact, run 43 kms - Bench is in respectful agreement with the observations of this Court in the aforesaid decision - The facts in the present appeal is similar, if not almost identical, to the facts in the above referred decision, except for the change in place from Puthuchery to Coimbatore - There is no merit in this Revenue appeal and the same is dismissed: High Court [para 5 to 7]
- Appeal dismissed: KERALA: HIGH COURT
2021-TIOL-178-AAR-GST
Chep India Pvt Ltd
GST - Applicant is involved in renting of re-usable unit load equipment for shared use and seeks advance ruling inter alia on the following - Whether the pallets, crates and containers (equipment) leased by CHEP India Private Limited (applicant) located and registered in Karnataka to its other GST registration located across India (say CIPL, Kerala) would be considered as lease transaction and accordingly taxable as supply of services in terms of Section 7 Act, 2017?; If the answer to Question 1 is yes, what is the value on which GST has to be charged i.e. whether it should be lease charges or the value of equipment in terms of Section 15 Act read with relevant Rules?; What are the documents that should accompany the movement of goods from CUPL, Karnataka to CIPL, Kerala?; Whether movement of equipment from CIPL, Kerala to CIPL, Tamil Nadu on the instruction of CIPL, Karnataka can be said to be mere movement of goods not amounting to a supply in terms of Section 7 of the CGST Act and KGST Act, and thereby not liable to GST?
Held:
(1) The pallets, crates and containers leased by CHEP India Private Limited located and registered in Karnataka to its other GST registration located across India (say CIPL, Kerala) would be considered as lease transaction if the specific goods are sent on lease as per the agreement between the two entities and accordingly taxable as supply of services in terms of the provisions of the Integrated Goods and Services Tax Act, 2017 read with Section 7 of the Central Goods and Services Tax Act, 2017 .
(2) The value declared in the invoice issued by the applicant would be the value on which GST has to be charged in terms of Section 15 of the CGST Act and KGST Act read with relevant Rules.
(3) The documents to be carried for the movement of goods from CIPL, Karnataka to CIPL, Kerala would be delivery note and e-way bill for the entire value of the goods transported.
(4) The movement of goods from CIPL, Kerala to CIPL, Tamil Nadu under the instruction of CIPL, Karnataka would be as a result of a separate transaction of supply between CIPL, Karnataka and CIPL, Tamil Nadu if the terms of the contract so state. But it would be a supply of CIPL, Kerala, if it is the agreement between CIPL, Kerala and CIPL, Tamil Nadu which causes the movement of goods from CIPL, Kerala to CIPL, Tamil Nadu. Further the services of CIPL, Kerala to CIPL, Karnataka in facilitating the transportation of goods to CIPL, Tamilnadu are exigible to GST.
(5) The documents to be carried for the above movement is a delivery note and e-way bill issued by CIPL, Karnataka if the movement is as a result of supply by CIPL, Karnataka or a delivery note and e-way bill issued by CIPL, Kerala if the movement is as a result of supply by CIPL, Kerala, differentiated as per (4) above.
- Application disposed of: AAR |
