2021-TIOL-1650-HC-MAD-GST

PMP Steels Vs Asstt. Commissioner (ST)

GST - Challenge is to three orders of assessment for the periods 2017-18, 2018-19 and 2019-20 passed in terms of the provisions of the Act, 2017.

Held: Challenge to these orders is covered by the view taken by the Bench in W.P.No. 10489 of 2021 (order dated 27.04.2021) = 2021-TIOL-1052-HC-MAD-GST , wherein the impugned order was set aside and the respondent was directed to supply to the petitioner, the statement and other particulars relied upon by the Officer in the impugned order of assessment within a period of three weeks and thereafter, the petitioner was required to be afforded an opportunity of hearing to put forth its submission and also file objections and upon consideration thereof, a speaking order was required to be passed within a period of six weeks – same order passed in the present cases as well - Writ Petitions are disposed of : High Court [para 3, 5, 6]

- Petitions disposed of: MADRAS HIGH COURT

2021-TIOL-182-AAR-GST

Man Energy Solutions India Pvt Ltd

GST - Marine diesel engine and parts thereof will be covered under Sr. No. 252 of Notification No. 1/2017- C.T.(Rate) and attract GST @5% only when used in the manufacture of goods falling under 8901, 8902, 8904, 8905, 8906, 8907 and supplied only to ship building companies/shipyards or Indian Navy - Items which do not conform to "parts of marine diesel engines" will not be covered under the said Sr. No. 252: AAR

- Application disposed of: AAR

2021-TIOL-181-AAR-GST

KLF Nirmal Industries Pvt Ltd

2021-TIOL-180-AAR-GST

Indian Institute of Management

GST - Ruling can be sought by recipient of a supply, who are made liable to pay tax under Section 9(3) only with regard to determination of their liability to pay or not and such recipients cannot seek ruling on the applicability of an exemption notification/preferential rates on such supplies received by them: AAR

GST - Indian Institute of Management, Tiruchirappalli (IIM) is a Government Entity; is liable to deduct tax at source (TDS) under Section 51 of the CGST Act, 2017 read with Notification No. 50/2018-C.T ; is required to discharge Liability on reverse charge basis on supply of services as per Section 9(3) of the CGST Act, 2017, in respect of Legal services received by them: AAR

- Application disposed of: AAR

2021-TIOL-1649-HC-MAD-MISC

K Dhanush Vs State of Tamilnadu

Entry tax - Petition is filed to issue a mandamus forbearing the respondents and their subordinates from demanding or collecting Entry Tax in respect of the petitioner's Imported ROLLS ROYCE GHOST - Petitioner states that he has paid the customs duty and, therefore, no further tax is to be levied; that the goods that are manufactured in India suffers payment of Excise Duty and the goods that are imported suffers Customs Duty.

Held:

+ Issue raised in the present writ petition is no more res integra. The Supreme Court of India in the case of State of Kerala v. Fr.William Fernandez, = 2017-TIOL-380-SC-MISC , (followed by Division Bench in V.Krishnamurthy Vs. State of Tamil Nadu and Others) has held as follows:

"No court can compel the Government to exercise its power to examine or for that matter to grant administrative waiver. It is a policy decision to be taken by the Government and it is not for the Court to dictate as to whether or not the Government should exercise such power. The law on the subject as decided by this Court as early as September 1, 1999 holds that the entry tax is leviable on imported vehicles. Therefore, the submission that the matter should be relegated to the Government for grant of administrative waiver is not tenable."

+ The rich, affluent and reputed persons are importing vehicle from other countries. The writ petitions are filed seeking injunction forbearing the respondents from demanding Entry Tax by the State. By virtue of interim orders passed in the writ petitions, they have registered the vehicle and plying the same using the roads within the State of Tamil Nadu. However, the Entry Taxes are not paid so far. [para 6]

+ Undoubtedly, the State suffers huge revenue loss for many number of years, as these tax dues are not collected on account of the interim orders granted and due to pendency of the writ petitions. [para 8]

+ Every citizen of this great nation has a right to seek constitutional remedy. But if any litigation is instituted, then the responsibility lies that the matter is to be pursued and in the event of finality of the disputed issues, actions are to be taken even on pending cases. It is not as if a litigant can file a case and leave as it is and avoid payment of taxes, even after finality in respect of disputes. [para 9]

+ Large number of unnecessary writ petitions are pending before the High Court either due to the non-cooperation of the litigants or on account of the fact that the interim orders are granted and such interim orders are being utilized for unjust gains. Cars imported several years back are plying on the roads within the State without paying Entry Tax. Ultimate revenue loss undoubtedly would affect the public interest. Thus, this Court is of the opinion that the constitutional perspectives and the manner in which the writ petitions are filed are to be dealt with for the interest of protecting the rights of the citizens, who are all approaching this Court for redressal of their genuine grievance. [para 10]

+ Petitioner has not shown his identity by mentioning his profession and other connected details and simply stated that petitioner has purchased a ROLLS ROYCE GHOST FK42 RHD, Diamond Colour car of United Kingdom origin and the port of loading was London. Thus, the petitioner has suppressed his identity by not revealing his profession and, therefore, it has to be construed that the writ petition is filed without furnishing the requisite details, amounts to suppression of facts. [para 13]

+ Memo filed by the petitioner states that he had already paid 50% of the Entry Tax as per the interim order passed by this Court in the year 2015 and remaining 50% will be paid by the petitioner within seven days from the date of receipt of demand notice from the 3rd respondent. [para 15]

+ Citizens of this great nation are to be reminded of their fundamental duties in order to avoid unnecessary ligations before the High Courts, which would not only cause overburdening, but the redressal of the grievance of the genuine litigants are being affected. [para 16]

+ Court is of the considered view that it is the constitutional duty of the High Court to contribute for the development of the constitutional principles as the Indian Constitution is not a mere law but a visionary document. The 'Obiter dicta' offered in various judgments become law for the purpose of development and to make the constitutional rights more vibrant to reach the constitutional goals. Therefore, the petitioner cannot say that his case is to be dismissed in a simple manner, by way of allowing the withdrawal of the writ petition, or by dismissing on the ground that the issues have already been settled. [para 21]

+ The respondents have informed this Court that the balance arrears of Entry Tax to be paid by the petitioner is Rs.30,30,757.00. [para 23]

+ Court is inclined to pass the following orders:

i. the relief as sought for in this writ petition stands rejected.

ii. The petitioner is directed to pay the balance arrears of Entry Tax of Rs.30,30,757.00, as demanded by the respondents, within a period of 48 hours.

iii. The Registry, High Court Madras, is directed to ensure that affidavits filed by the litigants in writ petitions are entertained on compliance of the requirements as contemplated under The Madras High Court Writ Rules, 2021. In the event of any lapses, negligence or dereliction on the part of the officials, the Registrar General, High Court, Madras, is directed to initiate appropriate action under the Service Rules in force.

+ Writ petition stands disposed of.

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1648-HC-KERALA-VAT

Kochi St Paul Society Vs State Of Kerala

Whether imposition of penalty for failure to submit declaration in Form 8FA is sustainable where the statute makes an attempt to evade payment of tax as penal - YES: HC

- Revision petition partly allowed: KERALA HIGH COURT

2021-TIOL-1647-HC-MAD-VAT

Elgi Equipments Ltd Vs Deputy Commissioner (CT)

In writ, the High Court directs that the assessee file appeal against the assessment order, within a period of 30 days from date of receipt of copy of this order

- Writ petition disposed of: MADRAS HIGH COURT

2021-TIOL-1652-HC-MUM-ST

Prime Consultancy Vs UoI

ST - SVLDRS, 2019 - Petitioner's application/declaration under the Scheme was rejected by a remark "show cause notice issued after 30th June/1st July" - The petitioner has assailed such rejection in the present proceedings.

Held: On a reading of the impugned communication, it appears that the rejection is by a computer generated and/or a mechanical process by a remark that 'show cause notice issued after 30th June, 2019' - Certainly there is no application of mind on the petitioner's application on the provisions as made by clarificatory Circular No. 1074/07/2019-CX dated December 12, 2019, as no reasons are furnished as to why the petitioner's declaration cannot be entertained applying clause 2(viii) of the said Circular - It would be in the interest of justice that the Central Board of Indirect Tax and Customs, New Delhi should take a decision as to whether in the present facts, the petitioner is entitled to make a declaration and take benefit under the scheme - For taking such decision, the petition along with all the affidavits be treated as a representation, which be decided by the Board within a period of three weeks - Petition disposed of: High Court [para 12, 13]

- Petition disposed of: BOMBAY HIGH COURT

2021-TIOL-1651-HC-MAD-CUS

Gold Processors Vs CC

Cus - Petitions have been filed praying for quashing the impugned orders and directing the respondents to grant permission to shutout the cargo/taking back the cargo to their premises and to release the goods comprising of "Readymade Garments" presented for export without insisting for execution of Bank Guarantee for 25% of the value.

Held: Petitioner is not in a position to export the goods due to cancellation of the export order - The goods are berthed in Tuticorin Port and kept idle and because of that, the demurrage and container charges has been mounting heavily - Since the export order has been cancelled, the petitioner wants to take back the cargo to their premises, but the 3rd respondent is insisting the petitioner for bank guarantee for 25% of the value as security for provisional release of the goods - In the considered opinion of this Court, the question of providing bank guarantee does not arise, when the petitioner takes back the goods, due to cancellation of the export order - Communication dated 08.07.2021 is quashed and the respondents are directed to permit the petitioner to take back the cargo to their premises, comprising of "Readymade Garments" presented for the export vide Shipping Bills, all dated 15.04.2021, without insisting for Bank Guarantee, forthwith - Petitions disposed of: High Court [para 5 to 7]

- Petitions disposed of: MADRAS HIGH COURT

2021-TIOL-1643-HC-MUM-CUS

JD Diamonds Vs UoI

Cus - Provisional release - The petitioner complains that despite compliance of conditions contained in order of adjudicating authority, the relevant consignment is yet to be provisionally released - No reason found to keep the application pending in view of the order passed by adjudicating authority without any reservation - Once the reasoned order for provisional release has been passed in respect of relevant consignment under the provisions of Section 110A of Customs Act, 1962 and the conditions for such provisional release have been complied with by the petitioner, the court fail to comprehend as to how such an administrative order could be cited as a precedent in future cases so as to preclude the court from making an order as prayed for in the interim application - Respondents are directed to effect provisional release of relevant consignment within ten days: HC

- Interim application disposed of: BOMBAY HIGH COURT

2021-TIOL-456-CESTAT-BANG

Abb Ltd Vs CCE, C & ST

ST - The appellant is engaged in supply, erection and installation of electrical equipment to various agencies - For undertaking said projects, appellant used various goods manufactured as well as imported and locally procured - The appellant received various input services like catering service, courier service, event management, house keeping and manpower recruitment and availed CENVAT credit of input services under provisions of Cenvat Credit Rules, 2004 - A SCN was issued requiring the appellant to show cause as to why credit availed on input services pertaining to trading will not be available as per Rule 6 of Cenvat Credit Rules, 2004 - The appellant has regularly filed half-yearly service tax Returns in Form ST-3 with the Department during relevant period - On the issue of invoking extended period of limitation, Tribunal for subsequent period has allowed the appeals of appellant on the ground of limitation by holding that extended period cannot be invoked when there is no suppression of fact with intent to evade duty - Since the appellant has only confined his arguments on limitation and has not pressed on merit, hence findings restricted with regard to limitation alone - Since there was no wrong utilization of CENVAT credit and appellant has reversed the proportionate credit attributable to trading prior to its utilization and therefore the demand of interest and imposition of penalty is not sustainable - During the relevant time, there was confusion regarding said issue and appellant had a bona fide belief that CENVAT credit on input service is eligible hence the extended period of limitation cannot be invoked in view of decision in case of Shriram Value Services Pvt. Ltd 2020-TIOL-266-HC-MAD-CX - The demand of CENVAT credit can only be made with regard to normal period - Similarly interest and penalty are not to be demanded as the appellant had reversed credit before utilization - Matter remanded to the Original Authority for quantification of demand for normal period: CESTAT

- Appeal partly allowed: BANGALORE CESTAT

2021-TIOL-455-CESTAT-DEL

Dalas Biotech Ltd Vs CCE & CGST

CX - The appellant is engaged in manufacture of organic compound and enzymes - During audit, the Department observed that the chemical sent for job work was short received from their job worker - The quantity of process loss, i.e., the quantity of waste/scrap unrecoverable was also found missing from either job Challan or in the job register maintained for the purpose - The said amount of excise duty has accordingly been alleged to have not been paid in contravention to the provisions of Rule 4(5) of Cenvat Credit Rules, 2002 - It is clear that the appellant who is manufacturer of organic compound anti-biotic, precisely the inputs used by him is HMDS while processing such inputs, the appellant not only gets the final product, the anti-biotic but also gets a by-product/waste called HMDSO - There is no denial to the fact that it is the by-product/waste (HMDSO) which has emerged with the final product of the appellant from the inputs HMDS is sent to the job worker for the reason that this by-product has a potential of releasing the inputs, i.e., HMDS by further recovery process as 75% of such HMDS is still contained in the said by-product, i.e., HMDSO - This perusal is sufficient to hold that Rule 4(5) of Cenvat Credit Rules is not applicable - Because what has been sent to the job worker is not the inputs as such, but the by-product emerging along with final product - The report on record is sufficient to show that the said by-product still has potential of releasing 75% of HMDS, the input - Rest 25% is an absolute waste namely, toluene which is of no relevance to the appellant and thus is not returned to the appellant - There is no rebuttal of the said test report - Hence, it is clear that there is no possibility of 100% reversal of HMDSO given to the job worker - There is no suppression on the part of appellant, so question of imposing penalty also does not arise - Impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT