2021-TIOL-1661-HC-MP-GST

Maa Sharda Construction Company Vs UoI

2021-TIOL-1660-HC-GUW-GST

Subhash Kumar Singh Vs State of Assam

GST - Application has been filed u/s 439 of the CrPC seeking bail of the accused petitioner in connection with the offence registered u/s 132(1)(i) of the Assam GST Act, 2017 - Allegation is that the petitioner has deliberately supplied goods without issue of invoices in violation of the provisions of the AGST Act, 2017 with intention to evade Tax and Cess; that the total evasion detected is Rs.22,77,13,211/- inclusive of tax, cess, penalty and interest. 

Held: Provisions of section 69 of the AGST Act are absolutely clear and unambiguous which provides that during the course of inspection, search and seizure when the Commissioner has reason to believe that the person has committed any offence as per the clauses (a), (b), (c) or (d) of the sub-section(1) of section 132 of the AGST Act, which is punishable under the clause(i) or clause (ii) of the sub-section (1) or the sub-section (2) of the section 132 of the AGST Act, then he may pass an order authorizing an officer of the department to arrest such person - Thereafter, if the offence falls under the category of cognizable and non-bailable offence as per the sub-section (5) of the section 132, then sub-section (2) of section 69 casts duty upon the officer authorized to arrest such person and to inform such person of the grounds of arrest and produce him before the Magistrate within twenty-four hours; whereas if the offence is non-cognizable and bailable as per the sub-section(4) of the section 132 then subject to the relevant provisions of the Code, the clauses (a) and (b) of the subsection (3) of section 69 provides for enlarging such person on bail by the  officer concerned i.e. Deputy Commissioner or Assistant Commissioner exercising the same powers and be subjected to the same provisions as an officer-in-charge of a police station as held in Vimal  Yashwantgiri Goswami vs. State of Gujarat - It is necessary to keep in mind that section 69 of the AGST Act falls under the Chapter XII which provides for inspection, search, seizure and arrest which are in nature of measures prescribed under the provisions of the AGST Act to find out the evasion of tax, if any, by any person - On the other hand, section 132 of the AGST Act prescribes punishment for certain offences falling under Chapter XIX which provides for the offences and penalties - Thus, Section 132 of the AGST Act is enacted by the legislature prescribing punishment for the offences committed by an assessee either upon adjudication and assessment proceedings having been completed or otherwise as per the clauses (a) to (l) of the sub-section (1) of the section 132 of the AGST Act - Therefore, section 69 and section 132 of the AGST Act operate in totally different fields and the attempt on the part of the petitioners to canvass that unless and until adjudication proceedings of the assessment determining the tax and penalty liability is completed by the department as provided under Chapter VIII of the AGST Act, the Commissioner cannot form any opinion to “reason to believe” that the assessee has committed any offence, is contrary to the entire scheme of the AGST Act - It has been, prima facie , found that the evasion of tax was more than Rs. 5 crores which necessitated the arrest of the Petitioner in compliance of the provision of Section 132 (1)(i) of the Assam GST Act, 2017, hence, the argument put forth by the Petitioner that the arrest of the Petitioner is illegal and arbitrary is devoid of any merit - The investigation of the case is still continuing in order to ascertain the location of the godown and to examine other related witnesses and also for calculation of interest which keeps varying from time to time - Moreover, if the Petitioner is enlarged on bail at this stage, he is more than likely to hamper the investigation and/or tamper evidence which may likely to compromise with the entire investigation - Court is not inclined to grant bail to the Petitioner, at this stage - Prayer for bail of the Petitioner stands  rejected: High Court  [para 33 to 35, 38]

- Petition disposed of: GAUHATI HIGH COURT

2021-TIOL-185-AAR-GST

Kasipalayam Common Effluent Treatment Plant Pvt Ltd

GST -   Applicant is an effluent treatment plant promoted by the dyeing units - They plan to buy the effluents from the dyeing units and which will be delivered from the dyeing units to them through pipelines - They have contract with member units for minimum quantity of effluent to be supplied and may charge a fee if the said quantity is not achieved - Since there are no comparable price for purchase of effluents, net realizable value method is adopted - The effluent will be processed at the plant and the resulting products namely, water, sulphate solution and brine solution will be sold at market rates - The delivery will be made either through pipelines/ lorry -  applicant has sought a ruling on the following questions viz. (1) Whether the classification of the supply of outputs as sale of goods is correct. (2) Whether classification of water sold as Water (other than aerated, mineral, purified, distilled, medicinal, ionic, battery, de-mineralized and water solid in sealed container) under Heading 2201 is correct. (3) Whether classification of effluent purchased from dyeing as Other wastes from chemical or allied industries (3825 69 00) is correct; (4) Whether the method of arriving value for effluent using the net realisation price method is correct as there are no comparable products and cost cannot be worked out. 

Held:   It is evident that the applicant proposes to purchase the 'Raw effluents', treat them on their own account and sell the resultant products at market rates - Therefore, in this modus of operation, the classification of the supply of outputs as sale of 'goods' is correct - The recovered, reusable water obtained by the process of Reverse Osmosis is sold for Industrial process utilisation - The water is partly de-mineralised in nature, therefore, while the CTH applicable is 2201 as stated by the applicant, the Description of the product does not fit the 'Description of Goods' viz. 'Water (other than aerated, mineral, purified, distilled, medicinal, ionic, battery, de-mineralised and water sold in sealed container)' given under Sl.No.99 of Notification No. 02/2017-C. T. (Rate) - The product is, therefore, appropriately covered by Sl.No. 24 of Annexure- III of Notification No. 01/2017-C.T.(Rate) and attracts GST @18%: AAR

GST - Insofar as the ruling sought on the classification of 'Raw effluent' and the value to be adopted for purchase of Raw effluent, the same are not answered in view of the fact that t he questions are raised as recipient of the goods and not supplier of such goods - Accordingly, these questions are not liable for admission: AAR

- Application disposed of: AAR

2021-TIOL-1662-HC-MP-CUS

Prakash Sankhla @ Prakash Jain Vs DRI

2021-TIOL-207-SC-CUS

Indian Solar Manufacturers Association Vs Solar Power Developers Association

Cus - Anti-dumping - Recalcitrant attitude of the Government in not appointing High Court Judges for years together even where the recommendations have been cleared by the Collegium -All that the High Court has done is to issue notice in the writ petition and the interlocutory applications calling upon the parties to file responses - This can hardly be a stage of a proceeding where the Supreme Court of the country should be asked to step in - High Court does not find it feasible to accommodate such matters at an early date - This is the direct result of there being inadequacies of the number of High Court Judges including in the capital of the Country where the Delhi High Court is located - If there is some element of loss being caused by the inability of the judicial institution to take up matters, this is a direct consequence of there being inadequate number of Judges - Delhi High Court will be with less than 50% Judges in a week's time having only 29 Judges out of a strength of 60 Judges while two decades back when one of us (Hon'ble Mr. Justice Sanjay Kishan Kaul) was appointed as a Judge it was as the 32nd Judge of Court whereas the strength was 33 Judges - Government must realize that early adjudication of commercial disputes is the necessity for which there has to be adequate number of Judges which in turn would require them to follow the timelines said down in M/s. PLR Projects Pvt. Ltd. - On one hand, the Government does not deem it expedient to even file the counter affidavits while it has the ability to draw the special leave petitions and file the same before this Court - Special leave petitions dismissed: Supreme Court

- Petitions dismissed: SUPREME COURT OF INDIA

2021-TIOL-1663-HC-MAD-SERVICE

Aniruthan Vs UoI

Service Matter - The present petition was filed to challenge the validity of the Tribunal, Appellate Tribunal and Other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules 2017 which had already been struck down by the Supreme Court in Rojer Mathew vs. South Indian Bank Ltd., - The petitioner claimed that the judgment in Rojer Matthew would not be of benefit to the respondents 4 & 5 herein inasmuch as those interim orders were only applicable to appointments made when the writ petitions that were disposed of in Rojer Mathew were pending - Hence the petitioner claimed that appointments made on 22.01.2020 would not be saved by the interim orders passed in Rojer Mathew .

Held - Interim orders passed in Rojer Matthew would apply to all appointments made prior to 2020 Rules - In all such cases, the Supreme Court mandated that the governing statute and Rules framed thereunder would be applicable until the 2020 Rules came into effect - Hence the present appointment made on 22.01.2020 is squarely covered under the SC's interim order & dictum: HC

+ The appointments made on 22.01.2020 should be tested against the dictum of the Supreme Court in Rojer Mathew and Madras Bar Association-II, which were adverted to above. Upon perusal of the minutes of the Search-cum-Selection Committee meeting on 08.04.2019, it is clear that the Search-cum-Selection Committee took into account the interim order of the Supreme Court dated 09.02.2018 in W.P.(C) 279/2018 (Kudraj Sandhu vs. Union of India) which was part of the Rojer Mathew batch, and proceeded to record that the said interim order mandated that all appointments made pursuant to the selection by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Act and the Rules. Thus, it is evident that the interim Search-cum-Selection Committee acted strictly in accordance with the interim orders passed in Rojer Mathew as subsequently recorded in Madras Bar Association-II. (Para 6)

+ The principal objection of the petitioner is that these interim orders do not apply to an appointment made on 22.01.2020. In other words, the contention is that it could only apply to appointments made while Rojer Mathew was pending consideration before the Supreme Court. The express language of both paragraph 224 of Rojer Mathew and paragraphs 52 and 53 (xi) of Madras Bar Association-II indicate otherwise. Upon examining the aforesaid paragraphs, it leaves no room for doubt that the interim directions would apply to all appointments made prior to the 2020 Rules. In all such cases, the Supreme Court mandated that the governing statute and Rules framed thereunder would be applicable until the 2020 Rules came into effect. The present appointment made on 22.01.2020 is squarely covered by the Supreme Court's interim orders and dictum. The petitioner has completely failed to establish that the appointments are contrary to the relevant parent Act or the rules framed thereunder. (Para 7)

- Writ petition dismissed: MADRAS HIGH COURT