2021-TIOL-1831-HC-GUW-GST

BMG Informatics Pvt Ltd Vs UoI

GST - Assessee had submitted a claim for a refund under FORM-GST-RFD-02 - Department had issued a show-cause notice dated 10.04.2020 that the assessee had misdeclared the amount of total turnover in Annexure-1 to the RFD-01 for the period October - December 2018 and, therefore, the refund claimed is liable to be rejected - Assistant Commissioner rejected the claim of the assessee for the refund made under Section 54(3)(ii) of the CGST Act of 2017 by concluding that the input and output supplies in the instant case being the same, though it may attract a different tax rate depending upon the class of buyer would not be covered under the provisions of Section 54(3)(ii) of the Act, 2017 - Reliance placed on paragraph 3.2 of the clarificatory circular No. 135/05/2020-GST - Joint Commissioner (Appeals) arrived at a conclusion that the Assistant Commissioner in the order dated 22.05.2020 had rejected the claim of refund of the assessee on a ground which was not incorporated in the show cause notice that was issued to the assessee, and, therefore, there was a violation of the principles of natural justice - Having set aside the order rejecting the claim of refund, the Joint Commissioner (Appeals) held that the assessee is entitled to the benefit of refund of duty under Section 54(3)(ii) of the CGST Act of 2017 . - Revenue is in appeal.

Held: By virtue of paragraph 3.2 of the circular No. 135/05/2020-GST dated 31.03.2020, Central Board of Indirect Tax and Customs had made a declaration that even though there may be different tax rates at different point of time i.e. it has to be understood that even for different tax rates for the input supplies and the output supplies, the refund provided under Section 54(3)(ii) would be inapplicable in cases where the input and output supplies are the same - Such declaration/provision/clarification by the Central Board of Indirect Tax and Customs in paragraph 3.2 of their circular No. 135/05/2020-GST dated 31.03.2020 appears to be in conflict and provides for the contrary to the provisions of Section 54(3)(ii) of the CGST Act of 2017 - In the instant case, the input supplies and the output supplies made by the petitioner assessee are not governed either by a nil rate of tax nor it is governed by fully exempted rate of tax and, therefore, the refund provided under Section 54(3)(ii) would be applicable in respect of the difference between the rate of tax of input supplies and the rate of tax on output supplies - In other words, the provisions for refund of the unutilized input tax credit under Section 54(3)(ii) of the CGST Act of 2017 would be applicable in case of the petitioner assessee - Bench finds that there is a conflict between the provisions of paragraph 3.2 of the circular No. 135/05/2020-GST dated 31.03.2020 with the provisions of Section 54(3)(ii) of the CGST Act of 2017 - Whenever there is a conflict between the provisions of a statutory Act and that of a notification or circular issued by an administrative authority, the provisions of the statutory Act would prevail over such conflicting provisions of a notification or a circular of an administrative authority - In view of the clear and unambiguous provisions of Section 54(3)(ii), provisions of paragraph 3.2 of the circular would have to be ignored - Rejection of the claim for refund by the petitioner assessee in the order dated 22.05.2020 of the Assistant Commissioner by referring to the provisions of paragraph 3.2 of the circular No. 135/05/2020-GST dated 31.03.2020 would be unsustainable in law - Reasoning given by the Joint Commissioner (Appeals) in the appellate order dated 29.10.2020 for reversing the order of rejection by the Assistant Commissioner would also be not sustainable - Consequently, both the orders i.e., dated 22.05.2020 of the Assistant Commissioner as well as the appellate order dated 29.10.2020 of the Joint Commissioner (Appeals) are set aside and the matter stands remanded back to the Assistant Commissioner, GST, Guwahati to consider the matter afresh and pass order within six weeks - In the instant case, when the provisions of Section 54(3)(ii) of the CGST Act of 2017 are unambiguous and explicitly clear in nature, there is no requirement of bringing in any uniformity in the implementation of the Act (by exercising the powers u/s 168(1) of the Act, 2017) and the provisions of Section 54(3)(ii) would have to be applied in the manner it is provided in the Act itself - Writ petitions stand disposed of: High Court [para 16, 18, 24, 26 to 33]

- Petitions disposed of: GAUHATI HIGH COURT

2021-TIOL-1830-HC-KAR-CUS

DHL Express India Pvt Ltd Vs CST

Cus - The appellant has carried out a shipment consignment on behalf of M/s. BEML - Duty of customs payable on transaction in question under the statute is Rs. 4,743/-, which has been admitted by respondent and on account of erroneous calculation, the duty has been paid in excess to the tune of Rs. 42,26,975/- - The Authorities have turned down the claim of appellant on the ground of limitation - The claim of appellant could have been corrected and the Tribunal has erred in observing that the payment of excess duty requires to be rectified under Section 154 of said Act of 1962 - The Authorities ought to have refunded the said excess amount to the appellant either upon their application or on an application made by importer - In the case of Mafatlal Industries Ltd. 2002-TIOL-54-SC-CX-CB , it has been held that in order to claim excess duty paid, which falls outside the purview of the said Act of 1962, the limitation provided under Section 27 is not applicable - When the customs duty is paid in excess, the department is liable to refund the same and the limitation provided under Section 27 of the said Act of 1962 will not be applicable - Therefore, the Tribunal has erred in law and fact, solely relying on Section 27 of the said Act of 1962 while dismissing the application of appellant - As already stated, the excess customs duty was paid mistakenly on account of certain error and the said mistake can be rectified under Section 154 as held by Bombay High Court in case of Keshari Steels 2003-TIOL-191-HC-MUM-CUS - The aforesaid judgment has been confirmed by Supreme Court - The appellant was not at fault in the matter at all - M/s. BEML was directed to file refund application at the first instance - If the department would have advised the appellant to file an application for refund, then there would not have been any delay - The appellant was running from pillar to post to get refund of the excess stamp duty and the department is certainly not entitled for retention of the excess amount: HC

- Appeal allowed: KARNATAKA HIGH COURT

2021-TIOL-1829-HC-MAD-CUS

CC Vs Yamuna Impex

Cus - Import of "Coated Paper Sheets" - Revenue has challenged the order dated 23 June 2021 wherein Writ Petition was allowed with a direction to the respondents to release the goods forthwith to the petitioner, by granting liberty to the parties, to adjudicate the matter in the manner known to law.

Held : In the counter affidavit filed by the respondent, they have specifically stated that the goods may be released as directed by the Division Bench in the Writ Appeals - Respondent further submits that they are willing to execute a bond for the value of goods and a bank guarantee towards security to an extent of 10% of the value of the goods - Bench is of the view that appellants/Revenue may be directed to release the goods on condition the respondent executes a bond for the value of the goods and bank guarantee to an extent of 10% of the value of the goods - Respondent shall complete their part of obligation within two weeks - Detention charges shall stand waived - Appeal disposed of: High Court [para 7]

- Appeal disposed of: MADRAS HIGH COURT

2021-TIOL-566-CESTAT-CHD

RD Contractors And Consultants Vs CCE & ST

ST - The appellant is in appeal against impugned order wherein, Commissioner (Appeals) has remanded matter back to the adjudicating authority for de novo adjudication - Dispute is regarding certain amounts where the appellant collected full tax from the service recipients instead of 50% of the tax and paid only 50% of the tax - Although SCN invoked the provisions of Section 73A of Finance Act, 1994, but adjudicating authority has not invoked the provisions of Section 73A ibid and the said findings of adjudicating authority have not been challenged by either of the side before any appellate authority - Therefore, the demand confirmed under Section 73 ibid of excess recoveries made by appellant on account of service tax cannot be demanded under Section 73 ibid - While adjudicating the matter, adjudicating authority chose the figures from Form 26-AS or Balance sheets, whichever is higher - As balance sheets' figures are certified by Chartered Accountant and the same are more authentic figures, therefore, service tax demand is to be computed on the basis of balance sheets figures - Accordingly, impugned order qua computation on the basis of balance sheets needs examination at the end of adjudicating authority - The activity as well as payment of service tax were in the knowledge of department, therefore, in the absence of any mala fides on the part of appellant, extended period of limitation is not invocable - Therefore, any demand pertaining to extended period of limitation is set aside - As extended period of limitation is not invokable, therefore, penalty is also not imposable on appellant: CESTAT

- Appeal partly allowed: CHANDIGARH CESTAT

2021-TIOL-565-CESTAT-MAD

Benchmark Eventss Vs CGST & CE

ST - Appellant have provided services under category of 'Event Management Services' but have not discharged service tax on such services even though service tax was collected by them from the customers - SCN was issued for the period 10.12.2008 to 20.08.2011 proposing to demand service tax along with interest and for imposing penalties - From verification of invoices, bank statements, it is revealed that the appellant has not included all the considerations collected from client in taxable value for the purposes of payment of service tax - On such score, no grounds found to interfere with liability to discharge service tax for the impugned period - Appellant has put forward the contention that they were not able to produce necessary documents at the time of adjudication so as to claim the input tax credit but they now have the documents for the year 2010-11 - Matter can be remanded for the limited purpose of looking into the claim of appellant with regard to input tax credit for the period 2010-2011 - In O-I-A, it is discussed that as per the proviso to Section 28(1) of Finance Act, 1994, only 50% of the service tax involved can be imposed as penalty if the details of transactions are available from the records - The said proviso was introduced on 08.04.2011 - The Commissioner (Appeals) did not extend this benefit on the ground that documents were not produced - If the appellant furnishes the document with regard to this period, the benefit of less penalty under the said proviso can be considered by adjudicating authority - The demand for the period upto 2009-2010 is upheld - The demand confirmed for the period after 1.4.2010 till 20.08.2011 is remanded to the adjudicating authority who shall re-determine the liability after taking into consideration the claim of appellant with regard to input tax credit - So also, the benefit of imposing lesser penalty as per proviso to Section 28(1) of Finance Act, 1994 can be extended to appellant, if eligible: CESTAT

- Appeal partly remanded: CHENNAI CESTAT

2021-TIOL-564-CESTAT-MUM

Anil Polymers Pvt Ltd Vs CCE

CX - The appellant challenged the impugned order on two counts; firstly, that the refund order was never reviewed and appealed by Revenue and therefore the refund cannot be demanded/recovered under Section 11A of Central Excise Act, 1944 - Secondly, that the O-I-O was decided after the lapse of 13 years which itself is illegal - As regards to the issue of delay in adjudicating SCN, since this is legal issue therefore, it is permitted to be taken at any stage - Insofar as SCN is concerned, same has been issued under Section 11A ibid on 18.8.2004 but it was adjudicated vide O-I-O dated 28.3.2017 - According to appellant, SCN was decided by O-I-O dated 28.3.2017 but the same was handed over to the appellants only on 21.9.2017 - Although in his submissions, revenue tried to justify the delay in passing adjudicating order but there was not a whisper about it in Adjudicating Order or in the impugned order - The Adjudicating Authority only mentioned that the personal hearing was held on 14.3.2017, without mentioning anywhere that due to the pendency of department's appeal before the Court the hearing of SCN was delayed - He did not even find it necessary to mention the date of order of High Court by which department's appeal was dismissed - From the case records, it is not clear, whether any intimation was given to appellants that the SCN is being kept pending awaiting a final decision of High Court in the appeal filed by Revenue from the order of Tribunal - It is settled legal position that inordinate delay in adjudication results into denial of principles of natural justice - Appellant cannot be blamed for delay as they had never delayed the proceedings - The act on the part of Revenue of keeping SCN pending for unduly long period is arbitrary and it would vitiate the entire proceedings - Appeal deserves to be succeeded on this ground itself: CESTAT

- Appeal allowed: MUMBAI CESTAT

2021-TIOL-563-CESTAT-MAD

JU Pesticides And Chemicals Pvt Ltd Vs CCE

CX - The appellant filed a refund claim relating to the accumulated CENVAT Credit lying unutilized in their CENVAT account on account of closing down of their manufacturing operations - A SCN was issued proposing denial of refund inter alia on the ground that the reasons for claiming refund of accumulated credit was not covered under any category falling under provisions of Section 11B of Central Excise Act, 1944 r/w Rule 5 of Cenvat Credit Rules, 2004 - Rule 5 ibid does not specifically prohibit refund when a unit closes down; so, what is not there can never be read into a provision while strictly adhering to the legislative intention as to not read something into a provision - Hence, the legislative intention cannot be applied to the advantage of Revenue especially when the tax suffered amount in form of CENVAT Credit is lying with the Revenue - The authority to collect tax has to be applied in entirety, keeping in mind also the proviso to sub-section (2) to Section 11B ibid - When the Constitution mandates that there shall not be any collection of tax without the authority of law, there cannot also be the retention of tax by Revenue without the authority of law, which means that having rejected the refund claim, there should be a mention about the credit of same to the Fund subject to satisfaction of unjust enrichment, which is apparently lacking, from a perusal of both the O-I-O as well as the impugned O-I-A - The lis in the case on hand has already been settled by High Court in M/s. Welcure Drugs & Pharmaceuticals Ltd. 2018-TIOL-380-HC-RAJ-CX and hence, the denial of refund being incorrect, cannot be sustained: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-562-CESTAT-MAD

C Magudapathy Vs CC

Cus - The proceedings are initiated from SCN issued by D.R.I. - The Supreme Court in the case of Canon India Pvt. Ltd. 2021-TIOL-123-SC-CUS-LB has held that D.R.I officer is not proper officer within the meaning of Section 28(4) read with Section 2(34) of Customs Act, 1962 - Though the Revenue has filed a review application against said judgement, it is noted that as per the recent decision of Apex court in case of Agarwal Metals and Alloys , Apex Court has dismissed the appeal filed by department following the decision in the case of Canon India Pvt. Ltd. - Following the same, demand raised cannot sustain as SCN is vitiated being without jurisdiction to issue the same - Penalty also cannot sustain - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT