I-T - Search assessment notice issued u/s 153C cannot be sustained where the assessee's objections to satisfaction notes, have not been considered on merits by the AO : HC

I-T - High Court can intervene against assessment orders where principles of natural justice are contravened : HC

I-T - assessment order passed without considering the assessee's reply to SCN cannot be sustained : HC

I-T- A ddition for unexplained cash credit u/s 68 can't be made merely because quantum of premium is high in absence of any supporting documents : ITAT

I-T - Additions framed in respect of unaccounted purchases merits being restricted to the profit element embedded therein : ITAT

I-T- Reassessment order passed based on seized documents of other assessees and incorrect interpretation of law is not sustainable: ITAT

I-T - Re-opening of assessment is unsustainable where mandatory notice u/s 143(2) of the Act has not been issued to the assessee : ITAT

I-T- Registered sale deed cannot be summarily dismissed as evidence when compare with oral statement of only one of parties to transaction, thus addition made on account of undisclosed capital gain on sale of land cannot sustain : ITAT

GST - Form GST DRC-01 cannot substitute the requirement of a proper show-cause notice: HC

GST - Vague notice - Mere mention that there is a mismatch between GSTR-3B and 2A is not sufficient as the foundational allegation for issuance of notice u/s 74: HC

GST - Cancellation of registration - Sub-section (2) of s.29 specifically creates a statutory obligation of granting an opportunity of hearing: HC

CX - Purchaser of goods is not entitled to claim refund of duty paid under protest by manufacturer without complying with the mandate of s.11B: HC

CX - Cenvat credit is allowed beyond six months from issuing of invoice where time limit under Notfn No 21/2014-CE(NT) is extended to one year: CESTAT

ST - Military Engineering Service - Cenvat credit claimed by assessee acting as agent of MES, cannot be denied on ground of unjust enrichment: CESTAT

2021-TIOL-2080-HC-UKHAND-GST

Eficaz Project Ltd Vs Commissioner

GST - Sub-section (2) of Section 29 of the Act, specifically creates a statutory obligation, that in an eventuality, where the registration is required to be cancelled, under on account of the commission of the default or on account of an application submitted by the registered assessee, the opportunity of hearing is mandatory and is required to be provided. Held : Parties agreed that because the order impugned apparently suffers from the violation of a statutory provisions of non-providing of any opportunity as contemplated under Subsection (2) of Section 29 of the Act, the impugned order is quashed - The matter is remitted back to the respondent No. 2, to take an appropriate action and decision thereon only after providing an opportunity of hearing and the decision would be taken within a period of 30 days - Writ Petition is allowed: High Court [para 7]

- Petition allowed: UTTARAKHAND HIGH COURT

2021-TIOL-2079-HC-JHARKHAND-GST

Nkas Services Pvt Ltd Vs State of Jharkhand

GST - Show-cause notice issued by the Deputy Commissioner of State Taxes under Section 74 of the JGST Act, 2017 has been challenged by the petitioner along with the consequential challenge to summary of show-cause notice in FORM DRC-01 - Petitioner assails the Show Cause Notice (SCN) dated 7th June 2021 as being vague; without jurisdiction and that the proceeding initiated without service of FORM GST-ASMT-10 is void ab-initio. Held: [para 14 to 18] + A bare perusal of the impugned show-case notice creates a clear impression that it is a notice issued in a format without even striking out any irrelevant portions and without stating the contraventions committed by the petitioner i.e. whether its actuated by reason of fraud or any wilful misstatement or suppression of facts in order to evade tax. + Proceedings under Section 74 have a serious connotation as they allege punitive consequences on account of fraud or any wilful misstatement or suppression of facts employed by the person chargeable with tax. In absence of clear charges which the person so alleged is required to answer, the noticee is bound to be denied proper opportunity to defend itself. + This would entail violation of principles of natural justice which is a well-recognized exception for invocation of writ jurisdiction despite availability of alternative remedy. + Apex Court has [in Oryx Fisheries P. Ltd. (2010) 13 SCC 427 ] held that the concept of reasonable opportunity includes various safeguards and one of them is to afford opportunity to the person to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based. + It is also true that acts of fraud or suppression are to be specifically pleaded so that it is clear and explicit to the noticee to reply thereto effectively. + Impugned notice completely lacks in fulfilling the ingredients of a proper show-cause notice under Section 74 of the Act. A summary of show-cause notice as issued in Form GST DRC-01 in terms of Rule 142(1) of the JGST Rules, 2017 cannot substitute the requirement of a proper show-cause notice. + Court is not inclined to be drawn into the issue whether the requirement of issuance of Form GST ASMT-10 is a condition precedent for invocation of Section 73 or 74 of the JGST Act for the purposes of deciding the instant case. + Court finds that upon perusal of GST DRC-01 issued to the petitioner, although it has been mentioned that there is mismatch between GSTR-3B and 2A, but that is not sufficient as the foundational allegation for issuance of notice under Section 74 is totally missing and the notice continues to be vague. + Impugned notice and the summary of show-cause notice in Form GST DRC-01 are quashed. Respondents are at liberty to initiate fresh proceedings from the same stage in accordance with law within a period of four weeks.

- Petition allowed: JHARKHAND HIGH COURT

2021-TIOL-2074-HC-AHM-GST

AB Traders Vs State of Gujarat

GST -  Petitioner submits that the area where he is located was facing intermittent network outages and, therefore, the petitioner could not immediately generate e-way bill from the portal - However, the transporter, being in a hurry to complete the task assigned and as goods had already been loaded onto the vehicle, commenced movement of goods without waiting for e-way bill to be generated and given by the petitioner - The truck with the goods was intercepted and the goods were detained since e-way bill was not available with the driver - Consequently,  detention order and confiscation notice were served to the petitioner - It was also alleged that the registration of the recipient/buyer was being shown as "suspended" and that the goods had been undervalued - Petitioner sought provisional release of goods and vehicle and also informed that the registration of the buyer was very much active - Since nothing was heard from the respondent Revenue, the present  petition.

Held: As the matter is at the stage of GST MOV-10, Court would not like to enter into the merits of the matter - However, the request made by the petitioner needs to be considered by the authority - A speaking order is required to be passed by the authority/officer concerned in this regard on the issue of provisional release to enable the petitioner to take the necessary legal course - Period of two weeks shall be allowed before the officer concerned chooses to pass the order of confiscation in form GST MOV-11 - Petition is disposed of: High Court [para 12, 14]

- Petition disposed of: GUJARAT HIGH COURT

2021-TIOL-2082-HC-MAD-CX

Mahanadi Coalfields Ltd Vs CESTAT

CX - PVC impregnated colliery conveyor belting was purchased by the assessee from M/s. Fenner India Limited, Madurai - Said goods were classified by the Department under Sub-Heading 3920.11/3920.12 but the supplier M/s. Fenner India Limited contested the above classification stating that the said goods were classifiable under Sub-Heading 3922.90/3926.90 - Dispute was finally settled by the Supreme Court in favour of the supplier by holding that the said goods were classifiable under Sub-Heading 3922.90/3926.90 – As the assessee had borne the entire duty burden paid by the supplier they filed a claim on 22.7.2003 for refund of central excise duty to the tune of Rs.23,14,715/- - They also stated that they had not passed on the duty liability to its customers, as the goods involved were capital goods and no duty was payable on the final product, for which, such goods were used – Since this claim was rejected by the lower authorities, the assessee is in appeal before the High Court.

Held: Decision in Western Coalfields Ltd. case 2019-TIOL-72-SC-CX and more particularly the conclusion in paragraph 14 is a clear answer to the assessee's case - Indisputably, the application was filed by the appellant as a buyer of the goods from the supplier namely the said M/s. Fenner India Ltd., which paid duty under protest after the period of limitation prescribed in law and, therefore, this would dis-entitle the claim of refund to the assessee as prayed for by applying the law laid down by the Hon'ble Supreme Court in the case of Allied Photographics India Ltd., wherein it was held that the purchaser of the goods was not entitled to a claim for refund of duty made under protest by the manufacturer without complying with the mandate of Section 11B of the Act - Appellant assessee has not made out any case to interfere with the impugned order passed by the Tribunal - Civil miscellaneous appeal stands dismissed: High Court [para 23 to 25]

- Appeal dismissed: MADRAS HIGH COURT

2021-TIOL-2081-HC-P&H-CUS

Modern Insecticides Ltd Vs CC

Cus - Brief facts are that the petitioner had allegedly exported 'Sulphur Formulation' to a Sister Concern in Dubai; however by the time the consignment reached there they could not be sold because there was no demand at that time and consequently, those goods were sent back to the petitioner - On checking those goods, it was found that some of the goods which were returned were actually different from the ones that had been exported and consequently, the goods were detained - The petitioner moved an application for provisional release of goods for re-export but it was declined but the Appellate Authority allowed the plea of the petitioner - Petition is filed against the alleged act of omission by the Department in not giving effect to the order passed by the Appellate Authority. Held: It has been specifically noticed by the Commissioner (Appeals) that on an earlier occasion also, an identical issue had arisen and the goods of the petitioner were permitted to be cleared vide release order dated 20.06.2018 and the adjudicating authority while granting provisional release of the goods had specifically held that no duty is leviable on the goods ordered to be cleared to an export oriented unit and that the said release order had been accepted by the Department - In the present case, it has come on record that the samples with respect to the goods in question have already been taken by the Authorities - Moreover, the petitioner is a 100% export-oriented unit and thus, any difference in the declaration of the value of the goods to be exported by the petitioner would not make much difference, as the petitioner would be entitled to seek 100% refund of the duty paid - While balancing the rights of the petitioner with the interest of the revenue, Bench disposes of the writ petition on the terms and conditions as laid down: High Court

- Petition disposed of: PUNJAB AND HARYANA HIGH COURT

2021-TIOL-671-CESTAT-AHM

NR Agarwal Industries Ltd Vs CCE & ST

CX - The issue arises is, whether the appellant is entitled for Cenvat Credit beyond six months from the date of issue of invoice in terms of Notification No. 21/2014 -C.E. (N.T.) which was substituted by amended Notification No. 06/2015 -C.E. (N.T.) - The issue has been considered in various judgments and it was interpreted that all the invoices issued prior to the issuance of Notification No. 21/2014 -CE (N.T.), the notification shall not apply consequently, there is no time limit for taking credit in respect of those invoices - In present case, most of the invoices were issued after the date of notification, since the time-limit has been extended from six months to one year by substitution in Notification No. 21/2014 -C.E. (N.T.), the time limit shall be taken as one year - In this position, the credit should not have been disallowed by applying the notification retrospectively - The issue is no longer res-integra - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-670-CESTAT-BANG

Lekshmi Engineers Vs CCE & CT

ST - The appellant filed a claim for refund of service tax paid on the services provided to Military Engineering Services (MES) - The said services were exempted from payment of service tax vide Notification No. 25/2012-S.T. as amended by Notification No. 09/2016-S.T. - Notification No. 09/2016-S.T. ibid provided for retrospective exemption from service tax on specified services - A SCN was issued proposing to reject the refund claim on the ground of unjust enrichment and the lower authority after due process, rejected the same - This Bench on an earlier occasion, in an almost identical situation, in the case of SN Atiwadkar 2019-TIOL-1560-CESTAT-BANG has considered this very issue and observed that the appellant is claiming the refund as a representative of MES and not on his own account and therefore the principle of unjust enrichment under the provisions of Section 11B of Central Excise Act, 1944 is not applicable - The denial of refund cannot be sustained and hence, the impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT