2021-TIOL-2117-HC-DEL-GST
Ankush Auto Deals Vs Commissioner of DGST
GST - The Petitioner seeks directions to the respondents to issue refund as well as to grant interest on said refund amount from the date immediately after the expiry of sixty days from the date of receipt of application in FORM RFD-01 till the date of refund and grant exemplary damages to petitioner as the respondents had acted in malafide exercise of power in withholding the refund - Revenue undertakes to this Court that the petitioner's representations shall be disposed of in accordance with law within three weeks - The undertaking given by respondents is accepted by this Court and the respondents are held bound by the same: HC
- Matter listed: DELHI HIGH COURT
2021-TIOL-2116-HC-MAD-GST
Sri Vardhaman Kraft Papers Pvt Ltd Vs Asstt. Commissioner (ST)
GST - Petition has been filed assailing impugned order which has been made under Section 73 of 'Tamil Nadu Goods and Services Tax Act, 2017 ' - It cannot be necessary to delve into the matter in great detail as Revenue who accepts notice on behalf of lone respondent, submits that there is a balance of Rs.5,29,327/- in the hands of respondent - However, Revenue submits that this is a matter for refund and for this purpose, petitioner may have to make an application for refund in accordance with TN-GST Act and more particularly an application under Section 54 of TN-GST Act - As all that the petitioner wants is his money back irrespective of nomenclature under which it is returned to him - The impugned order is set aside recording the stated position of respondent leaving it open to the petitioner to file an application for refund in - Though obvious it is made clear that such refund application shall be considered on its own merits and in accordance with law: HC
- Writ petition disposed of: MADRAS HIGH COURT
2021-TIOL-2112-HC-MUM-GST
Godrej And Boyce Manufacturing Company Ltd Vs UoI
GST/CX - S.140 of the CGST Act, 2017 - Petitioner has mounted a challenge to a show cause notice dated August 27, 2019 issued by the Joint Commissioner, CGST & C.Ex, Navi Mumbai, respondent no.3 - It has been alleged in such notice that the petitioner "availed inadmissible transitional credit amounting to Rs.3,83,43,693/- [Ed Cess: Rs.1,46,47,191/-, S.H. Ed Cess: Rs.71,77,464/- & PLA: Rs.1,65,19,038/-] in their Trans-1 filed on December 26, 2017" - According to the petitioner, the impugned notice proceeds on the footing that the transitional arrangement for taking Input Tax Credit in the cases of CESS such as Education Cess (E Cess), Secondary & Higher Education Cess (SHE Cess) and Krishi Kalyan Cess (KK Cess) has been taken away by a retrospective amendment - However, petitioner claims that not only on the date of its issuance but even on the date this writ petition was presented, the amendment(s) referred to in the impugned notice had not come into force and, therefore, the impugned notice has been issued on an untenable legal premise; hence, it is without jurisdiction - Furthermore, without the amendments introduced in Explanations 1 and 2 to Section 140 being brought into force, the respondent no.3 merely on the basis of Explanation 3, as introduced and brought into force, could not have issued the impugned show cause notice and since the same suffers from a gross jurisdictional error, the petitioner is under no obligation to respond thereto.
Held:
+ Petitioner seems to be right in their contention that mere introduction of Explanation 3 to Section 140 of the CGST Act, and making it operational with effect from February 1, 2019, would not clothe the respondent no.3 with the power to issue a show- cause notice on the premise that Education Cess, Higher Secondary Education Cess and Personal Account Amounts are not included in Explanations 1 and 2.
+ For sustaining the validity and/or legality of the impugned show-cause notice, the respondent no.3 could not have relied upon Explanation 3 exclusively to contend that cess is not included in ‘eligible duties and taxes'. As the law now stands, Explanation 3 does not have any application to sub-section (1) of Section 140.
+ The respondent no.3 while issuing the impugned show cause notice perhaps overlooked this aspect and also that, parts of the amendments in Explanations 1 and 2 to Section 140 of the CGST Act sought to be introduced by sub-clauses (1) each of clauses (b) and (c) of Section 28 of the Amending Act are yet to be brought into force. In such view of the matter, a reference to Explanations 1 and 2, as it stands now, may be held to be mindless which, in law, would amount to issuance of a notice without due regard to the provisions of law as well as facts requiring existence or non-existence of a material fact for assumption of jurisdiction. [para 11]
+ An error in assumption of jurisdiction might also render a notice/an order ultra vires and bad. Perusal of the impugned show-cause notice would reveal assumption of jurisdiction by the respondent no.3 based on introduction of Explanation 3 to Section 140 of the CGST Act read with Explanations 1 and 2 thereof without showing application of mind as to whether the amended Explanations 1 and 2 have been made operational or not as well as whether Explanation 3 would at all apply to sub-section (1) of Section 140 of the CGST Act.
+ Even otherwise, it has not been shown to us that upon introduction of Explanation 3 of Section 140 of the CGST Act read with partly un-amended Explanations 1 and 2 thereof, the respondent no.3 did have the jurisdiction to issue the impugned show-cause notice. [para 13]
+ Bench holds that the present case is one where the impugned show-cause notice suffers from an error going to the root of the jurisdiction of the respondent no.3 in assuming jurisdiction and is, accordingly, indefensible and liable to be set aside. Ordered accordingly. [para 14]
+ It is, however, made clear that if the respondent no.3 has reason to believe that the action proposed in the show-cause notice could be saved even without the amendments in Explanations 1 and 2 to Section 140 of the CGST Act having been brought into force or on grounds other than the one assigned therein, it shall be at liberty to issue a fresh show-cause notice to the petitioner and if such notice is issued, the petitioner will be free to respond to the same and take all possible defences available to it in law. [para 15]
- Writ petition disposed of: BOMBAY HIGH COURT |
