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Cus - CDMA-WLL telephones qualify as cellular phones & are eligible for exemption under Notification No. 6/2002-CE & Notification No. 21/2002-Cus: SC

GST - Notice uploaded was wholly unintelligible inasmuch as substance of the notice/reasons appeared in garbled language/symbols - Physical copy not served - Order passed ex parte set aside: HC

GST - Cancellation of registration - Petitioner can not be relegated to the forum of alternative remedy as his valuable right to do business has been curtailed in violation of principles of natural justice: HC

2021-TIOL-2133-HC-ALL-GST

SR Steel Vs State of UP

GST -   Challenge has been raised to the order dated 15.7.2020 passed by respondent no.3, Deputy Commissioner, Commercial Tax, Sector-17, Ghaziabad titled "order for cancellation of registration" - Initially a show cause notice dated 05.04.2018 proposing to cancel the petitioner's registration was uploaded on the GST Portal - That notice was wholly unintelligible, inasmuch as substance of the notice/reasons appeared in garbled language/symbols which fact is admitted by the State - Realising the above mistake, the respondent authorities allegedly issued a physical notice to the petitioner on the same date - Pursuant thereto, the respondent further claims to have passed an order dated 30.6.2018 - Petitioner disputes service of the aforesaid physical copy of the notice dated 5.4.2018 and the order dated 30.6.2018 - It is the case of the State respondents that despite the order cancelling the petitioner's registration, the GST Portal continued to disclose the status of the petitioner firm as "active" - Occasioned by the same, the Assistant Commissioner, Commercial Tax, Sector-17, Ghaziabad wrote to the Joint Commissioner (IT), Commercial Tax, Lucknow, dated 25.6.2020 seeking reconciliation of the aforesaid discrepancy and consequently on 15.7.2020 the impugned order regarding cancellation of petitioner's registration has been served on the petitioner -  Counsel for Revenue submits that the petitioner has adequate remedy of appeal against the order dated 30.6.2021 and also to seek recall of that order.

Held: Undeniably, cancellation of registration has serious and far reaching consequences on the rights of the dealer/person engaged in any business - Such cancellation may even take away the right to conduct business - Also, in the context of the GST Laws, it has further consequence of upsetting ITC entitlement on sale and purchase by such a person/dealer - Even so, the Act itself obligates the authority to issue a prior notice and afford a proper opportunity of hearing to the concerned before cancellation of his registration - This mandatory requirement is contained in the first proviso to Section 29(2) of the UPGST Act, 2017 - Before an order cancelling the registration may be upheld or be allowed to exist or recognised in law it must, therefore, be undisputed that the affected dealer/person had been issued a proper prior show cause notice in that regard and he had been afforded adequate opportunity to defend - Undisputedly, the notice that was uploaded on the GST Portal was unintelligible inasmuch as other than the year "2017-18", the words " LODHAN SHIVPUR, CHANDMARI, 221003-VARANASI, GSTN- 09DYBPK2587N3ZP and the numerals "7" and "0-325" all other characters appearing in the paragraph i.e. paragraph meant to contain the reason to cancel the registration are "?", only -  It may have been one thing if the status of the petitioner's registration had been reflected "cancelled" on the GST Portal - On the contrary, Counsel for Revenue fairly states that for some technical reason, despite the orde

r dated 30.6.2018, the status of the petitioner's registration continued to display on the GST Portal as "active" - That being the case of the State, the order dated 30.6.2018 could not be given effect to till as late as 15.7.2020 - Therefore, a lead consequence does arise in law that the order dated 30.6.2018 was neither served on the petitioner nor given effect to, till 15.7.2020 - In view of the further fact that the show cause notice dated 5.4.2018 as served on the petitioner was unintelligible and physical copy of the said notice was not served at the relevant time, the order cancelling the petitioner's registration is found to be wholly ex parte being contrary to the mandatory requirement of the first proviso to Section 29(2) of the Act - Petitioner/citizen may not be relegated to the forum of alternative remedy as his valuable right to do business has been curtailed in violation of principle of natural justice - Order dated 30.6.2018 cancelling the petitioner's registration is set aside and the matter is remitted to respondent no.3 to pass a fresh order, in accordance with law - Petition allowed with above observation: High Court

- Matter remanded: ALLAHABAD HIGH COURT

2021-TIOL-2135-HC-MAD-VAT

Eureka Systems And Electrodes Pvt Ltd Vs Asstt.Commissioner (ST)

Whether penalty can be imposed in cases of escaped turnover assessment subject to cases where best judgment method is adopted and not in cases where Section 16 assessment is made - YES: HC

Whether alternate remedy rule has to be applied with utmost rigour, when it comes to fiscal law statutes - YES: HC

- Assessee's petition partly allowed: MADRAS HIGH COURT

2021-TIOL-2134-HC-MUM-SERVICE

Neeraj Singh Vs UoI

Whether charge is said to be vague when it does not disclose with sufficient clarity and precision what allegation against charged officer is - YES: HC

Whether submission of written statement of defence would exonerate the prosecution from bringing home charges against the accused - NO: HC

Whether mere issuance of a charge-sheet can be said to affect any legal right of the departmental officer proceeded against - NO: HC

- Case disposed of: BOMBAY HIGH COURT

2021-TIOL-253-SC-CUS

CC & CE Vs Teracom Pvt Ltd

Cus - The issue at hand is whether CDMA WLL telephones are Cellular Phones eligible to the benefit of exemption Notification No.6/2002-CE, 21/2002-Cus, 21/2005-Cus dated 1.3.05 - On adjudication, the Commissioner had held that CDMA WLL phone does not work on cellular technology and hence, the benefit of various exemption notifications are not available to the appellants; that CDMA WLL phones are "basic phones without wires" and they are not cellular phones & this finding of the Commissioner is not based on any technical material, but based on advertisements of BSNL, website information, orders passed by Telecom Regulatory Authority of India (TRAI) and Telecom Dispute Settlement Appellate Tribunal - The Tribunal held that the Board has acknowledged in Circular 57/03 dt. 27.6.03 that the CDMA WLL fixed wireless telephones are working on cellular technology & also clarified in para 4, that CDMA WLL using CDMA is a recent advancement in cellular technology - Board vide circular No. 15/06-Cus dated 20.4.06 had modified its earlier circular dated 27.6.03 and clarified that the exemption is available to CDMA WLL fixed wireless phones.

Held - The Tribunal allowed the respondents appeals and held that CDMA-WLL telephones manufactured by M/s Teracom Private Limited are Cellular Phones and hence eligible to the benefit of exemption in terms of serial No. 264 of the table to the Notification No. 6/2002-CE dated 1.3.2002, Notification No. 21/2002-Cus dated 1.3.2002 as per serial No. 320 of the Table thereto and Notification No. 21/2005-Cus dated 1.3.2005 - considering the decision of this Court in the case of Tata Teleservices Limited it cannot be said that the Tribunal committed any error in allowing the appeals preferred by the respondents and holding that the respondents shall be entitled to the benefit of exemption under the relevant notifications: SC

- Revenue's appeals dismissed: SUPREME COURT OF INDIA