2022-TIOL-49-HC-DEL-GST

Indo International Tobacco Ltd Vs Vivek Prasad

GST - Petitions raise a common question of law and are premised on the Circular, bearing D.O. F. No. CBEC/20/43/01/2017-GST (Pt.), dated 05.10.2018, issued by the Central Board of Excise and Customs - Petitioners submit that issuance of such multiple summons to the petitioner(s) by multiple agencies (DGGI, Delhi Zone Unit, DGGI, Ghaziabad, Kanpur unit, Ahmedabad Zonal Unit [AZU] ) is violative of the mandate of Section 6(2)(b) of the CGST Act and as also the Circular dated 05.10.2018 issued by the CBEC - They submit that the jurisdictional Commissionerate(s) of the petitioners, being situated at Gautam Buddha Nagar and South Delhi, respectively, having initiated proceedings against the petitioners, no other Officer of the CGST has jurisdiction to proceed against the petitioners - They submit that it is only the jurisdictional Commissionerate that has the jurisdiction to carry out the entire process of investigation, including the issuance of Show Cause Notices, adjudications, recovery, etc.

Held : Section 6 of the CGST Act is clearly guided by the object of providing a common national market of goods and services and to eliminate the subjection of the taxpayers to multiple jurisdictions - It aims to provide protection to the taxpayers against being subjected to multiple agencies for the same set of transactions, at the same time empowering the Officers under the CGST Act or the SGST Act or the UTGST Act to pass a comprehensive order and take action, keeping in view and extending to the other Acts - To give effect to the above intent, Section 6(2)(b) of the CGST Act states that where the proper officer under the SGST Act or the UTGST Act has initiated any proceedings on a subject matter, the Central Tax Officer shall not initiate proceedings on the same subject matter - Clearly the intent being that as the State Tax Officer is empowered to pass an order even under the CGST Act, there is no occasion for the Central Tax Officer to initiate parallel proceedings on the same subject matter - Section 6 of the CGST Act is intended to give the effect of harmonious convergence of the States and the Union for the same event for taxation - Neither Section 6 of the CGST Act nor the Circular dated 05.10.2018 is intended to nor can be given an overarching effect to cover all the situations that may arise in the implementation of the CGST and the SGST Acts - It is not intended to answer a situation where due to complexity or vastness of the inquiry or proceedings or involvement of number of taxpayers or otherwise, one authority willingly cedes jurisdiction to the other which also has jurisdiction over such inquiry/proceedings/taxpayers - Neither Section 6 of the CGST Act nor the SGST Act nor the Circular dated 05.10.2018, therefore, apply to the fact situation presented by the two petitions - To strictly enforce Section 6 and the abovementioned Circular dated 05.10.2018 would, therefore, lead to compelling such officer to restrict his investigation and findings and resultant action only to the taxpayer within his territorial jurisdiction, thereby leading to an incomplete and inconclusive investigation/action - It is settled principle of interpretation of statute that the court must adopt construction which will ensure smooth and harmonious working of the statute and eschew the other which will lead to absurdity or give rise to practical inconvenience or friction or confusion in the working of the system - It is not denied by the petitioners that the DGGI, AZU has a pan-India jurisdiction - DGGI, AZU would, as Central Tax Officer and in compliance with the mandate of Section 6 of the CGST Act and the SGST Act, have to pass comprehensive order, both under the CGST Act as also the SGST Act - Circular dated 05.10.2018 has no application to the peculiar facts in the present set of writ petitions - As contended by the respondents, as common thread were allegedly found in these investigations, the same have been transferred to DGGI, AZU to be brought under one umbrella - Bench also finds that in the CGST Act there is no prohibition to such transfer - No merit in the present writ petitions, hence dismissed: High Court [para 59 to 61, 66, 67, 69, 70, 76, 77]

- Petitions dismissed: DELHI CESTAT

2022-TIOL-48-HC-MUM-GST

Saiher Supply Chain Consulting Pvt Ltd Vs UoI

GST - Petitioner seeks declaration that, Rule 90(3) of the Central Goods and Services Tax Rules, 2017 is ultra vires the Constitution of India and the Central Goods and Services Tax Act, 2017 and consequently strike down the same - Petitioner also a seeks writ of certiorari for quashing and setting aside the rejection Order dated 26th November 2020 [rejected on the ground that the said application seeking refund for the period July 2018 to September 2018 was time barred] and seeks an Order and direction to restore the third refund application dated 30th September 2020 of the Petitioner filed by the Respondent No. 2 and to decide the same on merits.

Held: The third refund application was required to be filed within two years in accordance with the Circular No. 20/16/04/18-GST dated 18th November 2019, under Section 54(1) of the Central Goods and Services Tax Act, 2017 - The limitation period fell between 15th March 2020 and 2nd October 2021, which period was excluded by the Supreme Court [ Cognizance for Extension of Limitation - [ 2020-TIOL-77-SC-MISC-LB ] & - 2021-TIOL-246-SC-MISC-LB ] in all such proceedings irrespective of the limitation prescribed under the general law or Special Law whether condonable or not till further Order/s to be passed by the Hon'ble Supreme Court in those proceedings - Respondent No. 2 is also bound by the said Order dated 23rd March 2020 [ 2020-TIOL-77-SC-MISC-LB ] and the Order dated 23rd September 2021 [ 2021-TIOL-246-SC-MISC-LB ] and is required to exclude the period of limitation falling during the said period - Since the period of limitation for filing the third refund application fell between the said period 15th March 2020 and 2nd October 2021, the said period stood excluded - The third refund application filed by the Petitioner thus was within the period of limitation prescribed under the said Circular dated 18th November 2019 read with Section 54(1) of the Central Goods and Services Act, 2017 - The impugned Order passed by the Respondent No. 2 is contrary to the Order passed by the Supreme Court and thus deserves to be quashed and set-aside - Respondent No. 2 is directed to consider the said third refund application dated 30th September 2020 on its own merits and in accordance with law expeditiously – Bench has not gone into the validity of the Circular and the Rule 90(3) - Petition is allowed: High Court [para 12, 14, 15]

- Petition allowed: BOMBAY HIGH COURT

2022-TIOL-47-HC-MAD-GST

Vikas Elastochem Agencies Pvt Ltd Vs Dy. CCE & GST

GST - TRAN-1 - Petitioner had filed the TRAN-1 in time with certain mistakes and the petitioner had also made an another attempt to rectify the mistake on 27.12.2017 - Thereafter, the petitioner had also filed a writ petition before the High Court but withdrew the same under bonafide relief that the issue would be resolved before the IT Grievance Redressal Committee (IT-GRC) - However, the IT Grievance Redressal Committee (IT-GRC) in its 6th meeting held on 27th May 2019 decided to not to recommend the case favourably in its 32nd GST Council decision - Petitioner further submits that they have sent several representations thereafter which has not evoked any response from the second respondent, therefore, the present petition.

Held: These are the amounts which have accumulated prior to the introduction of the respective GST Act, 2017 with effect from 01.07.2017 - The amounts which were available as input tax credit under the erstwhile Central Excise Rules, 2002 read with Cenvat Credit Rules were to be transited as their equivalent to cash to the extent and that they are available for being used for discharging the tax liability - Procedure prescribed under the provisions of Central Goods and Services Tax Act, 2017 and the respective State Enactments and the Rules made thereunder should not come in the legitimate way of transitional credits as such credits were already available for being utilized for discharging the tax liability - These amounts cannot lapse - The difficulty in amending the Tran-1 is on account of the Architecture of the Web Portal which did not permit the petitioner to make such amendments - The petitioner cannot be found fault if Architecture of the Web Portal did not have such facility - Input Tax Credit once availed are indefeasible and cannot lapse - Petition is disposed of by directing the second respondent to take an independent decision by deputing a suitable officer from the Department to verify that the petitioner indeed had un-utilized accumulated credit for a sum of Rs.33,28,709.60 - If the aforesaid amount of credit was available on 01.07.2017, the technical problem in the GST Portal may be internally resolved by the respondents by issuance of suitable directions in terms of decision in Ram Auto [ 2021-TIOL-496-HC-MAD-GST ] - Exercise shall be carried out by the second respondent within a period of six weeks - Petition disposed of: High Court [para 21, 22, 23, 24, 25]

- Petition disposed of: MADRAS HIGH COURT