I-T- Tribunal has already held that sec 35ABB is not applicable on assesse, PCIT can not disobey merely on pretext that department has not accepted decision and appeal is pending : ITAT

I-T- Addition towards undisclosed development expenses in respect of three colonies on guess work and surmises is not justified : ITAT

CX - Provisions of SARFAESI Act, 2002 will have overriding effect over provisions of Central Excise Act of 1944: SC

GST - If SCN does not specify grounds for proceeding against noticee, no tax, interest or penalty can be imposed above amount specified in SCN or on grounds other than grounds specified in SCN: HC

GST - refund of IGST lying in Electronic Credit Ledger is allowed as there is no specific supplier who can claim refund under CGST Act & Rules, as ITC is distributed by ISD: HC

2022-TIOL-276-HC-AHM-GST

Arafa Traders Vs State of Gujarat

GST - Despite directing the authority not to proceed to pass final order of confiscation, the authority, during pendency of this application, proceeded to pass the final order in Form MOV 11 - According to petitioner, final order of confiscation in Form MOV 11 is ex-parte - Application declined to be entertained on the short ground that the applicant has a statutory remedy of filing an appeal before Appellate Authority under Section 107 of the Act - If any appeal is filed, applicant can take up, as one of the grounds while challenging the final order of confiscation, that the same is ex-parte, or to put it in other words, no opportunity of hearing was given to the dealer: HC

- Writ application disposed of: GUJARAT HIGH COURT

2022-TIOL-275-HC-MUM-GST

Avana Logistek Ltd Vs UoI

GST - The Petitioner sought for quashing and setting aside the impugned order, thereby confirming the demand raised - This matter was on board on 14th February 2022 when after hearing the matter at great length, Court adjourned the matter to enable the revenue to take instructions, as to, whether the revenue is agreeable for remand of matter - In view of the instructions received by Authority vide email, impugned order confirming the demand is quashed and set-aside - The proceedings are restored before Respondent for deciding the matter afresh to decide the matter expeditiously and shall make an endeavour to dispose of the matter on or before 30th June 2022: HC

- Writ petition allowed: BOMBAY HIGH COURT

2022-TIOL-271-HC-JHARKHAND-GST

NKAS Services Pvt Ltd Vs State of Jharkhand

GST - The present petition was filed to challenge SCN issued u/s 73 of the Jharkhand Goods and Services Tax (JGST) Act, 2017 and the summary of the show cause notice in Form DRC-01 also issued by the Revenue under Rule 142(1)(a) of the JGST Rules, 2017 since the previous show cause notice dated 07.06.2021 issued under Section 73 of the JGST Act has been withdrawn.

Held - The show cause notice does not fulfill the ingredients of a proper show cause notice and amounts to violation of principles of natural justice: HC

+ A perusal of the impugned show cause notice at Annexure-1 creates a clear impression that it is a notice issued in a format without even striking out any relevant portions and without stating the contraventions committed by the petitioner. The summary of the show cause notice under DRC-01 indicates that as per the statistics received from the headquarter/ government treasury, it has come to the notice of the department that the petitioner has received a sum as payment from the government treasury against works contracts services completed / partly completed during the above mentioned period April 2020 to March 2021 whereas the liability reflected by him through filed returns is less than the above mentioned sum as per GSTR-3B. As such, he was not reflecting the total payment received and consequent total liability accrued in the filed returns just to evade payment of due tax to the government. It needs to be mentioned here that even the summary of the show cause notice does not disclose the information as received from the headquarter / government treasury as to against which works contract service completed or partly completed the petitioner has not disclosed its liability in the returns filed under GSTR-3B. We have held in the case of the same petitioner in W.P.(T) No. 2444 of 2021 related to a show cause notice under Section 74 of the JGST Act that a summary of show cause notice as issued in Form GST DRC-01 in terms of rule 142(1) of the JGST Rule, 2017 (Annexure-2 impugned herein) cannot substitute the requirement of proper show cause notice. (Para 11);

+ As held there in, the requirement of principles of natural justice can only be met if (i) a show cause notice contains the materials / grounds, which according to the Department necessitate an action; (ii) the particular penalty/ action which is proposed to be taken. Even if it is not specifically mentioned in the show cause notice, but it can be clearly and safely discerned from the reading thereof that would be sufficient to meet this requirement;

+ We find that the show cause notice is completely silent on the violation or contravention alleged to have been done by the petitioner regarding which he has to defend himself. The summary of show cause notice at annexure-2 though cannot be a substitute to a show cause notice, also fails to describe the necessary facts which could give an inkling as to the contravention done by the petitioner. As noted herein above, the brief facts of the case do not disclose as to which work contract, services were completed or partly completed by the petitioner regarding which he had not reflected his liability in the filed return as per GSTR-3B for the period in question. It needs no reiteration that a summary of show cause notice in Form DRC-01 could not substitute the requirement of a proper show cause notice. At the same time, if a show cause notice does not specify the grounds for proceeding against a person no amount of tax, interest or penalty can be imposed in excess of the amount specified in the notice or on grounds other than the grounds specified in the notice as per section 75(7) of the JGST Act. (Para 14);

- Writ pettion allowed: JHARKHAND HIGH COURT

2022-TIOL-270-HC-AHM-GST

IPCA Laboratories Ltd Vs Commissioner

GST - The petitioner is a pharmaceutical company - One of the manufacturing facilities of the petitioner is located in a Special Economic Zone at Kandla, Gandhidham - The petitioner claims that it is authorized to operate as a Special Economic Zone at the Kandla SEZ, Kandla, Kutch and is engaged in the export of goods under the Letter of Undertaking (LUT) from the SEZ Unit - In the year 2017-18, the writ applicant accumulated Input Tax Credit (ITC) to the tune of Rs.21,66,887/- - The petitioner received the Input Tax Credit of the integrated tax from its ISD and ITC inward supply charged by the supplier as is permissible under the law - It is the case of the petitioner that being a SEZ Unit making Zero Rated Supplies under the GST, the petitioner has not utilized the credit and the same is lying unutilized in the Electronic Credit Ledger - Hence the petitioner filed the refund application in Form GST RFD - 01A on 3rd April 2019 - Thereafter, a show cause notice in Form GST RFD - 08 was issued proposing to disallow the refund - The Assistant Commissioner, thereafter, proceeded to pass an order in Form GST RFD - 06 rejecting the refund claim of the writ applicant of Rs.21,66,867/- u/s 54 of the CGST Act, 2017 - The petitioner then preferred an appeal before the appellate authority i.e. the Joint Commissioner (appeals), however such appeal came to be dismissed.

Held - The issue raised in the present writ application is no longer res integra in view of the judgement and order passed by this Court dated 11th March 2020 in the case of M/s. Britannia Industries Limited vs Union of India - Besides, the judgment in M/s. Britannia Industries Limited is based on M/s. Amit Cotton Industries vs Principal Commissioner of Customs - Hence the petitioner could be said to be entitled to claim the refund of the IGST lying in the Electronic Credit Ledger as there is no specific supplier who can claim the refund under the provisions of the CGST Act and the CGST Rules as Input Tax Credit is distributed by the input service distributor - Therefore, the order in question is quashed and set aside & the Revenue authorities concerned are directed to process the refund claim for the unutilized IGST Credit lying in the Electronic Credit Ledger under Section 54 of the CGST Act 2017: HC

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-17-SC-CX

Punjab National Bank Vs UoI

Whether dues of the secured creditor will have priority over the dues of the Central Excise Department - YES: SC

Whether provisions contained in the SARFAESI Act, 2002 will have an overriding effect on the provisions of the Central Excise Act of 1944 - YES: SC

- Assessee's appeal allowed: SUPREME COURT OF INDIA

2022-TIOL-171-CESTAT-KOL

Interstate Syndicate Vs CCE & ST

ST - The case of Revenue is that the appellant had been providing services in state of Jharkhand much prior to 31.12.2010, i.e. before it obtained Service Tax registration in Jharkhand - Therefore, appellant ought to have discharged applicable Service Tax liability in State of Jharkhand vis-à-vis the services provided from their premises in Jharkhand - The registration obtained by appellant in state of Odisha and Jharkhand was under different PAN - The fourth character of a PAN represents the status of the PAN holder - Similarly, the fifth character of a PAN represents the first alphabet of PAN holder's surname in case of individuals and the first alphabet of PAN holder's name in case of non-individuals - The services provided by appellant in Odisha and Jharkhand are to be considered as services provided by two different entities - Contention of appellant that they had not been providing services in state of Jharkhand prior to obtaining registration in state of Jharkhand is contrary to the evidence on record - As per work orders and statement of Bills produced by appellant for period prior to 31.12.2010, it is evident that the appellant was accepting work orders addressed to its address in Jharkhand during the period from 2007 to 2010 - Further, appellant was also raising invoices during said period which contained its address in Jharkhand - It is also observed that surprisingly, certain invoices raised by appellant did not contain any address - Therefore, even if for the sake of argument, it is accepted that the appellant was providing services from Odisha, no cogent reason found to justify the mention of their address in Jharkhand in invoices while there being no mention of their registered address in Odisha at the same time - In respect of contention of appellant that the demand of Service Tax in respect of 'Mining Services' provided prior to 01.06.2007, CBEC had issued various clarificatory Circulars and Notifications to clarify the treatment of specific services, forming part of 'Mining Services', prior to 01.06.2007 - Therefore, to the extent of demand raised on value of service, matter remanded to Adjudicating Authority to calculate the actual demand payable by appellant keeping in mind the exact nature of service provided by appellant and the clarifications issued by CBEC from time to time in respect thereof: CESTAT

- Matter remanded: KOLKATA CESTAT

2022-TIOL-170-CESTAT-AHM

CST Vs Bharat Sanchar Nigam Ltd

ST - This is department's appeal against impugned order whereby they proposed imposition of penalty under Rule 15(4) as suppression of fact has been confirmed by Adjudicating Authority - On going through the finding of Adjudicating Authority, it is clearly held that there is suppression of fact on the part of assessee - Therefore, correct rule for penalty to be invoked is Rule 15(4) of CCR, 2004 and not Rule 15(2) - However, whether there is suppression of fact or otherwise the matter in assessee's appeal has been remanded to Adjudicating Authority - Therefore, matter needs to be remanded to Adjudicating Authority - Accordingly, matter remanded to Adjudicating Authority to decide the matter of penalty along with earlier remand matter: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2022-TIOL-169-CESTAT-MAD

CC Vs Roshan Petrochem

Cus - The assessee had imported goods classifying them under CTH 27101990 with the description LAWS - The samples were drawn and sent for testing - Commissioner (A) has given a Table enumerating the test parameters of LAWS and Kerosene in comparison with the test report of CRCL and HPCL - From the parameters, it was held by Commissioner (A) that the goods are more akin to LAWS than Kerosene - The parameters in regard to burning point was not tested and reported - The IS specification requires that all the eight parameters have to be satisfied in case of Kerosene - When only seven parameters have been tested and reported, the department cannot conclude that the goods conform IS : 1459 : 2018 (kerosene) and not IS : 1745 : 2018 LAWS - When department does not accept the classification declared by importer and rejects the classification stated in suppliers' analysis certificate, burden lies upon department to establish the correct classification - In similar issue, Tribunal in case of Swarna Oil Services , SM Trading Company 2020-TIOL-970-CESTAT-AHM held that if all the eight parameters are not tested, the evidence adduced in the nature of test reports cannot be relied to conclude the classification of the goods as Kerosene - The Commissioner (A) has followed and applied the said decision - The impugned order calls for no interference, same is upheld: CESTAT

- Appeals dismissed: CHENNAI CESTAT