I-T - Assessment order merits being quashed where passed before assessee is able to file reply to SCN: HC

I-T - Assessment order passed in excess of authority while deciding an application for condonation of delay is unsustainable where no personal hearing is given : HC

I-T - Re-assessment cannot be resorted to baldly by simply mentioning failure to make full & true disclosure & without substantiating such charge: HC

I-T - Re-assessment not tenable where based on change of opinion: HC

I-T- Writ remedy cannot be availed where appellate remedy is availed concurrently: HC

I-T - Power of revision cannot be exercised where order passed by AO is based on sound appreciation of settled legal precedents : ITAT

I-T- Addition u/s 153A proceedings cannot sustain as addition for unsecured loans is not made on basis of any incriminating material found during the course of search :ITAT

GST - A  writ to quash a summoning order is not maintainable - Bench is not inclined to follow orders passed by the Single Judge as they do not constitute a binding precedent: HC

GST - Unable to upload ITC-01 - A technical glitch on the portal should not deprive applicant of his rightful claim - Department should resolve controversy: HC

Cus - Test reports indicate goods to be naphtha, therefore, are to be released upon execution of bond - DRI can proceed further with its enquiry if it still has doubts: HC

ST - Whether petitioner is entitled to the benefit of cited decision or not would require a detailed consideration on facts - Alternate remedy of appeal to be followed: HC

2022-TIOL-281-HC-UKHAND-GST

Himgiri Ispat Pvt Ltd Vs CCGST

GST - Petitioner challenges the summoning order issued by the Inquiring Officer for recording the statement of the petitioner.

Held: Stay orders by Single Judge have been granted restraining the respondents from arrest of the petitioner - However,  Court is of the opinion that a writ to quash a summoning order is not maintainable - Court is not inclined to follow the orders passed by the Single Judge sitting in the Coordinate Bench, which do not constitute a binding precedent: High Court [para 4]

GST -   Petitioner seeks an order or direction in the nature of mandamus to respondent authority not to arrest to petitioner in pursuance of notice issued under section 70 of CGST Act and impose such and other condition which this Court deems fit and proper to protect the liberty of the petitioners as petitioners are ready to co-operate with the inquiry proceeding.

Held:  Court observes that the petitioner shall appear before the Authority summoning him for recording his statement - Petitioner shall not be detained in the office of the Commissioner, who is the summoning authority beyond the reasonable working hours - However, Court directs that before taking any steps to arrest, the Commissioner of CGST, Dehradun shall comply the provisions of sub-section (1) of Section 69 in letter and spirit - In other words, he must come to a definite conclusion that the petitioner has committed the offence as enshrined thereon, on the basis of credible materials and before authorizing any person to arrest the petitioner and the Commissioner must record the reasons and material that he took into consideration in authorising the officer to arrest him - A violation of this order shall be considered contempt of Court - Writ application is disposed of: High Court [para 4, 5]

- Application disposed of: UTTARAKHAND HIGH COURT

2022-TIOL-280-HC-AHM-GST

Ezzy Electricals Vs State of Gujarat

GST - Uploading of form GST ITC-01 - An error report was generated on the portal and the writ applicant was unable to file such Form - Bench had in its order dated 2 nd February 2022 [ 2022-TIOL-199-HC-AHM-GST ] viewed that the respondent No. 5 should find out some via media by which the writ applicant is able to upload the Form once again and seek refund of approximately Rs. 5 Lakh and the matter was posted on 16 February 2022 - On the hearing date, A.G.P. submitted that the department would definitely do the needful and see to it that the writ applicant is able to upload the Form ITC - 01 for the purpose of claiming the Input Tax Credit - It appears from the communication dated 11.10.2019 that the department tried to upload the ITC - 01, but due to technical glitch in the GSTN portal, the authority concerned was unable to upload the ITC - 01 - The authority, thereafter, inquired with the E.D.P. Cell Gujarat as to what can be done in the matter and the E.D.P. Cell Gujarat, in turn, asked the Assistant Commissioner to inform the GSTN through a Nodal Officer - The Assistant Commissioner had informed the Nodal Officer but nothing could be worked out.

Held: To a certain extent, the writ applicant also is at fault because while trying to upload the Form ITC-01, it appears that a wrong offline tool was used - Be that as it may, if the writ applicant is, otherwise, entitled to claim the Input Tax Credit under Section 18(1)(c) of the CGST Act, 2017, a technical glitch in the portal should not deprive him of such a claim - It was within the capacity of the department itself to resolve the controversy and see to it that the needful is done - Respondents are directed to do the needful and see to it that the writ applicant is able to claim the Input Tax Credit by uploading the Form ITC-01 - Exercise is to be undertaken at the earliest and completed within six weeks - Writ application stands disposed of: High Court [para 4, 5, 8]

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-279-HC-AHM-CUS

Hazel Mercantile Ltd Vs Chief CC

Cus - It appears from the materials on record that the writ applicant imported a consignment claiming that to be one of Naphtha - DRI expressed some doubts as regards the declaration made by the writ applicant that the goods imported is Naphtha - It is the case of the DRI that if the goods imported is not Naphtha then the same may be liable to be confiscated - DRI did not permit the writ applicant to clear the goods and drew samples of the goods for purpose of testing them - The first test report (out of five) of the sample drawn by the DRI certified that the sample is not Naphtha, but something else - Later all the test reports have certified the samples to be Naphtha - Petitioner inter alia seeks provisional release of the goods and compensation of Rs. 20 crores for the alleged illegality committed by the respondent.

Held: The picture that emerges, as on date, considering the test reports is that prima facie , the goods is Naphtha - Bench is of the view that since there are test reports indicating the goods to be Naphtha, the goods are to be released at the earliest on the condition that the writ applicant shall furnish a fresh bond of the amount equivalent to the value of the goods - if the DRI has any further doubts in the matter, it is always open for the DRI to proceed further with its inquiry in accordance with law - Insofar as waiver of demurrage charges are concerned, writ applicant is directed to make such request to the respondent No. 1 - Application stands disposed of: High Court [para 8, 9]

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-278-HC-MAD-CX

Saint Gobain Glass India Ltd Vs CCE

CX - During the period from June 2005 to September 2006, assessee availed credit of service tax paid on freight incurred for the outward transportation of the final products from factory to customers' premises and utilized the same for payment of duty on final products - Duty was paid on the basis of the price at factory gate, which did not include the above freight - SCN issued inter alia proposing to recover the credit amounting to Rs.1,73,53,490/- - demand confirmed, hence appeal.

Held: Issue involved herein has already been dealt with in Pricol Limited - 2019-TIOL-1815-HC-MAD-CX, wherein a Co-ordinate Bench of this Court, after following the decisions of the Supreme Court, namely, CCE v. Vasavadatta Cements Limited - 2018-TIOL-90-SC-CX , and CCE v. Andhra Sugars - 2018-TIOL-45-SC-CX , disposed of the appeal, by remitting the matter to the Tribunal for fresh consideration, in accordance with law, after hearing both the parties on the applicability of the two judgments of the Supreme Court - Order impugned herein is set aside and the matter is remanded to the Tribunal to decide the matter afresh: High Court [para 4, 5]

- Matter remanded: MADRAS HIGH COURT

2022-TIOL-277-HC-MAD-ST

INA Gopal And Constructions Vs Asstt. CGST & CE

ST - Petitioner submits that they have referred to the Division Bench decision in Nandhini Constructions - 2018-TIOL-1370-HC-MAD-ST , however, the respondent has ignored the same and confirmed the demand in the Impugned Order.

Held: Whether the petitioner is indeed entitled to the benefit of the cited decision or not would require a detailed consideration on facts, therefore, the petitioner should workout the remedy before the Appellate Commissioner by filing an appeal as is contemplated under the provisions of the Finance Act, 1994 by pre-depositing 7.5% of the disputed tax u/s 35F of the CEA, 1944 - In case such an appeal is filed and mandatory pre-deposit is made, the Appellate Commissioner shall consider and dispose the same on merits and in accordance with law within a period of four weeks - writ petition stands disposed of: High Court [para 6, 8]

- Petition disposed of: MADRAS HIGH COURT

2022-TIOL-176-CESTAT-DEL

Jindal Spinning Mills Ltd Vs CC

Cus - Appellant filed the refund claim - The Original Adjudicating Authority had sanctioned the refund claim, however, without any interest - Appellant preferred an appeal before Commissioner (Appeals) seeking entitled amount of interest also - However, Commissioner (Appeals) has remanded the matter back to Original Adjudicating Authority directing them to examine the claim of interest on merits and for issuance of speaking order with respect to interest claimed - Section 128A(3) of Customs Act, 1962 is apparently got amended by Finance Act - Amendment in these provisions has specifically taken away the power of remand to anymore be exercised by Commissioner (Appeals) to remand the case back to Adjudicating Authority - Commissioner (Appeals) was not at all entitled to, anymore be empowered to remand the matter back to adjudication authority on this score the order under challenge is set aside - Coming to second point of adjudication, refund claim was filed by appellant on 23.1.2020 - Same has been sanctioned by Department vide Order dated 29.7.2020 - Apparently, refund was sanctioned beyond the period of three months as provided under section 11B of Central Excise Act, 1944 - Section 11DD ibid deals with interest on the amount collected in excess of duty - The amount in question was deposited by appellant in year 2014, i.e., even prior to issue of SCN - The interest on delayed refund is payable after expiry of 3 months from the date of granting refund or from the date of communication of order of appellate authority, which are pari materia - As the Apex Court in case of Sandvik Asia Ltd. 2006-TIOL-07-SC-IT has answered the issue holding that the assessee is entitled to claim interest from the date of payment of initial amount till the date of its refund - Therefore, appellant is entitled to claim interest on delayed refund from the date of deposit till its realization - Further, interest on refund shall be payable @ 12% per annum as held by Kerala High Court in case of Sony Pictures Networks India Pvt. Ltd. 2017-TIOL-1102-HC-KERALA-CUS - Appellant was wrongly proposed with duty demand which was deposited by appellant even prior to the proposal for said demand - Said demand was later set aside holding the appellant to be entitled to Zero Duty EPCG authorisation - The deposit, therefore, was nothing but the deposit under protest - The order under challenge is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2022-TIOL-175-CESTAT-MUM

BA Continnum India Pvt Ltd Vs CST

ST - Issue arises for consideration is, whether the appellant had suo motu reversed excess CENVAT Credit taken under intimation to Revenue, which was admittedly never used, whether demand of said credit by impugned order along with order for recovery of interest and imposition of penalty under Sections 77 & 78 of Finance Act, 1994 is justified - Impugned order is under the teeth of Supreme Court as per the law laid down in case of Chandrapur Magnet Wires (P) Ltd. 2002-TIOL-41-SC-CX , wherein it has been held that the CENVAT Credit taken and which have been suo motu reversed without utilization, amounts to CENVAT Credit never to have been taken - There is clear distinction made in statute that interest is to be recovered only in case of utilization of CENVAT Credit taken wrongly - Appellant had given cogent explanation that the excess credit occurred due to system error - Further, appellant had reversed the credit suo motu under proper intimation to Department and also had their quantum of refund reduced proportionately - It is apparent that SCN is issued after more than three years from the date of reversal and its intimation to Department - Accordingly, impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2022-TIOL-174-CESTAT-AHM

Astron Zinc Industries Vs CCE & ST

CX - Assessee had filed a refund claim application for duty deposited during investigation of case and Pre-deposit made under Section 35F of Central Excise Act, 1944 - Assessee suo motu deposited amount of duty during investigation - The said amount become refundable consequent to Tribunal's order dated 12.01.2018 - Before this date, there was no reason for refunding amount even in terms of Section 11B ibid, if any, refund is arising out of the order of appellate authority - The relevant date for filing refund is within one year from the date of such order therefore, when refund itself was not arising before the Tribunal's order, there is no question of any interest - However, for entertaining the appeal, assessee is required to pay 7.5% or 10% as pre deposit in terms of section 35F ibid - If any assessee pays an amount more than that which is otherwise not required, no interest is accurable on amount over and above the mandatory pre deposit in terms of Section 35FF ibid - Therefore, demand of interest on refund over and above the mandatory pre deposit was rightly rejected: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT