I-T - Criminal prosecution of a company's director is unsustainable where mandatory requirement of first issuing notice is not complied with: HC

I-T - Penalty cannot be imposed before completion of assessment proceedings: HC

I-T -Penalty imposed u/s 271C merits being quashed where assessee is not found to be liable to withhold taxes in respect of year-end provision for expenses u/s 40(a)(ia): ITAT

I-T - Expenses incurred for import of capital asset cannot be equated with expenditure incurred for improvement of leasehold property & so cannot be treated as revenue expenditure : ITAT

I-T - Additions framed on account of employee's contribution to PF & ESI merits being set aside where such payment is made before due date of filing ITR : ITAT

I-T - Power of revision need not be exercised where AO takes one of several possible views in respect of the relevant issue: ITAT

I-T - Disallowance u/s 40A is not tenable where cash payment in question is made by assessee's agent & not by assessee himself: ITAT

GST - Summary of Order issued in Form GST DRC-07 without following the principles of natural justice - Order quashed - Petition succeeds: HC

GST - A person who has already paid a tax of Rs.12.76 lakhs on a consignment cannot be said to have an intent to evade tax amounting to Rs.11000/- - Mismatch of minor quantities cannot entail proceedings u/s 129: HC

CX - Refund - Plea of transfer of jurisdiction due to GST regime is not available to the appellant Revenue in view of s.142 read with s.2(48) of the Act, 2017: HC

CX - Adjudication - Expression 'where it is possible to do so' in s.11A(11) does not mean that the time prescribed can be extended perpetually - SCNs issued more than 11 years ago and lying unadjudicated are quashed: HC

Cus - When the statute does not provide any time-limit, the request for conversion of shipping bill cannot be rejected as time barred applying the Board Circular: CESTAT

2022-TIOL-384-HC-JHARKHAND-GST

Narsing Ispat Ltd Vs UoI

GST - Maintainability of petition - In the present case, the Proper Officer has issued the statement in Form GST DRC-01A upon the petitioner intimating him to pay the amount of tax ascertained along with the amount of applicable interest in full by 05.02.2020, failing which show-cause notice will be issued under section 73(1) - Petitioner instead of making the payment, filed a reply before the proper officer which has been acknowledged by the Respondent - However, no show-cause notice under section 73(1) was issued thereafter but instead, the Summary of the Order was issued in Form GST DRC-07 on 26.02.2020 indicating the amount of interest payable by the petitioner in terms of the adjudication order dated 26.02.2020 for the tax period in question - It is clear that though the petitioner did not pay the amount of tax and interest intimated to him in Form GST DRC-01A and instead submitted his reply thereto, the Respondent despite the stipulation contained in Form GST DRC-01 failed to issue any SCN upon petitioner u/s 73(1) of JGST Act, 2017 - When the petitioner had disputed the demand of interest intimated to him, the adjudication order could not have been passed without proper show-cause notice - Respondents have failed to follow the principles of natural justice and the procedure prescribed under section 73(1) of JGST Act before issuing the Summary of the Order in Form GST DRC-07 - Writ petition is, therefore, maintainable: High Court [para 12]

GST - Question for consideration is whether liability of interest under section 50 of JGST Act, 2017 can be raised without initiating any adjudication process under section 73/74 of the Act - An incidental question also arises, whether recovery proceeding under section 79 of the Act can be initiated for recovery of interest under section 50 of the Act without conclusion of adjudication proceeding under the Act.

Held: Summary of the Order has been issued upon the petitioner in Form GST DRC-07 on his GSTN portal without following the principles of natural justice - Respondents have failed to follow the procedure prescribed in law before issuing Summary of the Order in Form GST DRC-07 holding the petitioner liable to pay interest under section 50(1) of the Act due to late filing of GSTR-3B and not depositing the due interest on its own - As such, writ petition succeeds only on the point of failure to follow the principles of natural justice and the procedure prescribed in law - Summary of the Order contained in Form GST DRC-07 dated 26.02.2020 in the respective writ petitions relating to different tax periods in question are accordingly quashed - Respondents are at liberty to issue proper show-cause notice in terms of Section 73(1) of JGST Act, 2017 with opportunity to the petitioner to file response thereto before passing any adjudication order - It is open to the petitioner to raise the question of leviability of interest on delayed filing of GSTR-3B relying upon its plea that the amount of tax has been duly deposited in the Electronic Cash Ledger by the due date: High Court [para 14, 15, 16]

- Petitions allowed: JHARKHAND HIGH COURT

2022-TIOL-383-HC-P&H-GST

Raghav Metals Vs State of Haryana

GST - Form GST MOV-06 and Form GST MOV-07 was issued to the petitioner under Section 129 (3) of the Act – Petition filed against such action – It is the case of the respondent Revenue that by showing lesser quantity the petitioner intended to evade tax; that on physical verification, discrepancy was found in the actual quantity and the quantity shown in Invoice and e-way bill.

Held : It is clear that quantity of consigned goods is shown to be 10430.7 kilograms - An amount of Rs.1276717.68 has been paid as tax on the consignment whereas as per the State, it was 10520 kilograms - The said difference in weight is less than 1% - As per State, the alleged evasion shall not be more than Rs.11000/- - It cannot be said that the petitioner had any intent to evade the tax or the mismatch in the quantities is of such nature which shall entail proceedings under Section 129 of the Act - A person, who has already paid a tax of Rs.1276717.68 on a consignment cannot be said to have an intent to evade tax amounting to Rs.11000/- - Petitioner submits that they are ready to pay even the tax and penalty imposed by the State-Authorities which comes to be around Rs.22000/- - The mismatch cannot be termed as contravention of the provisions of the Act - Proceedings against the petitioner under Section 129 of the Act are hereby quashed – Petition allowed: High Court [para 9, 10]

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

2022-TIOL-382-HC-P&H-CX

CCE Vs Riba Textiles Ltd

CX - CESTAT vide order dated 7th January, 2020 held the Assessee entitled for interest on delayed refund from the date of deposit till its realization thereof - ROM application filed by Revenue was also dismissed vide order dated 30th December, 2021 - Consequently Revenue is in appeal before the High Court and inter alia contends that the respondent/Assessee impleaded wrong authorities for claim of refund and interest.

Held: Claim for refund in the present case was filed on 6th January, 2016 which was returned and again filed on 19th April, 2017 - Section 142 of the CGST Act deals with miscellaneous transitional provisions including the claim for refund filed by any person before, on or after the appointed day for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law - The provision explicitly provides that every claim of refund shall be dealt under the existing law i.e. Central Excise Act, 1944 and not by the provisions of the Act, 2017 - Plea of transfer of jurisdiction due to GST regime is not available to the appellant Revenue in view of Section 142 of the Act read with Section 2(48) of the Act - While deciding the issue of interest, Tribunal has relied upon the law laid down by the Apex Court in Sandvik Asia Ltd vs. CIT, Pune = 2006-TIOL-07-SC-IT - It is not disputed that the provisions of Income Tax Act, 1961 and Central Excise Act, 1944 are pari materia and, therefore, law laid down by the Supreme Court shall be applicable to the present case - Revenue appeal dismissed: High Court [para 7 to 9]

- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT

2022-TIOL-381-HC-P&H-CX

Shree Baba Exports Vs CGST & CE

CX - Petitioners are seeking writ in the nature of certiorari for quashing of Show Cause Notices issued to them more than 11 years ago and still lying un adjudicated - Counsel for Revenue has relied upon the aforesaid Circular No. 1053/02/2017-CX dated 10.03.2017 to state that the matters have been transferred to the Call Book in terms of the circular and thus, non-adjudication of the Show Cause Notice cannot be said to be illegal.

Held : It is clear that in Section 11A(11) of the CEA, 1944, the legislature has prescribed a time limit and the Authority(s) are duty bound to abide the same - The expression "where it is possible to do so" does not mean that the time prescribed can be extended perpetually - The time limit cannot be taken to be directory except in a case where the Authority has a reason to offer as an explanation for extending the said time limit - In the present case, no explanation has been offered in the written statement which can be held to be a plausible explanation for not adjudicating upon the Show Cause Notice within the time prescribed - present writ petitions are allowed - Show Cause Notices impugned in the present writ petitions, issued to the petitioners more than 11 years ago, are hereby quashed: High Court [para 13, 15]

- Petitions allowed: PUNJAB AND HARYANA HIGH COURT

2022-TIOL-229-CESTAT-KOL

Paradip Port Trust Vs CCGST & Excise

ST - The assessee is in appeal against impugned order, whereby demand of service tax has been confirmed under category of Declared Service under Section 66E(e) of Finance Act, 1994, for the period 2013-14 as proposed in SCN - The Tribunal in case of South Eastern Coalfields Limited 2020-TIOL-1711-CESTAT-DEL has examined in detail the provisions of Declared Service under Section 66E(e) of FA, 1994, which was introduced in Negative List based regime effective from 01.07.2012 - The Tribunal came to a conclusion that by collecting the penal amount, it is not the intention of assessee to tolerate non performance of obligation which was cast upon him as per the commercial contract entered by assessee with other party - Rather it was the intention of assessee that the other party should comply with contractual obligations and penal amount was charged only to deter the other party from violating contractual terms - The said decision of Tribunal is squarely applicable in instant case, wherein the amount collected by appellant by encashment of Bank Guarantee for shortfall of quantity as against Minimum Guarantee Tonnage (MGT) as per scheme cannot be said towards tolerating any act or a situation on the part of appellant and thus, there is no rendition of Declared Service under Section 66E(e) by assessee - Hence, impugned demand cannot be sustained and is thus set aside - Penalty imposed on appellant is also set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2022-TIOL-228-CESTAT-MUM

Murli Industries Ltd Vs CCE

CX - Appellant submits that Resolution Plan dated 20.12.2017 in case of their company was prepared by Resolution Professional and approved by NCLT - Revenue had also made its claim before the Resolution Professional - The Deputy Commissioner, CGST & Central Excise, who was concerned with, also made his claim before Resolution Professional in respect of confirmed demands - All these demands were taken into consideration while approving Resolution Plan - This Resolution Plan has been approved by NCLT and the appeal filed against the order of NCLT was dismissed by NCLAT - This order of NCLAT has been accepted by Revenue - In view of decision of Supreme Court in case of Ghanashyam Mishra & Sons , this appeal becomes infructuous and same is accordingly abated in terms of Rule 22 of CESTAT (Procedure) Rules, 1982: CESTAT

- Appeal abated: MUMBAI CESTAT

2022-TIOL-227-CESTAT-MAD

Visoka Engineering Pvt Ltd Vs CC

Cus - The appellant is aggrieved by rejection of their request for conversion of free shipping bills to advance authorization shipping bills - The period involved in these shipping bills are after the amendment of section 149 of Customs Act, 1962 w.e.f. 1.8.2019 - The amended provision states that the proper officer can allow amendment of a document if presented within such time, subject to restriction and conditions as may be prescribed - However, so far there is no notification issued prescribing time limit or stipulating any conditions for amendment of shipping bill - The department has relied upon Board Circular 36/2010 - The said Circular being issued much prior to the amendment of section 149 of Customs Act, 1962, same cannot be applied to reject the request for conversion of shipping bill, when the Courts and Tribunal has repeatedly held that when the statute does not provide any time limit, the request for amendment cannot be rejected as time barred applying the Board Circular - The second ground for rejection for conversion of free shipping bills is that the goods exported have not been physically examined - There is no requirement under section 149 of Customs Act, 1962 that the conversion can be allowed only if the goods have been subjected to physical examination - Therefore, rejection of request for conversion of free shipping bills to Advance Authorization shipping bills are not justified - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT