CX - Whether statement recorded u/s 14 is to be 'admitted' as evidence in compliance of s.9D or is to be held per-se admissible in light of s.24 of Indian Evidence Act - Difference of opinion: HC

GST - Limitation - To tide over situations like force majeure, new provision s.168A inserted - delay in filing appeal ought to be condoned: HC

GST - Documents relied upon to reject application for revocation of cancellation of registration certificate not provided to petitioner - Order quashed and matter remanded: HC

ST - Statute does not provide for waiver of pre-deposit - Court cannot act contrary to legislative intention merely on the plea of financial hardships: HC

GST - Membership fee, annual subscription fee and annual games fee collected from members of club is liable to tax: AAR

2022-TIOL-429-HC-ORISSA-GST

Basanti Shial Vs Proper Officer Addl. CT & GST Officer

GST - Having received the Order passed under Section 74 of the OGST Act on 06.03.2020, the petitioner filed the appeal on 13.11.2020 which is beyond the period stipulated under sub-sections (1) and (4) of Section 107 - Consequently, the appellate authority rejected the appeal on the ground of limitation by also rejecting the application for condonation of delay - Petition filed against this order.

Held: The petitioner is entitled to avail the benefit of the Judgment in Cognizance for Extension of Limitation = 2022-TIOL-04-SC-MISC-LB read with the terms of disposal contained In re: Cognizance for Extension of Limitation = 2021-TIOL-122-SC-MISC-LB - Central Government as also the State Government in line with the Judgment of the Supreme Court have issued Orders/Notifications/ Circulars giving relaxation to the taxpayers for various compliances under the GST Laws - Clarification as issued by the Central Government and adopted by the State Government seems to be gesture of pragmatic approach to mitigate hardship of concerned during the unforeseen pandemic - When the OGST Act was enacted in 2017, in order to tide the situation like force majeure, appropriate legislation was not in place, however, conceiving the gravity of circumstances that prevailed over entire world and visualizing insurmountable difficulties faced by human beings, new provisions (s.168A) by way of amendment to the OGST Act have been inserted in tune with the provisions of the Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020 and the Taxation and other Laws (Relaxation of Certain Provisions) Act, 2020 - Keeping in view the concern and context reflected in the Judgments, amendments to the statute and executive instruction/clarification, it is apt to say that the petitioner having filed appeal on 13.11.2020 before the Appellate Authority upon receipt of the Order in Form GST DRC-07 in terms of Rule 142(5) of the OGST Rules in connection with Section 74 of the OGST Act on 06.03.2020, the delay caused should have been condoned by the Appellate Authority - Writ petition is allowed and the Order dated 31.12.2020 passed by the Additional Commissioner of State Tax (Appeal), Balasore -Appellate Authority is set aside - As a consequence, the Appellate Authority is directed to restore the First Appeal to file and adjudicate the issues raised on merits by adhering to the principles of natural justice in accordance with law, if the appeal is free from other defects - Petition disposed of: High Court [para 13, 14, 16, 17, 18]

- Petition disposed of: ORISSA HIGH COURT

2022-TIOL-428-HC-KOL-GST

Pavati Trading Pvt Ltd Vs Deputy Commissioner of State Tax

GST - Petitioner's grievance is that the impugned order of rejection of application for revocation of cancellation of registration is in violation of principles of natural justice since in Paragraph 3 of the aforesaid impugned order the documents or records relied upon by the respondent, were never provided to enable the petitioner to contradict the said report - Counsel for Revenue is not in a position to deny this fact of non-furnishing of the copy of those reports referred in the aforesaid impugned order.

Held: Bench is inclined to dispose of the writ petition by setting aside the impugned order with the direction to respondent No.1 to consider afresh and dispose of the petitioner's application in accordance with law and by passing a reasoned and speaking order after giving opportunity of hearing within four weeks and also to provide the documents - Court clarifies that it has not gone into the merits of the case: High Court

- Petition disposed of: CALCUTTA HIGH COURT

2022-TIOL-37-AAR-GST

Poona Club Ltd

GST - Membership fee, annual subscription fee and annual games fee collected from members of club is liable to tax under CGST/SGST Act - Notification No. 39/2021-Central Tax dated: 21st December, 2021 has been issued whereby the Central Government has appointed the 1st day of January, 2022, as the date on which the provisions of sections 108, 109 and 113 to 122 of the said Act shall come into force, therefore, the relevant amendment has been notified by the Central Government – Inasmuch as amendment to Section 7 of the CGST Act, 2017 brought about by s.108 of the FA, 2021 has been notified w.e.f 01.01.2022: AAR

- Application disposed of: AAR

2022-TIOL-430-HC-JHARKHAND-CX

Bihar Foundry And Casting Ltd Vs CCE

CX - Clandestine removal - Even if statement of Managing Director recorded under Section 14 of the C.E.A. 1944 is taken on its face value, they were never admitted in evidence by the Adjudicating Authority in compliance of the provisions of Section 9D of the Central Excise Act 1944 - That it is unsafe to uphold the findings rendered by the Adjudicating Authority, as upheld up to the Tribunal simply on the basis of deposit of certain amount by the Assessee even before issuance of the show-cause notice in a situation where the Assessee has contested the findings of the Adjudicating Authority up to the learned CESTAT and has questioned the decision of the learned Tribunal in the instant appeal preferred under section 35-G of C.E.A, 1944 - In the present case, no such tangible corroborative evidence of clandestine removal of excisable goods as non-excisable goods were seized and recovered except the statement of the Managing Director of the Company made under section 14 of the Act and certain notings in the private diary - Such statement of the Managing Director of the Company for being used against the Appellant Company, had not been subjected to scrutiny under section 9D(1)(b) of the Act either, therefore, the facts of the present case portray a totally different picture, where the Respondent Department has not been able to produce any tangible corroborative evidence of such clandestine removal of goods even after inquiry / investigation and search on the premises of the buyers of the Appellant Company; that the order of Tribunal cannot be sustained and is set aside - Appeal allowed: High Court [para 37, 61, 63]

Dissenting view

CX - Clandestine removal - Statement of the Managing Director recorded under Section 14 of the Act of 1944 could be relied upon and treated as a relevant piece of material while issuing the show-cause notice to the Managing Director as well as the appellant company and the same could be relied upon without calling upon the Managing Director to again depose as a witness before the adjudicating authority in terms of Section 9D(1)(b) read with Section 9D (2) of the Act of 1944 - Statement recorded under Section 14 is per-se admissible in evidence by the adjudicatory authority under Central Excise Act, 1944 subject to scrutiny by the adjudicating authority in the light of Section 24 of the Indian Evidence Act - No material before the adjudicating authority to discard the statements in the light of Section 24 of the Evidence Act - Order of differential duty and penalty against the appellant company is directly and inseparably linked with imposition of penalty upon its Managing Director and both, the company as well as the Managing Director, have been found guilty of clandestine removal of the goods of the company on account of common foundational facts on record - Managing Director of the company has chosen to file this appeal on behalf of the company but has accepted the order of penalty passed against him and accordingly the factual basis of the order of penalty on account of clandestine removal of company's goods has been accepted by the Managing Director in his individual capacity also - Order of penalty against the Managing Director which has attained finality, can certainly be used against the appellant company and has an important bearing in the matter - No merit in the appeal, hence dismissed: High Court [para 119 to 121, 156, 157]

Reference to appropriate Bench for Majority decision: Since there is a difference of opinion amongst the Members of the Bench on all the substantial questions of law framed for adjudication, the matter is to be placed before Chief Justice for placing it before the appropriate Bench in terms of Section 35-G(8) of Central Excise Act, 1944: High Court [para 159]

- Difference of opinion - Matter referred: JHARKHAND HIGH COURT

2022-TIOL-427-HC-KERALA-ST

Swathi Constructions Vs CCGST & CE

ST – Appeal to CESTAT - It is contended that the pre-deposit payable as contemplated u/s 86 of the Finance Act, 1994, in the instant case was Rs.18,06,057/- and that with all bonafide, petitioner deposited an amount of Rs.12,50,000/- leaving Rs.5,56,057/- as balance unpaid towards the pre-deposit - Since the petitioner found it financially impossible to make the balance of the mandatory pre-deposit, he has approached this Court seeking relief from such a pre-deposit.

Held: After the amendment to section 35F of the Central Excise Act r/w Section 86 of the Finance Act, 1994 came into force on 06.08.2014, no discretion is available with the courts of law to waive the mandatory requirement of pre-deposit of 7.5% even if it is assumed to be onerous in the circumstances of the case - When the Statute does not provide for waiver of a pre-deposit, it is impermissible for this Court to act contrary to the legislative intention merely on the plea of financial hardships - If such pleas are entertained, and directions are issued for waiving the pre-deposit, there will be no end to such demands - Further if orders are issued, contrary to the Statute the same will destroy the very scheme of the Statute including the consequent amendment - No merit in this writ petition and the same is dismissed - However, liberty is granted to the petitioner to make the balance of the pre-deposit within a period of one month and if so made the Tribunal will consider and dispose of the appeal on merits: High Court [para 8, 10]

- Petition dismissed: KERALA HIGH COURT