I-T - High Courts entertain appeals only if any substantial question of law is involved & not where issue involved is purely factual : HC

I-T - Reasons to believe for re-assessment must be based on reasonable grounds rather than suspicions or conjectures: HC

I-T- Interest income earned from surplus fund cannot qualify as income from business and profession as none of objectives of assessee trust is about carrying out any business or profession : ITAT

I-T- Onus is on assessee to establish its contention by producing primary documents : ITAT

Cus - Bench is disturbed that inspite of specific directions, samples not sent for test - CRCL, Delhi should be requested to verify whether samples are of GTL Light Paraffin or LDO: HC

GST - Refund rejected on the ground that the supplier was reported as 'risky' - Order does not convey much, hence set aside and matter remanded: HC

GST - Jt. Commr . has either not read the judgment sought to be relied upon or was not able to understand it - Counter affidavit filed in complete disregard to statutory mandate of s.75(4) - Cost imposed: HC

GST - Commissioner shall ensure that principles of natural justice is followed by Proper Officers/Assessing Authorities in the State of Uttar Pradesh: HC

GST - GSTR-1 amendment - Ticking of 'Deemed Export' column - Respondents to process request without subjecting it to restriction given in proviso to s.37(3): HC

GST - Litigation could have been easily avoided had the authority concerned applied its mind: HC

GST - Refund of IGST paid in regard to goods exported i.e. 'Zero Rated Supplies' has been correctly sanctioned and paid to his client with 9% interest: HC

GST - If applicants deposit the amount towards tax and penalty with respondent, then the goods and conveyance shall be released at the earliest: HC

GST - Goods and conveyance are ordered to be released subject to applicant filing an appropriate undertaking in writing on oath and also, by executing a bond of amount that may be levied towards fine in-lieu of confiscation: HC

ST - IPL player - Demand under BAS cannot sustain as brand endorsement/brand promotion services were made taxable w.e.f 1st July 2010: CESTAT

Cus - In the absence of entrustment of functions under section 6 by Government, officers of DRI will not have jurisdiction to exercise the functions under Customs Act: CESTAT

CX - No penalty is imposable on appellants for wrongly availing Cenvat credit on input services: CESTAT

ST - Merely because the appellant is still registered under Companies Act and has not get said registration cancelled does not mean that they are carrying out business activity: CESTAT

2022-TIOL-456-HC-DEL-GST

Richie Rich Exim Solutions Vs CCGST

GST - Petitioner filed an application for refund of Rs.98,54,248/-, which included CGST, SGST and cess, with respect to exports of goods/services - Upon a show cause notice being issued by the respondent, the petitioner filed its reply on 23.12.2020 - Respondent has been unable to discharge the onus as to whether the hearing in the matter was fixed on 29.12.2020 and, therefore, since the respondent was mandatorily required to grant reasonable opportunity to the petitioner before rejecting its application for refund, there has been a breach of the principles of natural justice - The only ground given while rejecting the refund was that the supplier of the petitioner was reported as "risky" and which does not convey much - Impugned order is set aside - Respondent shall hear the petitioner and pass a speaking order within two weeks after the personal hearing has concluded - Petition disposed of: High Court [para 8.1, 9, 11]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-455-HC-AHM-GST

Uni Well Exim Vs State of Gujarat

GST - Petitioner is engaged in the business of trading of tobacco - In the matter of the refund claim filed by the petitioner, a SCN came to be issued proposing  to reject the refund application essentially on the ground that the documents in the form of the purchase order received from the foreign buyer, copy of insurance, proof of outside supplies and the bank statement of each account maintained in different banks were not furnished - The petitioner furnished the documents and filed a reply, however, a final order came to be passed by the authority concerned in the Form GSD RFD-06 rejecting the application filed by the firm for refund of the ITC - Aggrieved the present writ-application. Held: Impugned order in the Form GSD RFD-06 deserves to be quashed and set aside on the sole ground that the impugned order travels beyond the scope of the show-cause notice - Inasmuch as in the impugned order, the authority concerned has gone into minutest of the details of the transactions of the writ-applicant–firm with the other companies; found them to be doubtful and in such circumstances, the authority thought it fit to reject the claim of the writ-applicant - In the show-cause notice, all that has been stated is that few relevant documents have not been furnished and in the absence of those, it was not possible for the authority to process the application for the refund of the ITC - There is not a single allegation beyond this in the show-cause notice - Upon the documents being furnished by the writ-applicant and while going through those documents, if the authority had any doubts with respect to all such transactions, it was expected of the authority to once- again give an opportunity to the writ-applicant to explain all such alleged dubious transactions - The authority could not have straightway proceeded to pass the impugned order incorporating all the details and taking the writ-applicant – firm by a surprise - This litigation could have been easily avoided had the authority applied its mind - Impugned order is quashed and set aside  and  the matter is remitted to the authority concerned - Fresh SCN to be issued and the entire exercise is to be completed within three months: High Court    [para 5, 6, 8]

- Matter remitted: GUJARAT HIGH COURT

2022-TIOL-454-HC-AHM-GST

Swastik International Vs UoI

GST - Issue relates to r efund of IGST paid in regard to goods (Agro Food Products & Species) exported i.e. 'Zero Rated Supplies' - When the matter was taken up for hearing, petitioner made a statement that this application need not now be adjudicated on merits as the refund has been sanctioned and paid to his client with 9% interest - In view of the same, application is disposed of: HC

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-453-HC-AHM-GST

Shanti Metal Industries Vs State of Gujarat

GST - The subject matter of challenge is to legality and validity of proceedings initiated by respondent in Form GST MOV - 10 - It is the case of respondent that the intent on the part of applicants was to evade payment of tax - Respondent has called upon the applicants to show cause as to why the goods and the conveyance should not be confiscated under Section 130 of the Act - The adjudication of application may take some time - By way of an interim order, it is directed that if applicants deposit the amount of Rs.15,46,182/- towards tax and penalty with respondent, then the goods and the conveyance shall be released at the earliest: HC

- Matter listed: GUJARAT HIGH COURT

2022-TIOL-452-HC-AHM-GST

Screenotex Engineers Pvt Ltd Vs CCGST

GST - GSTR-1 - ticking of the 'Deemed Export' column - The department permitted the writ applicant No. 1 to amend the GSTR-1 with respect to all the nine invoices however, for some reason or the other, the writ applicant No. 1 was in a position to amend only four such invoices - Writ Applicant is, therefore, before this Court as he is not able to amend the remaining five - In the peculiar facts and circumstances of the case, Bench is inclined to grant one last opportunity to the writ applicant to get his GSTR-1 with respect to all the five invoices amended for one last time - Respondents are directed to process the request of the writ applicant No. 1 for carrying out amendment in its GSTR -1 returns pertaining to the respective months in 2019 and are granted liberty to undertake necessary exercise to verify the same with the recipient as well - Respondents are directed to process the request of the writ applicant for amendment without subjecting it to the restriction given in the proviso to Section 37 (3) of the CGST Act, 2017 - Petitions disposed of: High Court [para 9 to 11, 13]

- Petitions disposed of: GUJARAT HIGH COURT

2022-TIOL-451-HC-AHM-GST

Metallek Trading Pvt Ltd Vs State of Gujarat

GST - The Company is engaged in business of wholesale trading of scrap - It is the case of applicant that it generated tax invoice for the value of goods and the same was handed over to transporter - While the goods were in transit, same came to be detained - The physical verification of goods was also carried out - Ultimately, a notice in Form GST MOV-10 came to be issued calling upon the applicant to show-cause as to why the goods and conveyance should not be confiscated under Section-130 of the Act - The matter as on date is at the stage of MOV-10 - It is open for the concerned Department to proceed further with confiscation proceedings - However, court is inclined to order release of goods and the conveyance since the applicant has deposited an amount by a Challan towards penalty - This is 200% of the tax amount - Let the goods and conveyance be released subject to applicant filing an appropriate undertaking in writing on oath to the satisfaction of authority concerned and also, by executing a bond of the amount that may be levied towards fine in-lieu of confiscation: HC

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-450-HC-ALL-GST

Bharat Mint And Allied Chemicals Vs CCT

GST - Petitioner submits that the impugned assessment order creating demand of tax, interest and penalty, has been passed without affording opportunity of hearing contemplated in Section 75(4) of the Act 2017 and thus, the impugned order being patently in breach of principles of natural justice, is unsustainable and deserves to be quashed. Held: It is evident that opportunity of hearing has to be granted by authorities under the Act, 2017, where either a request is received from the person chargeable with tax or penalty for opportunity of hearing or where any adverse decision is contemplated against such person - Thus, where an adverse decision is contemplated against the person, such a person even need not to request for opportunity of personal hearing and it is mandatory for the authority concerned to afford opportunity of personal hearing before passing an order adverse to such person - Counter affidavit filed by respondent Revenue taking the stand that no opportunity of hearing is required before passing the assessment order has been filed by an Officer of the rank of Joint Commissioner, Corporate Circle Commercial Tax, Bareilly who has either not read the aforesaid judgment of Supreme Court [ Union of India and Others Vs. M/s. Jesus Sales Corporation = 2002-TIOL-259-SC-CUS ] sought to be relied upon or was not able to understand it and in a casual manner the counter affidavit has been filed in complete disregard to the statutory mandate of Section 75(4) of the Act 2017 - Legislative mandate of Section 75(4) of the Act has been completely violated by the respondents while passing the impugned order - Stand taken by the respondents in the counter affidavit that the writ petition is not maintainable as the petitioner has an alternative remedy of appeal under Section 107 of the Act, can also not be accepted inasmuch as it is settled law that availability of alternative remedy is not a complete bar to entertain a writ petition under Section 226 of the Constitution of India - Even though there may be an alternative remedy, yet the High Court may entertain a writ petition depending upon facts of each case - Impugned order cannot be sustained and is hereby quashed - Liberty is granted to the respondents to pass an order afresh in accordance with law, after affording opportunity of personal hearing to the petitioner - Writ petition is allowed to the extent indicated above with cost of Rs.10,000/- - Copy of this order be sent to the Commissioner, Commercial Tax U.P. Lucknow who shall ensure that principles of natural justice as contemplated under Section 75(4) of the CGST/ UPGST Act 2017 is followed by Proper Officers/Assessing Authorities in the State of Uttar Pradesh: High Court [para 9, 11, 12, 13, 15, 17, 19, 20]

- Petition allowed: ALLAHABAD HIGH COURT

2022-TIOL-457-HC-AHM-CUS

FSL 10 Pte Ltd Vs CC

Cus - controversy is with regard to the exact natu re of the product - It is the case of the writ applicants that the product is GTL Light Paraffin, HSN Code: 27101990, whereas the case of the Revenue is that what has been imported is Light Diesel Oil - There is a specific direction from this Court in the form of an order dated 03.03.2022 to forward the samples for retest yet, till this date the samples have not been forwarded - There is no explanation offered by the Officer as to why the order passed by this Court has not been complied with till this date - Bench would like to give one last opportunity to the DRI - Samples to reach CRCL, New Delhi tomorrow and CRCL shall give top priority and carry out the test and forward its report within one week from the date of receipt of the samples - When the samples are dispatched tomorrow to the CRCL, Delhi, for retest, it should be dispatched with a letter requesting the CRCL, Delhi, to verify whether the samples are of GTL Light Paraffin or it is Light Diesel Oil - Matter is posted for further hearing on 21.04.2022: High Court [para 5, 9, 10, 11]

- Matter posted: GUJATAT HIGH COURT

2022-TIOL-273-CESTAT-BANG

Bharat Chipli Vs CCE & ST

ST - Based on the agreement between players and franchisee and MOU between M/s. United Breweries Limited UBL) and M/s. Royal Challengers Sports Private Limited (RCSPL), it was alleged that the appellant had provided the services of promotion or marketing of goods/services by engaging himself in carrying advertising, promotional activity, team endorsement provided by M/s. RCSPL/franchisee/co-sponsors and hence, the same was taxable under Business Auxiliary Services (BAS) in terms of Section 65(105)(zzb) of the Finance Act, 1994 - Demands were raised for the period 2008-09 and 2009-2010 and the same were confirmed along with imposition of penalties and interest by the lower authorities - Aggrieved, appellant is before the CESTAT.  Held: Issue is no more res integra as the very same issue was considered by the  Kolkata Bench of the CESTAT in the case of Sourav Ganguly - 2020-TIOL-1687-CESTAT-KOL and wherein it has been held that the activity of the appellant therein could not be subjected to levy of service tax under Business Auxiliary Service prior to July 1st, 2010 since  brand endorsement/brand promotion services were made taxable w.e.f July 1, 2010 by introducing sub-clause (zzzzq) in section 65(105) of the Finance Act, 1994  - Following the ratio of the said decision, Bench holds that there is no liability on the appellant and hence, demands raised for both the periods cannot sustain - Impugned order is set aside and the appeal is allowed with consequential benefits: CESTAT [para 4, 5] 

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-272-CESTAT-BANG

Infosys Bpo Ltd Vs CCE & ST

ST - The assessee, a 100% software Export Oriented Unit engaged in providing services relating to information technology - Period of dispute is July 2006 to March 2007 - Assessee filed an application claiming refund of unutilised cenvat credit - Almost all input services used by assessee have been considered by various Benches as well as higher judicial fora - Larger Bench of Tribunal in case of Span Infotech (India) Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB has held that insofar as refund claims under Rule 5 ibid are concerned, same have to be taken as the end of the quarter in which FIRCs received, if refund claims are filed on a quarterly basis - Even the jurisdictional High Court of Karnataka has considered a similar issue in case of Suretex Prophylactics India Pvt. Ltd. 2020-TIOL-917-HC-KAR-CX - In view of said ruling of jurisdictional High Court, Department's appeal lacks merit - Denial of refund cannot be sustained for which impugned order is set aside: CESTAT

- Assessee's appeal allowed: BANGALORE CESTAT

2022-TIOL-271-CESTAT-KOL

Agarwal Graphic Machinery Pvt Ltd Vs CC

Cus - The importer imported used 4-colour and 5-colour offset printers and cleared them through Kolkata port - Officers of DRI searched the godown-cumoffice premises of importer in Delhi and recovered several documents and a computer - A SCN was issued proposing to reject declared assessable value, re-assess the duty leviable and recover differential duty under section 28 from importer along with interest and further proposing to impose penalties upon importer, Directors of importer and two Chartered Engineers - Undisputedly, since the assessment was done by assessing officers in Custom House, such officer who did the assessment or his successor in office is the proper officer and ADG DRI cannot be the proper officer and has no jurisdiction to issue SCN demanding duty under section 28 - Other person appointed as Customs officers under section 4(1) may be a proper officer by virtue of Section 28(11) but he/she must also be 'the proper officer', i.e., he/she must have had done the original assessment under section 17 in that case to be competent to issue an SCN under section 28 - Secondly, as far as DRI officers is concerned, since the Government has not entrusted any functions under section 6 of Customs Act, they could not have performed such functions - Therefore, all the functions of officers of DRI under Customs Act in this case which culminated in the issue of SCN viz., searches, summons, recording of statements under Customs Act are also vitiated - Therefore, neither those activities of officers of DRI under the Customs Act nor the SCN into which they culminated can be upheld - It was clarified by Supreme Court in M/s. Suncity Strips and Tubes Pvt Ltd. that in the absence of entrustment of functions under section 6 by Government, officers of DRI will not have jurisdiction to exercise the functions under Customs Act - The impugned order is set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT

2022-TIOL-270-CESTAT-MUM

Ambuja Cements Ltd Vs CCE & ST

CX - The issue involved is about penalty under Rule 15 of CCR, 2004 on the appellant for taking cenvat credit on service tax paid on 'input services' for transporting Furnace Oil to the plant for generation of electricity for supplying to residential colony, which was denied to appellant by department as it was not used for manufacture of excisable goods - Since the issue is only about penalty of Rs.1,41,541/- imposed on appellants for wrongly availing Cenvat credit on input services therefore Tribunal is not going in other details of the matter - Following the law laid down by Supreme Court in matter of Maruti Suzuki Ltd. 2009-TIOL-94-SC-CX and the decision of Tribunal in Ultratech Cement Ltd. , no penalty is imposable on appellants for wrongly availing Cenvat credit on input services: CESTAT

- Appeal allowed: MUMBAI CESTAT

2022-TIOL-269-CESTAT-MUM

Lehman Brothers Securities Pvt Ltd Vs CCT, CE & ST

ST - The issue involved is, whether the appellants are entitled for refund claim of Service Tax paid by them 'under protest' under Reverse Charge Mechanism for legal consultancy services received by them for winding up of their business - The appellant were into Business Auxillary Services, Management or Business Consultancy Services and were paying Service Tax under Reverse Charge Mechanism for the legal consultancy service - The Commissioner has specifically recorded in impugned order that there is no dispute that the appellant have stopped their business activity and are in the process of winding up - But Still an apprehension has been recorded by Commissioner that the appellant 'can' carry out activity related to their business as they have not surrendered their registration under Companies Act, 1956 and therefore they fall under preview of definition of 'business entity' - Said apprehension is totally unfounded as neither any document has been placed on record to show that appellant indulged in any business activity during last so many years nor it is mentioned in SCN or in any of the case records that appellant had earned any profit from their business activity during these years - Appellant cannot be saddled with any tax liability only on the basis of apprehension - It is the case of appellant, which has not been denied anywhere by revenue, that they have discharged their employees also at the time of closure of business - Impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT