2022-TIOL-544-HC-DEL-IT

Digvijay Jain Vs UoI

In writ, the High Court finds that the proceedings u/s 153A are indeed time barred and hence are rendered invalid insofar as commenced after the due date.

- Writ petition allowed: DELHI HIGH COURT

2022-TIOL-543-HC-MAD-BENAMI

V Vasanthakumar Vs UoI

Whether a constitutional court can declare a provision to be unconstitutional, but it should not give any direction to the Legislature to make an amendment in a particular way - YES: HC Whether Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 is unconstitutional - YES: HC

- In favour of petitioner: MADRAS HIGH COURT

2022-TIOL-542-HC-AHM-IT

Rameshkumar Ramchandra Jaju Vs DGIT

In writ, the High Court directs the Revenue authorities concerned to consider the assessee's application within 15 days' time and pass assessment order after granting opportunity of personal hearing to the assessee, if found to be necessary.

- Writ petition disposed of: GUJARAT HIGH COURT

2022-TIOL-541-HC-TELANGANA-IT

Nava Bharat Energy India Ltd Vs DCIT

In writ, the High Court observes that the AO had overlooked certain amount of TDS credit while carrying out the rectification. Hence the Court directs the AO to pass fresh rectification order after taking into account such TDS credit.

- Writ petition disposed of: TELANGANA HIGH COURT

GST - Delay in granting refund - Only in respect of cases covered by proviso to Section 56, interest payable would be 9 per cent - High Court was in error in awarding interest at the rate exceeding 6 per cent: SC

Cus - Inculpatory statements confirm that Petitioner Company indulged in fabrication of documents to evade customs duty - Petition dismissed but liberty granted to file appeal: HC

Cus - Delay in granting drawback - Delay is not on account of petitioner failing to file any documents - Interest to be paid @7.5%: HC

GST - If credit was validly transmitted in the earlier VAT regime, the same shall be allowed to be transitioned in the present regime: HC

GST - No useful purpose will be served by not allowing persons like petitioners to revive their registration and integrate them back into the mainstream: HC

GST - If authorities have accepted that there was an error and resultantly, accepted repayment of erroneous refund, as a corollary, credit of ITC must be restored: HC

ST - When adjudicating authority accepts the claim of appellant and allowed a partial refund, different reason or logic cannot be adopted for rejecting the other part of same predeposit : CESTAT

ST - Assessee's claim for refund of their 'deposit' lying unutilized in their PLA is perfectly valid, which being not a duty, time limit prescribed under Section 11B ibid could not apply: CESTAT

CX - Mere non-filing of declaration cannot be the reason that appellant's option for proportionate reversal is not there, proportionate credit rightly reveresed along with payment of interest: CESTAT

CX - The credit on warranty service provided free of cost during the warranty period through third parties cannot be denied: CESTAT

Cus - Since the disputed matter in appellant's own case is pending before Gujarat High Court, matter needs to be re-considered on the basis of outcome of decision of Gujarat High Court: CESTAT

2022-TIOL-42-SC-GST

UoI Vs Willowood Chemicals Pvt Ltd

GST - Refund - Sections 54, 56 of CGST Act, 2017; rules 91, 94 and 96 of the CGST Rules, 2017 - Delay in granting refund - High Court had while disposing of the writ applications held that the writ applicants are entitled to 9% per annum interest from the date of filing of the GSTR-3B - Review application filed by the UOI was also rejected by the High Court, hence UOI has filed Civil Appeal before the Supreme Court.

Held: According to Section 56 of the CGST Act, if an applicant is not refunded any tax ordered to be refunded by the Proper Officer under Section 54(5) within 60 days from the receipt of the application, interest at such rate not exceeding 6 per cent would become payable after the expiry of 60 days from the date of receipt of application till the date of refund of such tax - The proviso to said Section prescribes that where any claim of refund arises from an order passed by an Adjudicating Authority or Appellate Authority or Appellate Tribunal or Court and if the same is not refunded within 60 days from the date of receipt of an application filed consequent to such an order, the rate of interest payable would be 9 per cent - The instant cases have not arisen from any order passed by an Adjudicating Authority or Appellate Authority or Appellate Tribunal or Court and the cases are strictly within the scope of the principal provision of Section 56 and not under the proviso thereof - It has been clarified in Modi Industries Ltd. and Godavari Sugar Mills Ltd. = 2002-TIOL-446-SC-IT-LB that wherever a statute specifies or regulates the interest, the interest will be payable in terms of the provisions of the statute; that wherever a statute, on the other hand, is silent about the rate of interest and there is no express bar for payment of interest, any delay in paying the compensation or the amounts due, would attract award of interest at a reasonable rate on equitable grounds - Since the delay in the instant case was in the region of 94 to 290 days and not so inordinate as was the case in Sandvik Asia Ltd. = 2006-TIOL-07-SC-IT , the matter has to be seen purely in the light of the concerned statutory provisions - The award of interest at 9 per cent would be attracted only if the matter was covered by the proviso to the said Section 56 - The High Court was in error in awarding interest at the rate exceeding 6 per cent in the instant matters - Revenue appeals are allowed by directing that the original writ petitioners would be entitled to interest at the rate of 6 per cent per annum on amounts that they were entitled by way of refund of tax: Supreme Court [para 12, 13, 18, 19, 20]

2022-TIOL-537-HC-MAD-GST

Arun Structurals Vs State Tax Officer

GST - Petitioner had attempted to transition the credit of Rs.17,60,473/-, which is now sought to be denied - Counsel for Revenue submitted that the said amount was not reflected in the monthly return filed for the month of June 2017 and, therefore, it was not open for the petitioner to transition the above said credit in new GST regime. Held : Impugned order has been passed without following the principles of natural justice and therefore, it is liable to be quashed - It is also noticed that the attempt of the respondent is to deny the input tax credit which remained un-utilised from the month of April 2017 after one of the partners died, which led to surrendering the old registration and obtaining fresh registration from the VAT Authorities - Bench directs the respondent to examine the records of the petitioner and the provisions of the Tamil Nadu Value Added Tax Act and the Rules made thereunder and ascertain whether the credit was validly transitioned to the petitioner after it took over the business of the erstwhile firm namely, M/s. Arun Structurals and if it was validly transmitted, the same shall be allowed to be transitioned - Above exercise is to be carried out within a period of three months - Petition is disposed of: High Court [para 9, 10]

- Petition disposed of: MADRAS HIGH COURT

2022-TIOL-536-HC-MAD-GST

GK Digital Printing Vs Assistant Commissioner

GST - Revocation of cancellation of GST registration - No useful purpose will be served by not allowing persons like the petitioners to revive their registration and integrate them back into the mainstream - Writ Petitions are allowed: High Court [para 15, 16]

- Petitions allowed: MADRAS HIGH COURT

2022-TIOL-535-HC-AHM-GST

I-Tech Plast India Pvt Ltd Vs State of Gujarat

GST - Writ-applicant, inadvertently and due to oversight, cleared and exported its finished goods (produced using material imported under the advance license) upon payment of the Integrated Goods and Services Tax instead of exporting it under the 'Letter of Undertaking' (LoU) - Since the exports were made upon the payment of IGST, the writ-applicant periodically received auto-refund of the IGST paid at the time of exports - Upon realizing this inadvertent mistake, the writ-applicant voluntarily paid the requisite IGST along with the interest to the department for the period in question and sought - Applicant requested the authorities to re-credit/restore the ITC credit to the tune of Rs.1,39,49,810/- in the electronic credit ledger which was, inadvertently, utilized for payment of the IGST at the time of exports of the goods produced using raw-material imported under the advance license - since ITC was not restored as requested, the present application. Held : Simple issue is one of restoration of the ITC, which was erroneously refunded and subsequently recovered - If the authorities have accepted that there was an error and resultantly, accepted repayment of the erroneous refund, as a corollary, the credit of the ITC must be restored - It cannot be that for the purpose of repayment, there was an error, and for the purpose of restoration of the ITC, there was no error - There is no question of any refund of the ITC at all - The question is one of restoration of the ITC in the electronic credit ledger and not a refund thereof, hence, any reference to sub-rule (10) of rule 96 of the CGST Rules is completely misconceived and not tenable - Respondent authorities are directed to re-credit/restore the ITC to the tune of Rs.1,39,49,810/- in the electronic tax ledger of the writ applicant within a period of two weeks - Writ-application stands disposed of: High Court [para 9, 10, 12]

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-540-HC-AHM-VAT

Mobile Hub Vs State of Gujarat

Whether intervention of the writ court is warranted in circumstances where the issues at hand can be canvassed before and disposed off by the appellate authority - NO: HC

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-539-HC-MAD-CUS

St Judes Freight Pvt Ltd Vs CC

Cus - Impugned order is challenged primarily on the ground that simultaneous proceedings were initiated both under Regulation 20(2) and Regulation 22 of the CHALR, 2004 - Petitioner alleges that there is a gross violation of the principles of natural justice, inasmuch as the request of the petitioner to cross-examine one Regina and Raj, Senior Intelligence Officer from D.R.I. was rejected Held: Bench observes that during the course of personal hearing before the Enquiry Officer, the Managing Director of the petitioner Company has submitted that he was no longer interested in cross-examining the above said Officer, a fact recorded in paragraph 22 of the impugned order - Facts on record also indicate that there was evasion of duty to the extent of Rs.5.52 lakhs as per the strength of fake documents generated by the petitioner, therefore, there is no merit in the Writ Petition particularly, in the light of the fact that there is an admission of guilt by the Managing Director of the petitioner on 07.07.2011 - Inculpatory statements of one of the importers is on record that the petitioner Company had acted as Customs House Agent for clearance of the imported consignments and that the petitioner Company had indulged in fabrication of documents to evade the customs duty - However, liberty is granted to the petitioner to file a statutory appeal before the CESTAT within a period of 30 days - Writ Petition stands dismissed: High Court [para 5 to 7]

- Petition dismissed: MADRAS HIGH COURT

2022-TIOL-538-HC-MAD-CUS

Lovely Offset Printers Pvt Ltd Vs Director (DBK)

Cus - Petitioner had exported goods sometime in the year 2000 and filed two applications for fixation of brand rate duty drawback on 16.09.2000 and 03.11.2000 respectively - These applications were ultimately allowed only on 31.07.2008 and 04.07.2008 respectively and thereafter, the petitioner was paid the duty drawback - Petitioner submits that the inordinate delay in determining the brand rate of duty drawback for over a period of 8 years warrants payment of interest on such belated payment. Held: Provisions of the Customs and Central Excise Duties Drawback Rules, 1995, makes it clear that wherever an application is filed for fixation of brand rate duty drawback, such application should be disposed of within a period of 60 days - As the delay is not on account of the petitioner in failing to file any documents required for processing the duty drawback, there is no justification in the stand of the Department by stating that the amount has been immediately paid within a period of one month from the date of fixation of the duty drawback on 31.07.2008 and 04.07.2008 respectively - Respondents to pay interest at 7.5% p.a. from the date of applications filed for fixation of brand rate on 16.09.2000 and 03.11.2000, within a period of three months - Petitions allowed: High Court [para 6, 7]

- Petitions allowed: MADRAS HIGH COURT

2022-TIOL-315-CESTAT-DEL

Rasam Engineering Company Vs CCE & CGST

ST - The issue relates to rejection of refund in part of Rs. 11,32,049/-, the remaining part of Rs. 14,31,206/- was found admissible on merits - But Commissioner (Appeals) has directed that appellant shall deposit the amount in Government Treasury after receiving the same - Following the ruling of Tribunal in case of Shanti Construction Company , it is held that appellant is entitled to refund with respect to service tax paid in respect of four work orders, where the financial bids were opened prior to 1.3.2015 - Accordingly, the impugned order is modified - The Adjudicating Authority is directed to work out the proportionate amount of refund and granted the same to the appellant within a period of 60 days along with interest under Section 11BB of Central Excise Act, 1944 : CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-314-CESTAT-BANG

SSK Security Vs CCT

ST - Refund claim of appellant was partly rejected - The O-I-A, wherein the demand was directed to be restricted to 2008-09 alone has become final with both the Revenue as well as the appellant accepting the same and hence, the same would be binding on both - When the demand is restricted to 2008-09, the predeposit, if any, cannot be calculated against original demand including overlapping period and hence, 7.5% should be worked out of the demand calculated, being Rs.4,06,391/- alone - In terms of O-I-O, appellant was made to pay per force Rs.36,43,019/- which is not in dispute and the fact that the appellant decided not to accept it and filed an appeal itself shows that the above payment was certainly not a voluntary payment - Secondly, when adjudicating authority accepts the claim of appellant and allowed a partial refund, different reason or logic cannot be adopted for rejecting the other part of same predeposit, that is to say, there cannot be two yardsticks for the same issue - Payment here is undoubtedly made prior to the filing of first appeal and hence, it satisfies the purpose of predeposit as having met by appellant and hence, the only question is whether the Revenue can on some pretext retain that extra amount - Answer is no, since in the first place, the collection of tax itself can happen with the authority of law and hence for retaining any extra penny also, the same should be authorised by law - B oth rejection and retention are without authority of law and hence the impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-313-CESTAT-BANG

Marketing Communication And Advertising Ltd Vs CCT

ST - Assessee filed a r efund application claiming refund of deposit lying unutilized in Personal Ledger Account (PLA) - Same was rejected on the ground of time-bar - It is not in dispute that with the introduction of GST from 01/07/2017, assessee's deposit in their PLA remained unutilized and hence, refund of the same was rightly claimed - Section 11B of Central Excise Act, 1944 prescribes time limitation for claiming refund of duty & interest, if any, paid - When the 'deposit' in PLA is not disputed, authorities cannot treat the same, just to reject a valid and rightful claim, as anything other than deposit - Though an attempt is made to give a different colour to 'deposit', but justification is not forthcoming, with due support of any valid documents, anywhere in the orders of lower authority - Assessee's claim for refund of their 'deposit' lying unutilized in their PLA is perfectly valid, which being not a duty, time limit prescribed under Section 11B ibid could not apply - The denial of the same is held unsustainable being contrary to the settled position of law: CESTAT

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-312-CESTAT-AHM

Mepro Pharmaceuticals Pvt Ltd Vs CCE & ST

CX - Appellant is engaged in manufacture of pharmaceutical goods, some of the products are exempted - Initially they have availed Cenvat Credit in respect of all inputs and input services commonly which have been used in manufacture of dutiable and exempted goods - Case of department is that since the appellant have not filed a declaration for opting of proportionate reversal of credit, they are required to pay 5%/10% of value of exempted goods, accordingly, demand was confirmed - Appellant have admittedly reversed the proportionate credit and in respect of delay, they have also paid interest - As held by Supreme Court in case of Chandrapur Magnet Wires (P) Ltd. 2002-TIOL-41-SC-CX , reversal of Cenvat Credit along with interest shall amount to non-availment of Cenvat Credit, if this be so, then Rule-6 is not applicable - Alternatively, once, the appellant have reversed Cenvat Credit proportionately along with interest, they have opted for reversal of proportionate credit then the Revenue cannot insist for some other option which the appellant has not opted for - As regard, non-filing the declaration, it is only the procedural requirement - Due to lapse of procedural requirement, substantial benefit of proportionate reversal of Cenvat credit cannot be objected to - Mere non filing of declaration cannot be the reason that the appellant's option for proportionate reversal is not there - Accordingly, appellant has rightly reversed the proportionate credit along with payment of interest - Hence, no further payment can be demanded from appellant: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2022-TIOL-311-CESTAT-AHM

Hitachi Home And Life Solutions India Ltd Vs CCE & ST

CX - The issue involved is, if the appellants are entitled to avail Cenvat Credit of services provided by them to their customers during warranty period through a third party on free of cost basis - It is not in dispute that the credit is in respect of maintenance and repair services provided by authorized dealers/ franchises of appellant, to the customers, for which there is no charge on customers and for which the appellant are paying authorized dealers/franchises - The Authorized dealers/franchises paid service tax on the amount received from appellant and appellant have claimed Cenvat Credit of said amount - It is not in dispute that all these services are provided during warranty period - The issue regarding admissibility of cenvat credit on warranty service has been examined in detail by Tribunal in case of M/s Case New Holland Construction Equipment (I) Pvt Ltd 2021-TIOL-541-CESTAT-DEL - It is seen that the said order examines the admissibility of credit for periods both pre and post 01.04.2011 - The ratio of aforesaid decision is squarely applicable to instant case - Relying on aforesaid decision, credit on warranty service provided free of cost during the warranty period through third parties cannot be denied: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2022-TIOL-310-CESTAT-AHM

Swiber Offshore Construction Ltd Vs CC

Cus - Appellant was awarded contract Sub-sea pipe Line, Process Platform Projects by ONGC for which they had imported various goods/ materials for use in said projects availing benefit of concessional rate (NIL) duty under Sr. No. 215 of Notification No. 21/2002-Cus under essentiality certificate issued by Director General of Hydrocarbon, Ministry of Petroleum and Natural Gas with post import condition of use in said project of ONGC - A SCN was issued, proposing to deny the benefit of Notification No. 21/2002-Cus. in respect of part material imported, demand of customs duty along with interest and to impose penalty and confiscation of seized goods - In appellant's own matter, Tribunal passed the order that demand of duty along with interest and penalty and confiscation of goods cannot be sustained - Against said final order of Tribunal, department has filed the tax appeal before Gujarat High Court and said appeal was admitted and pending for final decision - No doubt that Tribunal can decide the disputed question of facts as a final fact-finding authority - However, since the disputed matter in appellant's own case is pending before the Gujarat High Court, matter needs to be re-considered on the basis of outcome of decision of Gujarat High Court - Matter remanded to original adjudicating authority for passing a fresh order after the outcome of decision of Gujarat High Court: CESTAT

- Matter remanded: AHMEDABAD CESTAT