Cus - Payment of duty, while appealing its imposition, is required to be construed as payment under protest: HC

Cus - AAR - Merely because an officer of customs contemplates that a question may arise, does not mean that the question is pending consideration - DRI appeal dismissed: HC

Cus - An inordinate delay in the advance ruling attaining finality would frustrate the scheme and object of providing such advance rulings - Appeal barred by limitation: HC

GST - Hollow, shaky and a cryptic 'one line' notice - Credibility of petitioner questioned on ground that business premises has remained closed, however, respondent has not followed procedure so far as the spot visit is concerned - Order cancelling registration quashed: HC

GST - IGST refund - When the export has been permitted by all concerned, petitioner would become entitled to refund along with interest: HC

2023-TIOL-182-HC-AHM-GST

Neha Enterprise Vs State of Gujarat

GST - Petitioner challenges the order cancelling their registration - Petitioner submits that show cause notice had not been sent to the petitioner physically nor any notice has been received by the petitioner by post or at his registered address - Another grievance on the part of the petitioner is that no other document has been uploaded except the single page notice; that no time for personal hearing was granted and the show cause notice did not mention the name and designation of the person issuing the notice before whom and what time and place the petitioner needed to appear; that the order did not assign any particular reason for cancellation; that an application was preferred on 15.06.2022 seeking revocation of cancellation of registration but the same was rejected on 01.08.2022. Held : While being conscious of the fact that when there is an alternative remedy available, ordinarily writ jurisdiction is not to be entertained - The question is about the very basis of notice which according to this Court is quite hollow and shaky - It is a cryptic 'one line' notice - Credibility of the petitioner is questioned on the ground that the business premises has remained closed, however, the respondent has not followed the required procedure so far as the spot visit is concerned - This serious lapses or breach of fulfilment of the provisions also further vindicate the need of interference on the part of this Court -Following the Coordinate Bench's decision in case of Aggarwal Dyeing & Printing Works ( 2022-TIOL-504-HC-AHM-GST ), this petition is ALLOWED solely on the ground of violation of the principles of natural justice - The impugned order dated 25.05.2022 passed by the respondent No.2 is quashed and set aside granting liberty to the respondent No.2 to re-issue the show cause notice dated 10.05.2022 with particular reasons incorporated with details through its registered email address on khatikparash1@gmail.com, parashkhatik7029@gmail.com, khatikparash9913@gmail.com as well as through RPAD and thereafter to provide reasonable opportunity of hearing to the writ applicant and to pass appropriate speaking order on merit which shall be done physically as directed in the very decision - With the aforesaid, the GST Registration Number of the applicant stands restored forthwith and decide the matter by following the procedure of law. [para 10, 12, 17]

- Petition allowed: GUJARAT HIGH COURT

2023-TIOL-181-HC-AHM-GST

Mobile Shoppe Vs UoI

GST - Principal grievance on the part of the petitioner is that the proceedings for scrutiny of refund of IGST for the export already made by the petitioner is initiated by the CGST Department even though the proper officer for grant of refund of IGST is the Custom Authorities and, therefore, initiation of the actions on the part of the respondent is bad in law. Held : Custom Authority having permitted the goods to be exported and the petitioner having paid the IGST on the export, the process of the refund on such IGST after clearance of the goods for export is what is being provided as Rule 96 is very clear that shipping bill of the export needs to be treated as the refund application - Keeping in mind the fact that this Court on noticing the overall circumstances, since had protected the writ applicant from the investigation which had been initiated, at no stage, the authority was precluded from initiating the proceedings of show cause notice - However, till date, it is not so done, therefore, to strike a balance this Court is of the firm opinion that when the export has been permitted by all concerned on the part of the respondents, the petitioner would become entitled to the refund and the same shall be paid with interest to the petitioner - At the same time, as this Court had protected petitioner and the investigation has not been concluded, let the same be finalized in eight weeks' period - If at the end of the investigation nothing is found, without any further requirement of the petitioner moving any authority, the same shall be remitted to the petitioner in his account through RTGS with interest - Petition is allowed: High Court [para 9, 11.2, 12, 13]

- Petition allowed: GUJARAT HIGH COURT

2023-TIOL-180-HC-DEL-GST

National Board Of Examination In Medical Sciences Vs UoI

GST - Petitioner's request for refund was rejected - Petitioner also impugns the circular dated 17.06.2021 (Circular No. 151/07/2021-GST ) as ultra vires to the provisions of entry at Serial No. 66(a) read with Para 2(y) of the Notification No. 12/2017-CTR - Petitioner claims that it is an educational institution and is covered under the exemption under Entry 66 of the Notification - Second, the petitioner submits that notwithstanding the above, it would be entitled to exemption for tax on services rendered in conducting examination and is covered by the Notification dated 25.01.2018 - Petitioner challenges the Circular dated 17.06.2021 inasmuch as it refers to the fee charge for FMGE Screening Test as a fee for accreditation. Held: Issue Notice - Counter-affidavit to be filed within a period of four weeks – Matter to be listed on 22.03.2023: High Court

- Matter listed: DELHI HIGH COURT

2023-TIOL-185-HC-DEL-CUS

Pr.CC Vs Cisco Systems India Pvt Ltd

Cus - Tribunal, following the decision in Mafatlal Industries Ltd. - 2002-TIOL-54-SC-CX-CB had accepted the respondent's [ assessee ] case that since it had filed an appeal challenging the levy of duty, the demand of duty was required to be considered as paid under protest - Revenue is aggrieved and is in appeal.

Held: It is difficult for this Court to accept that the payment of custom duty imposed pursuant to an order while appealing the same can be construed as payment of duty without protest - The very act of filing an appeal against an order imposing customs duty is a protest against the duty as assessed. The entire purpose of such an appeal is to seek reduction of the levy - It is, thus, obvious that the assessee does not accept the said levy and, payment of the same would necessarily have to be construed as payment under protest - In view of the authoritative decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India (supra), the question whether payment of duty while appealing its imposition, is required to be construed as payment under protest, is no longer res integra - Second proviso to Section 11B of the Central Excise Act, 1944 is pari materia to second proviso of Section 27(1) of the Customs Act - Tribunal order concurred with and Revenue appeal is dismissed: High Court [para 13, 15,16]

- Appeal dismissed: DELHI HIGH COURT

2023-TIOL-184-HC-DEL-CUS

DRI Vs Spraytec India Ltd

Cus - s.28-I(2) of Customs Act, 1962 - DRI has filed appeal u/s 28KA impugning an order dated 08.08.2022, passed by the Customs Authority for Advance Ruling (CAAR) whereby the representations made by DRI contending that the said order dated 05.10.2021 had been obtained by the respondent by "fraud and misrepresentation of facts" and therefore, was entitled to be declared as void ab initio in terms of Section 28K(1) of the Customs Act. Held: At the material time, the respondent believed that the goods imported under the Bill of Entry, which were pending clearance in January, 2019, had been withheld on account of an investigation commenced by DRI - Since DRI had not issued any show cause notice, it cannot be stated that the question of classification of goods was pending before any officer of customs, appellate tribunal, or any court - Undisputedly, the officer of the Commissionerate concerned as well as DRI, Jaipur participated in the proceedings before the CAAR - It is relevant to note that the CAAR had also concluded to the effect that even if it was disclosed that there was an on-going investigation by DRI, the same would not be relevant to the outcome of the proceedings - It would, therefore, be erroneous to hold that the question of classification was pending before any Custom officer, Appellate Tribunal or any Court - In order for a question to be considered as pending before any officer of customs, it would be necessary for the question to be raised in any notice enabling the assessee to respond to the said issue - Merely because an officer of customs contemplates that a question may arise, does not mean that the question is pending consideration - Possibility that a question would arise for consideration of a customs officer, appellate tribunal or court, is not a ground contemplated under Clause (a) of the proviso to Section 28-I(2) of the Customs Act - Clearly, a distinction must be made between that question pending consideration and a possibility of a question arising consideration - Bench concurs with the view of the CAAR and finds no infirmity with the impugned order rejecting the representations made by DRI - Appeal is unmerited and hence dismissed: High Court [para 10, 11, 12, 13, 15, 17]

- Appeal dismissed: DELHI HIGH COURT

2023-TIOL-183-HC-DEL-CUS

CC Vs Amazon Seller Services Pvt Ltd

Cus - Appeal is filed u/s 28KA by Commissioner of Customs against order dated 08.12.2021 passed by Customs AAR seeking to set aside the said order to a limited extent of conferring notification benefit of Serial No. 20 of Notification No. 57/2017-Customs dated 30.06.2017 to Fire TV sticks - Respondent submits that they have neither availed the benefit of Notification No.57/2017-Customs dated 30.06.2017 (at Serial No.20) in respect of the Fire TV sticks nor intends to avail of such benefits; that notwithstanding the same, the present appeal is barred by limitation and the delay is beyond the period that can be condoned. Held: It is apparent from the nature of provisions that an inordinate delay in the advance ruling attaining finality would frustrate the scheme and the object of providing such advance rulings - Thus, keeping in view the express language of the proviso to Section 28KA of the Customs Act as well as the nature and scheme of Chapter V-B of the Customs Act, the jurisdiction of the court to extend the time for filing the appeal, in excess of a period of thirty days over and above the stipulated period of sixty days from the receipt of communication of the ruling or order, is impermissible - It is apparent that even if the appellant's contention is accepted that the date of communication of the impugned ruling is 22.03.2022 and not 09.12.2021, the present appeal is beyond the period of ninety days from the said date - Court has no jurisdiction to entertain an appeal against the ruling of the CAAR as it was filed beyond the further period of thirty days, which can be condoned in case appeal is filed after sixty days of the communication of the said ruling - Revenue Appeal is dismissed as barred by limitation: High Court [para 15, 17, 18]

- Appeal dismissed: DELHI HIGH COURT