GST - Merely because no further appeal is provided against order of AAAR, scope of interference cannot be enlarged and findings of Appellate Authority cannot be substituted: HC

GST - Refund - Review order to file an appeal against OIO is founded on an erroneous finding - Appellate Authority was required to reject Revenue's appeal outrightly: HC

GST - PWD not disbursing 8 crores GST to petitioner - Petitioner to make fresh representation to respondent who is to decide on same within a two month period: HC

GST - Petitioner is entitled to transition TDS under the TNVAT Act in terms of Section 140: HC

Cus - It is erroneous to contend that Section 153(3) provides for a mode of service other than as stipulated u/s 153(1)(b) of the Customs Act: HC

Cus - Nature of a claim for duty drawback is materially different from the nature of deposit required to avail a right of appeal as provided under Customs Act: HC

2023-TIOL-210-HC-KOL-GST

Mega Flex Plastics Ltd Vs UoI

GST - Petitioner has challenged the order passed by the AAAR and seeks setting aside the same and also seeks a declaration that the Circular 80/54/2018-GST dated 31 December 2018 is unconstitutional [and which challenge was waived during the hearing] -  Petitioner is a manufacturer of Polypropylene Leno Bags - Before introduction of GST, petitioner had voluntarily declared its finished product under Chapter Heading 3923 2990 of CETA, 1985 and enjoyed duty drawback - However, pursuant to GST the petitioner in its application before the AAR sought classification of the same product under heading 6305 3300 [attracting lower tax rate vis a vis classification under heading 3923] without giving any cogent reasons for the same - AAR by its order dated 6 July 2018 held that the PP Leno Bags being manufactured by the petitioner can be classified under Chapter Heading 6305 3300 of the said Tariff if the same is made from woven polypropylene fabric using strips not exceeding width of 5mm and without any impregnation, coating, covering or lamination with plastics - Respondent CGST authority preferred an appeal and by its order dated 25 October 2018, the AAAR set aside the order of AAR - Pursuant to the order of the AAR, the petitioner made ‘under protest' payment of differential tax amounting to Rs.6,57,38,093/- for the period 1st July, 2017 to 23rd November, 2018 - Respondent no. 1 on 31st December, 2018, issued Circular bearing No. 80/54/2018-GST dated December 12, 2018 clarifying that Polypropylene Woven and Non-woven Bags and PP Woven and Non-woven Bags laminated with BOPP would be classified as plastic bags under HS Code 3923 and would attract 18% GST - Therefore, the present petition.

Held: Writ petitioners have not been able to demonstrate as to on what basis they are seeking change of the classification of its finished product after the introduction of GST and it appears that petitioner has no basis for the sudden suo motu change of classification of the same finished products for the purpose of Tariff Head when the petitioner itself has been using the classification under the Tariff Head 3923 of its same finished products voluntarily for a long period of time prior to introduction of GST regime - Merely because no further appeal is provided for against the impugned order of the Appellate Authority for Advance Ruling, the scope of interference under the jurisdiction under Article 226 of the Constitution of India cannot be enlarged and the findings of the Appellate Authority cannot be substituted unless the same is without jurisdiction or there is violation of principles of natural justice or the order is patently contrary to any specific provision of law - Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, is not inclined to allow the petitioner to change the classification of Tariff Heading to avail lower rate of Tariff under GST regime when admittedly the product of the petitioner is Polypropylene Leno Bags manufactured by weaving Polypropylene strips and the major raw material of which is plastic granules and admittedly before the introduction of GST regime, petitioner had been declaring the said product under the Chapter 3923 29 90 of the Central Excise Tariff Act, 1985, and enjoyed the Duty Drawback and never contended before the authority till the introduction of GST law that its classification was wrong - It is an admitted position that neither the product in question nor its composition nor the process of manufacturing of the goods in question, Tariff heading of which petitioner sought to change, has been changed after the introduction of GST Act - No merit in the petition, hence dismissed: High Court

- Petition dismissed: CALCUTTA HIGH COURT

2023-TIOL-209-HC-DEL-GST

Mahajan Fabrics Pvt Ltd Vs CCGST

GST - Refund - Section 54 of the Act, 2017 - Commissioner, in his review order, concluded that the 126 invoices in respect of which the refund was sought were dubious and the claim for refund of tax was inadmissible - Appellate Authority found that the vehicles mentioned in the two invoices that were picked up for scrutiny were, in fact, registered with the e- vahan portal - Nonetheless, he allowed the Revenue's appeal on the ground that the petitioner had not established that the goods had been received by providing details of other vehicles in respect of the remaining 124 invoices - Therefore, the present petition.

Held: It appears from the review order dated 15.03.2020 that a few invoices were picked up for scrutiny and out of the said invoices, it was found that the vehicles mentioned in two invoices were not registered on the e- vahan portal - However, the Appellate Authority had found the said finding to be incorrect - Thus, the review order dated 15.03.2020 to file an appeal against the Order-in-Original is founded on an erroneous finding - Having accepted the same, the Appellate Authority was required to reject the Revenue's appeal outrightly - Present petition is allowed by setting aside the impugned order dated 30.12.2021 - The respondents are directed to disburse the amount of refund sanctioned by the Assistant Commissioner in terms of the Order-in-Original dated 12.09.2019: High Court [para 15, 16, 17, 19, 20]

- Petition allowed: DELHI HIGH COURT

2023-TIOL-208-HC-ALL-GST

Bhardwaj Constructions Vs State of UP

GST - Petitioner inter alia seeks a direction commanding respondents to forthwith pay an amount of Rs.7,97,88,026/- along with interest - There was no dispute in respect of payments made prior to the enforcement of the GST regime - After the enforcement of the GST regime, the respondent no.1 issued a Government Order on 09.11.2017 directing various Heads of Departments that contracts for new works and contracts which were already in existence and were awarded before the GST regime, all were to be governed by the GST regime and the additional tax burden shall be computed with the help of formula with respect to existing contract provided under the Government Order dated 09.11.2017 -Another clarification was issued in this regard on 26.10.2021which is in the nature of explaining liability for payment of GST -The petitioner's running bills/invoices have been paid by the respondents no. 3 to 5 after deducting tax at the rate of 2% (1% CGST and 1% SGST) which is only partial deduction of the total tax liability.

Held: The petitioner has made several requests by various means including making representations, details of which have been given in the petition, but the respondents no. 3 to 5 have not disbursed the GST amount to the petitioner - The petitioner consequently could not deposit the huge amount of tax liability with the GST Department and they are in the process of initiating recovery proceedings against the petitioner -Petition is disposed of with a direction to the petitioner to make a fresh representation to the respondent no.2 who shall seek a clarification from the Engineer-in-Chief and the respondent no. 1 and then decide the representation of the petitioner within a period of two months: High Court [para 3, 4]

- Petition disposed of: ALLAHABAD HIGH COURT

2023-TIOL-207-HC-MAD-GST

P And C Projects Pvt Ltd Vs Asstt. Commissioner (ST)

GST - Issue that arises for consideration in this Writ Petition is whether the respondent was right in rejecting, without giving any reason, the petitioner's request under Section 140(1) of the GST Act, 2017 for carrying forward the accumulated credit under the TNVAT Act in respect of TDS.

Held:  Single Judge of this Court in the case of M/s.DMR Constructions - 2021-TIOL-831-HC-MAD-GST has elaborately dealt with this issue - In the said batch of Writ Petitions also, the very same issue was involved and the respondents had denied the carrying forward of accumulated credit in respect of TDS during the TNVAT regime - Bench is in agreement with the said view and the findings given therein -  Court is of the considered view that being a non-speaking order as no reasons have been given for rejecting the petitioner's request for carrying forward of the unadjusted VAT TDS to the GST regime that too when the law has been well settled now by the decision of the Single Judge referred to supra, which has attained finality as no Appeal has been filed against the said order as fairly admitted by the  Government Advocate appearing for the respondents, the impugned order will have to be necessarily quashed and the Writ Petition will have to be allowed - Accordingly, the impugned order is quashed and the Writ Petition is allowed -  Petitioner is entitled to transition TDS under the TNVAT Act in terms of Section 140 of the TNGST Act, 2017 : High Court [para 3, 5, 6]

- Petition allowed: MADRAS HIGH COURT

2023-TIOL-206-HC-DEL-CUS

Sun Aviation Pvt Ltd Vs CC

Cus - Petitioner has been penalized in respect of consignments exported by M/s Manisha Enterprises under five shipping bills - It is alleged that on examination, it was found that the exporter was non-existent and the exports under the said Shipping Bills, were to fraudulently avail export benefits - Petitioner claims that it had not received any Show Cause Notice and, therefore, was not afforded sufficient opportunity to contest the allegations against it; that it was not involved in the exports; it had merely booked air freight and, therefore, cannot be held responsible for the exports in question.

Held: In the present case, there is no material to indicate that the Show Cause Notice was served in any of the modes as stipulated under Section 153 of the Customs Act - It is important to note that Section 153(3) of the Customs Act does not provide for any mode of service; it merely stipulates the date on which an order, decision, summon, notice or any communication is deemed to have been served when it is dispatch through registered post or speed post - Thus, it is erroneous to contend that Section 153(3) of the Customs Act, provides for a mode of service other than as stipulated under section 153(1)(b) of the Customs Act - Bench has no hesitation in accepting the petitioner's contention that it was not served with the Show Cause Notice in question - Bench finds merit in the contention that the impugned order has been passed in violation of principles of natural justice and the petitioner was not afforded full opportunity to contest the allegations against it - Consequently, the impugned order, to the limited extent that it imposes penalty on the petitioner, is set aside - Petition is allowed: High Court [para 11, 15, 17, 18, 20]

- Petition allowed: DELHI HIGH COURT

2023-TIOL-205-HC-DEL-CUS

Colour Cottex Pvt Ltd Vs CC

Cus - Petitioner claims that on 28.07.2015, it uploaded the details of nine Shipping Bills on the DGFT portal; that although the duty drawback in respect of the exports under the said Bills was sanctioned, the same has not been disbursed - Petitioner has further requested that the amount of duty drawback be adjusted against its liability to make a pre-deposit in terms of Section 129E of the Customs Act, 1962.

Held: The nature of a claim for duty drawback is materially different from the nature of the deposit required to avail a right of the appeal as provided under the Customs Act - Court is of the view that the petitioner's grievance may be allayed if directions are issued to the respondent to forthwith release the duty drawback in respect of the five Shipping Bills - Court also considers it apposite to direct CESTAT not to reject the petitioner's appeal for want of pre-deposit for a period of four weeks - Insofar as the petitioner's claim for other remaining duty drawback is concerned, the petitioner is at liberty to avail of its alternate remedy - Petition disposed of: High Court [para 9, 11, 13]

- Petition disposed of: DELHI HIGH COURT