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2023-TIOL-247-HC-JHARKHAND-GST
CJ Darcl Logistics Ltd Vs UoI
GST - Goods transportation agency - C ase of the petitioner is that inadvertently, on account of a bonafide mistake, he deposited an amount of IGST of Rs.2,39,705/- CGST of Rs.83,86,310/- and SGST of Rs.83,86,310/- totalling to Rs.1,70,12,325/- in its electronic cash ledger [Pertaining to the RCM registration] instead of depositing it in the cash ledger of the GSTIN 20AAACD20866J1Z0 [pertaining to FCM registration] - The petitioner again deposited the same amount in the electronic cash ledger of the FCM registration to file GSTR-3B return - As there was double payment and the amount was lying as excess balance in the electronic cash ledger of the petitioner, an application for refund in FORM GST RFD-01 was filed on 18.04.2021 - Petitioner was proceeded against by a SCN dated 17 May 2021.
Held: Notice in Form GST-RFD-08 dated 17th May, 2021 that was apparently uploaded on the portal in its body did not disclose any reasons for inadmissibility of refund from the dropped down of the amount of Rs.1,70,12,325/- - It further transpires that the petitioner herein refuted the allegation of the department given in the show cause notice vide his reply by clarifying among other things that returns in FORM GSTR-3B and FORM GSTR-1 have been correctly filed - However, interestingly, the order in original which was passed pursuant to the reply to the show cause notice did not deliberate with the content of reply but the adjudicating officer has proceeded to pass an order rejecting the refund application on the grounds which were never part of the original show cause notice as indicated in paragraph No.5 herein above - In other words, the show cause notice was of different allegation and only after submissions of petitioner's reply the order in original was passed on the grounds which were never part and parcel of the original show cause notice - It is settled principle of law that if an allegation or ground is not made at the time of issuance of show cause notice, the authority cannot go beyond the scope of show cause notice to create new ground at the later stage of adjudication - It further transpires that the impugned proceedings are also vitiated for violation of principles of natural justice as neither a proper show cause notice has been issued nor any opportunity of hearing was given to the petitioner - Even the order in appeal does not deliberate on this issue and simply confirmed the order in original - Since the show cause notice is vague and cryptic in nature and order in original has been passed beyond the show cause notice, both are liable to be quashed and set aside - Consequently, the impugned show cause notice dated 17th May, 2021 and the consequent order in original dated 14.06.2021 and order in appeal dated 08.12.2021 are quashed and set aside - Petition allowed: High Court [para 6, 11, 12, 13, 14]
- Petition allowed: JHARKHAND HIGH COURT
2023-TIOL-246-HC-MUM-GST
Getalong Enterprises Ltd Vs Supdt. (Anti Evasion) CGST & Excise
GST - Allegation against petitioner is that they have availed total ITC of Rs.7.61 crores in respect of bogus, non-existent firms - Petitioner seeks quashing of proceedings initiated against them and also seeks a declaration that the payment of tax by way of reversal of ITC is coerced by respondents and hence should be refunded - Incidentally, the Directors of the petitioner were granted bail by the Judicial Magistrate - Petitioner does not press for the prayer sought of quashing the investigation and consequent summons in view of the Division Bench decision in Nagpur Cable Operators Association vs. Commissioner of Police, Nagpur and another 1995 (2) Mh. L.J. 753 - Insofar as the second prayer is concerned regarding refund of ITC reversal on the ground that they were coerced by respondents, counsel for Revenue submitted that when the Directors were produced before the Magistrate, they made no grievance of any ill-treatment and, therefore, this theory of coercion is an after-thought.
Held: Investigation into the matter is pending - Reply, and rejoinders are raising seriously disputed questions about how the ITC is reversed - It is not possible for the Bench to render a finding in a writ jurisdiction that it was due to coercion - There could be various reasons why the Directors of the Petitioner have reversed the ITC - As an accused, if the Petitioner is subjected to a threat or coercion by the investigation officer, then the Petitioner would have their legal remedies open - If the Petitioner is entitled to a refund, on any other legal ground, that the Petitioner was not liable to reverse the ITC, then it is open to the Petitioner to apply for reversal/ refund by making a proper application or adopting such proceedings as available - Petition disposed of: High Court [para 7]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-245-HC-AHM-GST
Biocare Pharma Vs State of Gujarat
GST - Petitioner challenges the cancellation of registration on the ground of gross violation of principles of natural justice.
Held: Government pleader has fairly submitted that the notice continues to remain cryptic - Court has followed Aggarwal Dyeing and Printing Works ( - 2022-TIOL-504-HC-AHM-GST ) in various decisions, wherever there is a violation of principles of natural justice, the order of cancellation of GST registration is frowned upon and also viewed seriously - Relying on these decisions, the show cause notice dated 09.05.2022 and the order of cancellation of registration dated 24.06.2022 are quashed and set aside with a direction to respondent No. 2 to restore the registration forthwith - Liberty is granted to respondent No. 2 to issue fresh notice with all particulars of reasons incorporated with details and, thereafter, to provide reasonable opportunities to the parties representing the case and also for personal hearing - Petition stands disposed of: High Court [para 6, 8]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-244-HC-AHM-GST
Gigamade Machineries Pvt Ltd Vs State of Gujarat
GST - Cancellation of registration - Petitioner challenges the alleged illegal action - Petitioner submits that show-cause notice simply stated the following as the reason for issuance of the notice - "1. Taxpayer found non-functioning / not existing at the principal place of business"; that the order of cancellation did not record any reasons for cancellation of GST registration and only mentioned that the order of cancellation has been passed.
Held: Bench finds that the said show cause notice is absolutely vague, bereft of any material particulars and the impugned order is also vague and a non-speaking order - It cannot be disputed that with cancellation of registration, the dealer is liable to both civil and penal consequences - To say the least, the Authority ought to have at least referred to the contents of the show cause and the response thereto, which was not done - The authority ought to have followed the principles of natural justice, which has not been done in the present case - Not only the order is non-speaking but cryptic in nature and the reason of cancellation not decipherable therefrom - In such circumstances, the principles of natural justice stand violated and the order needs to be quashed as it entails penal and pecuniary consequences - Show cause notice dated 09.05.2022 as well as the consequential order dated 04.06.2022 is quashed and set aside - GST registration stands revived, forthwith - Petition allowed: High Court [para 5, 6]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-243-HC-AHM-GST
SE Forge Ltd Vs UoI
GST - Section 54 of the Act, 2017 - ITC Refund - Petitioner is a SEZ unit - Petitioner has received supplies from non- SEZ suppliers wherein some suppliers levy the IGST - Being an SEZ unit, the petitioner has not been able to utilize the credit which remains un-utilized in the Electronic Credit Ledger of the petitioner - The petitioner filed refund application in Form GST RFD-01 on 28.9.2020 for the period of September 2018 to December 2019 for the amount of Rs.8,88,079/- in relation to such unutilized Input Tax Credit - According to the petitioner, the appellate authority erred in holding that Section 54(3) of the CGST Act read with Rule 89(1) and Rule 89(2)(f) of the CGST Rules mandates only the supplier to claim the refund of ITC - It is the case of the petitioner that CGST Act does not make any distinction between a SEZ unit and other registered persons so far as eligibility of ITC is concerned; that SEZ is not an exclusion under the framework of GST scheme - Essential anxiety on the part of the respondent is that if the payment of amount of tax is already made to the supplier by the SEZ, the SEZ has to directly file appropriate civil case against the supplier for recovery of amount of the amount since it was not required to pay any amount and the burden to verify whether the supplier claimed the refund and whether the SEZ unit has actually paid up the tax cannot be shifted to the department; that this is inadvertence of the SEZ unit and not of the department; that in GST regime, SEZ units are not required to pay any tax on supplies made to them by DTA, rather it is the supplier who is required to pay taxes.
Held: While claiming the refund both the times on the part of the petitioner, it has specified that the supplier had not claimed the refund and furthermore, if any such eventuality is noticed, it has taken the responsibility for the refund of amount - Decision in M/ s.IPCA Laboratories = 2022-TIOL-270-HC-AHM-GST covers this issue squarely with a specific undertaking having been tendered along with the application for the refund that the supplier has not claimed any refund and any eventuality of the supplier having been given the refund, the petitioner is taking the responsibility to make good the amount which may have been given will need to be borne in mind and accordingly, this petition is allowed, quashing the order passed by the Commissioner (Appeals) for the period of September, 2018 to December, 2019 and Assistant Commissioner for the period of 2020 to November, 2021 that the respondent grant the refund of ITC to the petitioner after proper verification and by obtaining a specific undertaking / bond from the petitioner where by stating that if the supplier at any point of time has taken refund and it comes to the notice of the department, then department will be in a position to recover it with interest - Accordingly, it is directed that department shall refund the amount to the petitioner within eight weeks - Petition is disposed of: High Court [para 15, 16]
- Petition disposed of: GUJARAT HIGH COURT |
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