I-T - Assessment order is invalid where it is verbatim reproduction of SCN issued to assessee, thereby reducing procedure to an empty formality : HC

I-T - Notices issued u/s 153C issued in name of deceased assessee are invalid, in light of settled precedent: ITAT

I-T - Cash payments made in violation of section 40A(3) merits disallowance: ITAT

VAT - Assessment u/s 34(8A) can be resorted to only if pre-existing condition of there being any proceedings are not pending: HC

RTI Act - Imposing Anti Dumping Duty has significant impact on economic interests & trade relations of India - constitutes confidential information which cannot be subject to disclosure under RTI Act: HC

RTI Act - Anti Dumping Authority vested with specialised knowledge of trade & Anti Dumping proceedings which enables it to decide whether or not to disclose certain information - Such expertise does not vest in the CPIO/PIO under RTI Act: HC

GST - Order passed u/s 130 of CGST Act without affording opportunity of personal hearing to assessee, is not sustainable: HC

GST - Cash seized by GST Officers since it lay idle & was not deposited in bank & was not declared in ITR - clear over-stepping of jurisdiction u/s 67 of CGST Act - cash retained for 6 months without issuing SCN - cash to be returned to appellant: HC

Cus - When there was no written consent by appellant and they were before Commissioner (A), same should have been reason enough to remand the matter to lower authority for issue of a speaking order in compliance with section 17(5) of the Act: CESTAT

CX - Merely on the basis of income tax investigation, case of clandestine removal under Central Excise Act cannot be confirmed without bringing independent tangible evidence on record: CESTAT

2023-TIOL-383-HC-AHM-GST

Ashok Singh Vs State of Gujarat

GST - The petitioner filed the present petition to set aside notice dated 5.10.2019 (FORM GST MOV 10), which was for confiscation of goods or conveyance and levy of penalty under section 130 of the Gujarat Goods and Services Tax Act, 2017 - It was also prayed to release the vehicle-truck bearing No. GJ-21-W-6977 alongwith the goods contained therein - Order under section 130 of Act was passed subsequent to filling of the petition under section 130 of Act. The petitioner challenged the said order dated 5.10.2019 (FORM GST MOV 11) by amending the prayer clause. Held - It appears that the notice was issued on 5.10.2019 by the State Tax Officer asking the petitioner to remain present before him on 15.10.2019 - It is the case of the petitioner that the petitioner had informed the about the order dated 14.10.2019 passed by this court whereby the notice was issued and was made returnable - It is not in dispute that on the same day, however, that is on 15.10.2019, the respondent No.2 proceeded to pass order of confiscation of goods and conveyance and demanded tax, fine and penalty under section 130 of the Act - The petitioner pointed out that he had already deposited the amount of tax and penalty - Therefore, what becomes clear is that order dated 15.10.2019 under section 130 of the Act came to be passed without affording any opportunity to the petitioner - As noticed above, the petitioner was called to remain present and on the same date the order came to be passed - It amounted to breach of principles of natural justice resulting into denial of reasonable opportunity to the petitioner to defend in the proceedings - The proceedings are remanded to the competent authority of the respondents, which shall decide the subject matter afresh after giving opportunity to the petitioner to defend his case - The amount of tax and penalty deposited by the petitioner shall remain subject to outcome of the proceedings before the competent authority. As per the undertaking filed by the petitioner as directed by the court, if the petitioner does not succeed finally, the petitioner will have to pay the balance amount payable under the order of confiscation under section 130 of the Act, however, the same shall be without prejudice to his rights to challenge the order before the higher forum: HC

- Writ petition allowed: GUJARAT HIGH COURT

2023-TIOL-382-HC-KERALA-GST

Shabu George Vs STO

GST - The present Writ Appeal is directed against an order passed by the Single Judge where a writ petition filed by the Writ Appellant was disposed of with directions to the Departmental authorities to consider and pass orders w.r.t. a representation filed by the Appellant to release the cash that was seized from his premises in connection with an investigation being done under the GST Act - During the pendency of this writ appeal, the Intelligence Officer passed an order dated 21.3.2023, disposing the representation preferred by the appellants as per the directions of the learned single Judge. On a reading of the order that rejects the said representation we find that the stand taken by the Intelligence Officer is essentially that in view of the specific provisions of Section 67(2) of the CGST Act, which authorises the seizure of 'things', which inter alia includes cash also as held by the High Court of Madhya Pradesh in the judgment dated 26.8.2020 in WP(C) No. 8204 of 2020, the authority was justified in seizing the cash and retaining the same pending a culmination of the investigation. Held - The stand taken by the Intelligence Officer in the order dated 21.03.2023 is somewhat puzzling - While Section 67(2) of the CGST Act does authorise seizure of things, including cash in appropriate cases, we do not think that the present is a case that called for a seizure of the cash found in the premises of the appellants at the time of the search - The power of any authority to seize any 'thing' while functioning under the provisions of a taxing statute must be guided and informed in its exercise by the object of the statute concerned - In an investigation aimed at detecting tax evasion under the GST Act, we fail to see how cash can be seized especially when it is the admitted case that the cash did not form part of the stock in trade of the appellant's business - It is evident from the order of the Intelligence Officer that the cash that was seized from the premises of the appellants was not the stock in trade of the quarry business that was conducted by the appellant - That the Intelligence Officer found it suspicious that that much amount of money was kept idle in the house of the appellant and not deposited in bank leading to the conclusion that the same was derived from illicit sources, reveals the extent to which the authorities are misinformed of their powers & limits of their jurisdiction - Such findings of the Intelligence Officer could perhaps have been justified had he been an officer attached to the Income Tax Department - Such findings are wholly irrelevant in the context of the CGST Act - Hence the seizure of cash from the premises of the appellant was wholly uncalled for and unwarranted - Moreover, since the Department retained the cash for over 6 months & is yet to issue an SCN, there is no justification for continued retention of the cash - Hence the same is directed to be released to the Appellant within a weeks' time: HC

- Writ appeal allowed: KERALA HIGH COURT

2023-TIOL-381-HC-KERALA-GST

Kondapuram Kalathil Vs STO

GST - The present writ appeals were filed to challenge an order passed by the Single Judge who dismissed the three writ petitions, following the judgment of the Division Bench of this Court in Writ Appeal No.1035 of 2019 and connected matters. Held - No prejudice will be caused to the Revenue by directing the First Appellate Authority to consider the appeals preferred by the appellant in these Writ Appeals, on merits - While upholding the judgment of the Single Judge impugned in the writ appeals to the extent it finds against the appellant on the issue of power of the State Government to reopen an assessment subsequent to the Constitution Amendment (101st Amendment Act), we dispose these Writ Appeals by directing the First Appellate Authority in these Writ Appeals to entertain the appeals preferred by the appellant against the orders of assessment, that were impugned in the writ petitions, after collecting the amounts due towards the Kerala Legal Benefit Fund - If the appellant cures the defect in relation to the payment of amounts towards the Kerala Legal Benefit Fund, within a period of three weeks from today, then the Appellate Authority shall treat the appeals as properly filed and proceed to adjudicate the same on merits, after hearing the appellant - The Appellate Authority shall thereafter pass final orders in the appeals, within a period of three months, from the date of receipt of the amounts towards the Kerala Legal Benefit Fund: HC

- Writ appeals disposed of: KERALA HIGH COURT

2023-TIOL-386-HC-KERALA-VAT

Alappuzha Vs CTO

In writ, the High Court observes that the appellant also filed appeal before the VAT Tribunal along with Stay Applications. Hence the challenge via the present petitions is rejected. The Tribunal is directed to dispose off the appeals and Stay Petitions within two weeks' time.

- Writ petition allowed: KERALA HIGH COURT

2023-TIOL-385-HC-AHM-VAT

Carbon Edge Industries Ltd Vs State of Guajrat

Whether assessment u/s 34(8A) of Gujarat VAT Act can be resorted to only if pre-existing condition of there being any proceedings are not pending so as to justify the assessment proceedings under Section 34(8A) of the Act - YES: HC

- Writ petition allowed: GUJARAT HIGH COURT

2023-TIOL-384-HC-DEL-MISC

UoI Vs Arvind M Kapoor

Miscellaneous - Right To Information Act, 2005 - challenge is raised to the order of the Central Information Commission dated 29th July, 2016 passed in File No. CIOC/KY/A/2016/000980 titled Shri Arvind M. Kapoor v. The Director & CPIO, Ministry of Commerce & Industry - The CIC directed the Directorate General of Anti-Dumping and Allied Duties to provide the information sought by the RTI Applicant- Mr. Arvind M. Kapoor - The Respondent had filed an application before the Designated Authority, Directorate General of Anti-Dumping and Allied Duties for initiating investigation qua imports of Styrine Butadine Rubber of 1500 and 1700 series originating in or exporting from European Union, Korea RP and Thailand - Pursuant to the said complaint, the DA vide notification No. 14/10/2015-DGAD dated 14th January, 2016 initiated an anti-dumping investigation - The Respondent had sought information on certain points, to which the Petitioner furnished reply - However the Respondent was not satisfied with the responses received at the CPIO and FAA levels and so the matter reached the CIC.

Held - the imposition of anti-dumping duty and confidential information disclosed in such proceedings would have a significant impact on the economic interest and trade relations of India, as also would constitute information received by the authority in confidence, which cannot be subjected to disclosure - Section 11 of the RTI Act itself recognizes the intention to protect the information received from third parties - If any party, especially one who has already participated in the anti-dumping investigation, requires any information, the same would have to be governed and dealt with under the Anti-Dumping Rules, including Rule 7, and the said procedure cannot be bypassed by seeking resort to the provisions of RTI Act - The Anti-Dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings - Such knowledge would enable the said Authority to take a considered decision as to whether the particular information is to be disclosed or not - Such expertise does not vest with the CPIO/PIO or other authorities under the RTI Act - Hence the order passed by the CIC is set aside: HC

+ In the present case, the anti-dumping investigation was initiated at the instance of ISRPL and Reliance Industry Ltd. i.e., the Petitioners in W.P.(C) 2603/2017 . The said two companies filed a complaint before the Anti-Dumping Authority with respect to alleged dumping of SBR of 1500 and 1700 series originating in or exported from European Union, Korea RP, and Thailand, and resultant injury to the domestic industry. Shri Virender Kapoor, the RTI Applicant was a party to the anti-dumping investigation. He participated in the said investigations which finally led to the imposition of anti-dumping duty vide notification no. 14/10/2015-DGAD dated 12th July 2017 (Para 30);

+ Thus, the Court needs to examine whether the Anti-Dumping Rules are 'inconsistent' with the provisions of the RTI Act. The legal issue in the context of specific Rules framed by various authorities in respect of disclosure of information, in different contexts, has been subject matter of at least two decisions. In the case of Registrar of Supreme Court of India v. R.S. Misra W.P.(C) 3530/2011, date of decision 21st November, 2017 , a ld. Single Judge of this Court was dealing with a request for information under the RTI Act in the context of Supreme Court Rules, 1966/2013 framed by the Supreme Court. In the said decision, the Court considered the framework of the said Rules framed under Article 145 of the Constitution of India, 1950. In the said judgment, the Court drew a distinction between the administrative functioning and the judicial functioning of the Supreme Court (Para 40);

+ perusal of the above two decisions shows that the Rules which are made by specific authorities to deal with information provided by parties on the judicial side cannot per se be held to be inconsistent with the provisions of the RTI Act. Moreover, the Supreme Court has specifically held that on the judicial side the information is held by courts as a trustee for litigants in order to adjudicate upon the matter and the same cannot be permitted to be accessed by third parties. A proper balance is to be maintained in order to ensure the confidentiality of documents and other information pertaining to the litigants to the proceedings (Para 42);

+ In the case at hand, it is the submission of the RTI Applicant itself that the Anti-Dumping Authority is acting as a quasi-judicial body when dealing with the complaint of the complainant in respect of dumping. This Court has no doubt in holding that the information that has been supplied by the Complainants has been given in the course of adjudication, in the capacity of a litigant. Thus, the information has been received by the Anti-Dumping Authority which now forms part of the record in discharge of its judicial/quasi-judicial function (Para 43);

+ While the RTI Act promotes greater transparency and access to information, the same cannot be held to be an inviolable rule. There are specialised fields which are governed by specifically enacted Rules and Statutory frameworks so as to balance the interest of disclosure with the larger public interest relating to that field. Anti-dumping duty is one such field, which is governed by the Customs Tariff Act, 1975 and the Anti-Dumping Rules framed thereunder. The said Rules are a consequence of provisions of GATT and the Anti-Dumping Agreement, which also recognize the sensitivity of information disclosed under anti-dumping proceedings (Para 44);

+ The level of recognition accorded to preserving confidentiality of such information in the larger interest of global trade, countries involved, entities from different countries who could be exporters, importers and other stakeholders, cannot be ignored and deserves to be protected and recognized. The RTI Act itself has various exemptions under Section 8, which recognizes that the disclosure of information may affect the stakeholders, the strategic and economic interest of the country and in that case such information is exempted from disclosure. In numerous judgments, the Supreme Court has observed that RTI Act seeks to strike a balance between transparency and public interests including preservation of confidentiality of sensitive information (Pata 45);

+ Thus, none can claim an absolute right to get a certain piece of information, and the nature of the information that is sought would be material. The specific note sheet that has been sought by the RTI Applicant is the note sheet relating to initiation of anti-dumping investigation. From a bare perusal of the original file produced before the Court, it is evident that the note sheet contains various portions of information which may be confidential to the Complainants. The Anti-Dumping Agreement entered into amongst countries, post GATT, recognises the sensitivity and the competitive advantage that can be gained by third parties if confidential data is disclosed. For 'good cause' the said information can be refused to be disclosed. A perusal of the note sheet sought would also show that the disclosure of the same under the RTI Act, especially in a case where the RTI Applicant was a party to the anti-dumping investigations and is a competitor of the Petitioners could cause serious prejudice and adversely affect various sections of the domestic industry (Para 46);

+ In the context of anti-dumping proceedings and information disclosed therein, the DA has to undertake a detailed enquiry into issues such as 'competitive advantage', 'business sensitivity', 'productivity particulars', 'cost of raw materials', 'investments made', 'sales', 'market share' etc. The DA also has to examine whether there is good cause for disclosure. The DA can also get non-confidential summaries prepared for the purpose of disclosure. All this exercise is to be undertaken by the DA having expertise in the matter (Para 48);

+ In contrast, the authorities under the RTI Act, the CPIO, PIO, First Appellate Authority and the CIC would not have the requisite expertise or wherewithal to comment upon or assess the impact of disclosure of confidential information submitted or obtained in anti-dumping proceedings. Anti-dumping proceedings by their very nature are proceedings which have national and international dimensions and also have an impact on the country's economy. The proceedings involve dealing with business sensitive and confidential information relating to a particular industry. It also involves assessment of trade relations between India and various other countries as can be seen from the public notice and the final order in the present case. Submissions were called from a large number of foreign companies including from Korea RP, Singapore, USA, Czech Republic, Poland, Germany, Thailand as also from global players such as the European Union, governments, and international industry associations. The entire purpose of having a complete and self-sufficient scheme for disclosure of confidential information under the Anti-Dumping Rules would be defeated if persons who are participating in anti-dumping investigation are permitted to tangentially seek information under the RTI Act (Para 49).

- Writ petition allowed: DELHI HIGH COURT

2023-TIOL-254-CESTAT-KOL

Pragati Agri Products Pvt Ltd Vs CCGST & CX

ST - The dispute is relating to refund sanctioned on the basis of debit notes issued by M/s. Marine Containter Services (India) Pvt. Ltd., which is alleged to be improper documents and are accordingly inadmissible under Notification No. 41/2012-S.T. r/w Rule 4A(1) of Service Tax Rules, 1994 - On going through the Notfn it is clear that nomenclature of documents is not necessary but said document should fulfill all necessary details as required - The debit notes duly fulfilled all the necessary conditions as are required to be provided, but the fact remains that said documents are not invoices, bills or challans, but are debit notes - Impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2023-TIOL-253-CESTAT-MAD

Kanam Latex Industries Pvt Ltd Vs CC

Cus - Appellant had imported rubber gloves in bulk - Original authority had directed them to indicate MRP on packets of imported rubber gloves and assessed the goods to additional duty of customs in terms of Notification No. 49/2008-C.E. (N.T.) - Aggrieved by assessments done on both Bills of Entry they have filed appeals before Commissioner (A), challenging imposition of additional duty and seeking a direction to Assistant Commissioner to refund the excess duty collected - Commissioner (A) has rejected their appeals on the ground that duty was not paid under protest nor Bills of Entry have been assessed provisionally - Appellant stated that in case they have paid duty under protest as stated by Commissioner (A), then there was no legal necessity to file an appeal against assessment order since in terms of section 17 r/w section 27 of Customs Act, 1962, proper office will have to first vacate the protest by passing a speaking order which will then constitute a separate cause of action - It was for Commissioner (A) to examine whether provisions of said section had been satisfied - When he had found that appellant was directed by original authority to take steps for assessing goods under Notification No. 49/2008-C.E. (N.T.) , he should also have examined whether there was a written acceptance of that direction by appellant/ importer, in absence of which proper officer should have passed a speaking order within fifteen days of date of assessment of BE - The facts that there was no written consent by appellant and that they were before him in appeal should have been reason enough for him to remand the matter to lower authority for issue of a speaking order in compliance with section 17(5) of the Act - Accordingly, matter remanded back to original authority to pass a speaking order as contemplated under section 17(5) of Customs Act, 1962: CESTAT

- Matter remanded: CHENNAI CESTAT

2023-TIOL-252-CESTAT-AHM

Associated Power Structure Pvt Ltd Vs CCE & ST