I-T-Deduction u/s 10AA of I-T Act is available for those articles which on import to unit located in SEZ, were thereafter re-exported: HC

I-T - Provisions of Section 144 cannot be invoked under mistaken belief that assessee's ITR was not on record, whereas such ITR is found to be in place : HC

I-T- Section 254 empowers ITAT to rectify orders rendered erroneous due to acts of omission or commission; ITAT rightly recalled order passed without noticing that assessee was not informed of hearing: HC

I-T- Original notices u/s 148 pertaining to old regime & issued b/w 01.04.2021-30.06.2021, are beyond prescribed permissible timeline of 6 years from end AY 2013-14 & AY 2014-15; are time barred: HC

GST - Appealable orders (to Tribunal) would not be implemented till Tribunal becomes functional - Board to issue instructions to incorporate Clause 4.2 of Circular dated 18 March 2020 in each order: HC

Cus - Bench finds nothing in the impugned order that would suggest that maximum compounding fee was warranted - Matter remanded: HC

GST - Appellate Authority should consider the question whether it has the authority to expand the scope of controversy by introducing a fresh ground for denial of refund: HC

ST - CENVAT Credit on input services which are used for bringing into existence of immovable property are eligible for availment of CENVAT Credit: CESTAT

2023-TIOL-425-HC-ORISSA-GST

Ranjan Naik Vs JCCT & GST

GST - The petitioner sought to set aside order passed by the Joint Commissioner of CT & GST on grounds that the Appellate Authority rejected the appeal as pre-deposit of 10% of admitted tax amount was debitted through Electronic Credit Ledger instead of Electronic Cash Ledger.

Held - It is seen that by circular dated 6th July 2022 issued by the GST Policy Wing, Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Government of India, it has been clarified that payment of pre-deposit can be made by using the ECL - In that view of the matter, the impugned order dated 7th April, 2022 is set aside - The appeal may be listed before the FAA: HC

- Writ petition disposed of: ORISSA HIGH COURT

2023-TIOL-424-HC-ORISSA-GST

Pratap Kumar Pradhan Vs CCT & GST

GST - The present petition was filed to challenge the order passed by the FAA, being the Joint Commissioner of State Tax (Appeal), CT & GST Territorial Range, Bhubaneswar, by which said authority has not admitted the appeal preferred by the petitioner, as the same is in contravention to sub-sections (1) & (4) of Section 107 of the GST Act and has rejected the appeal filed under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017 - The counsel for the petitioner contended that the petitioner is not liable to pay the tax and penalty and, as such, against the order passed by the 1st appellate authority though second appeal lies, the 2nd appellate tribunal has not yet been constituted - It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition - The Revenue claimed that the petitioner was liable to pre-deposit 20% of the tax demanded in order to appeal to the Appellate Tribunal.

Held - Notice be issued to the parties concerned - Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition: HC

- Interim Application disposed of: ORISSA HIGH COURT

2023-TIOL-417-HC-DEL-GST

DL Support Services India Pvt Ltd Vs Addl. CCGST

GST - Petitioner claims that it is involved in the export of services and had sought a refund of Integrated Tax of Rs. 13,10,508/- paid on the export of services for the period of April 2020 - Adjudicating Authority rejected their application for refund by an order dated 30.07.2021 - Appellate authority rejected their appeal by an order dated 19.04.2022, therefore, the present petition - It is the case of the petitioner that the ground on which the Appellate Authority had denied the refund - that is, the petitioner is an intermediary - was neither a part of the show cause notice nor projected as a subject matter before the Appellate Authority at any stage. Held: Court has entertained the present petition solely for the reason that the petitioner does not have an equally efficacious remedy of an appeal before the Goods and Services Tax Tribunal because the same has not been constituted as yet - Insofar as the jurisdiction to decide an appeal on a completely new basis is concerned, it does not appear from the impugned order that the Appellate Authority had examined the question - It would be apposite that in the first instance, the Appellate Authority considers the question whether it has the authority to expand the scope of controversy by introducing a fresh ground for denial of refund - It is not disputed that the petitioner was not given an opportunity to meet the case that it was not entitled to refund as the services provided by it was as an intermediary - It is, thus, clear that the impugned order has been passed in violation of the principles of natural justice - Matter remanded to the Appellate authority to decide the case afresh, expeditiously and preferably within a period of eight weeks: High Court [para 2, 14, 15, 16, 18]

- Matter remanded: DELHI HIGH COURT

2023-TIOL-416-HC-MUM-GST

Rochem India Pvt Ltd Vs UoI

GST - Common position in these Petitions is that Petitioners have challenged the order passed in appeal by Appellate authority under the Act, 2017 - Writ Petitions under Article 226 of the Constitution of India are filed on the ground that the Appellate Tribunal is not yet constituted - Chairman of the Central Board of Indirect Taxes and Customs has filed an affidavit in Writ Petition no. 10883 of 2019 on 12 October 2022 - Additional Solicitor General has placed the Circular No. 132/2/2020-GST dated 18 March 2020 issued by the Board, giving clarification in respect of appeals in regards to non-constitution of Appellate Tribunal - State Authorities have also issued an identical Trade Circular with some modifications - What emerges from the Circular and the affidavit is that the appeal to the Appellate Tribunal can be filed within three months (six months in the case of Appeals by the Government) from the date of the communication of the order or date on which the President or State President, as the case may be, of the Appellate Tribunal enters office, whichever is later - Bench does not have any positive statement from the respondents to the exact time or date on which the contingency provided in Clause 4.2, that is, President or State President entering office, would occur and, therefore, the question is whether the Petitions need to be kept pending in this Court. Held: It is clear that the Government does not intend that taxpayers are prejudiced for want of the Tribunal - With that intent, the period of limitation has been extended - As a corollary of the intention expressed in the affidavit and the Circular, it follows that the appealable orders (to the Tribunal) would not be implemented till the Tribunal becomes functional - That being the position, the writ petitions do not need to remain pending in this Court - It would be advisable, to avoid further complications, that the Respondent-Board issues instructions to incorporate Clause 4.2 of the Circular dated 18 March 2020 in each order which is appealable to the Appellate Tribunal constituted under Section 109 of the Act - This would guide the aggrieved parties as to the future course of conduct and reduce needless litigation in the form of filing writ petitions such as the present ones - Petitions disposed of with the following clarifications - (a) The period of filing the Appeal will stand extended as indicated in Clause 4.2 of the Circular dated 18 March 2020; ( b) The impugned order will not be given effect until two weeks after the period prescribed for filing an appeal as under Clause 4.2 of the Circular dated 18 March 2020 is over - Petitions disposed of: High Court [para 10, 11, 12]

- Petitions disposed of: BOMBAY HIGH COURT

2023-TIOL-423-HC-KERALA-VAT

Prodair Air Products India Pvt Ltd Vs State Of Kerala

Whether order passed without the requisite authority merits being set aside, since it is a palpable injustice - YES: HC

- Writ petition allowed: KERALA HIGH COURT

2023-TIOL-418-HC-DEL-CUS

Sandeep Aggarwal Vs UoI

Cus - Petitioner is, essentially, aggrieved by the quantification of the compounding fee as determined in the impugned order dated 30.09.2020 passed by Chief Commissioner of Customs. Held: The compounding amount demanded from the petitioner is the maximum that could be imposed under Rule 5 of the Customs (Compounding of Offences Rules), 2005 - However, there is no discussion whatsoever to indicate why the authority concerned thought it fit to impose the maximum compounding fee - Court also notes that the observations made in the impugned order are largely in favour of the petitioner - The Chief Commissioner had found the petitioner to be first time offender with clean antecedents - There is also no material to indicate that the petitioner's explanation was found to be untrue - There is no material, which would even remotely suggest that the petitioner is engaged in the regular business of wrongfully importing goods at concessional rates - Bench finds nothing in the impugned order that would suggest that maximum compounding fee was warranted in the given facts of this case - Court considers it apposite to set aside the impugned order to the extent of determination of the compounding fee as Rs. 37,59,567/- and remand the matter to the concerned authority to consider the petitioner's case afresh subject to petitioner depositing the amount of Rs. 5,00,000/- withing a period of two weeks - Authority to decide the compounding fee within a period of four weeks - Petition disposed of: High Court [para 9, 10, 11, 13, 14]

- Petition disposed of: DELHI HIGH COURT

2023-TIOL-279-CESTAT-MUM

Asrani Inns And Resorts Pvt Ltd Vs CCGST

ST - The issue arises is, whether after amendment to definition of input service under Rule 2(l) of CCR, 2004, w.e.f. 01.04.2011, said CENVAT Credit was admissible to appellant specifically after the words "setting up" has been deleted from definition - The lower authorities have held that construction of hotel premises at Hyderabad and Delhi was setting up and therefore denied CENVAT Credit part - Appellant relies on the decision of coordinate Bench of Tribunal in case of Lemon Tree Hotel - It was further held that CENVAT Credit on input services which are used for bringing into existence of immovable property are eligible for availment of CENVAT Credit by this Tribunal - Following the observation in said case, activity was that of construction and therefore the services stated such as architect service and telephone expenses were input services and therefore the Service Tax paid on said services is eligible as CENVAT Credit to appellant - Impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2023-TIOL-278-CESTAT-MAD

ITC Ltd Vs CCE

CX - The issue which was referred to Larger Bench is as to whether in the case of inter-unit transfer of goods for captive consumption, entire value (i.e. 115% / 110% of cost of production) or actual cost of production (i.e. 100% of cost) excluding notional loading (i.e. 15% / 10%) of goods manufactured by one unit, would be the cost of raw material of another unit (who used the goods in the manufacture of another article) for the purpose of determining value under Rule 8 of Valuation Rules and CAS-4 issued by ICWAI, for transferring goods to their other unit for further use - The Larger Bench vide order 2016-TIOL-453-CESTAT-MAD-LB answered reference, holding that decision of Chennai Bench of CESTAT rendered in M/s. Eveready Industries Ltd. Final Order dated 11.05.2010 and subsequent decision of same Regional Bench 2011-TIOL-1115-CESTAT-MAD represent the correct position in law - In case of Inter-unit transfer of goods for captive consumption, actual cost of production (100% of cost of production), of raw material procured from Bhadrachalam unit of appellant [excluding the notional loading under Rule 8 - 15% / 10%] is the cost of raw material in hands of Chennai unit, for determining the cost of production of packaging material manufactured by Chennai unit - The percentage of loading on such cost of production, mandated by provisions of Rule 8 for remittance of excise duty by Bhadrachalam unit cannot however be considered as comprised in cost of raw material consumed for manufacture of packaging material and thus constituting the cost of production at the Chennai unit - Applying the dictum laid by Larger Bench in its order 2016-TIOL-453-CESTAT-MAD-LB, it is held that the demand, interest and penalties in respect of said issue cannot sustain and requires to be set aside - Interim Order 2014-TIOL-605-CESTAT-MAD, passed by Tribunal in the appeal, be read as part of this Final Order: CESTAT

- Appeal disposed of: CHENNAI CESTAT