2023-TIOL-576-HC-DEL-ST
Carpet Export Promotion Council Vs UoI
ST - Petition is filed against rejection of the application under SVLDRS, 2019 - The petitioner's application was rejected on the ground of "ineligibility" with the remarks, "incomplete and selective declaration".
Held: Procedure as contemplated under Section 127 of the Finance Act, 2019 conformed to the principles of natural justice and included an opportunity of affording the declarant an opportunity to be heard where there was a difference in the amount as computed by the declarant and the designated committee - It is clear that Rule 6(3) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 also mandated that an opportunity to be heard be afforded to the declarant in case the amount of duty estimated by the declarant fell short of the estimate made by the designated committee - In this case, the petitioner was neither issued any notice nor afforded any opportunity to be heard by the designated committee before its application was rejected - The error on the part of the petitioner is that it did not include the duty amount, which related to the other three audit objections in the column of duty details and the duty paid - Clearly, this error was a curable one and did not affect the estimation of the amount payable after availing the benefit under the SVLDR Scheme - There is no dispute that the amount as estimated to be payable - that is, tax dues less relief - is nil - It is also not disputed that the petitioner would not have benefited in any manner by not disclosing the afore-stated amounts - In the given circumstances, Bench is of the view that rejection of the petitioner's application is arbitrary and unreasonable and, thus, offends Article 14 of the Constitution of India - Excluding a taxpayer merely because there were some obvious and not material errors in the quantum of the duty details filled in the form, although the correct amount of duty was deposited, would run contrary to the object of the SVLDR Scheme - Impugned order rejecting the petitioner's declaration under the SVLDR Scheme is set aside and the designated authority is directed to process the petitioner's declaration within eight weeks: High Court [para 20, 22, 23, 24, 26, 28, 29]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-575-HC-DEL-GST
Netgear Technologies India Pvt Ltd Vs Joint CCGST Appeals Delhi
GST - Petitioner claims that it is engaged in the business of exporting services to Netgear Pte. Ltd. without payment of IGST; that since the supplies made are zero rated supplies, it is entitled to the refund of Input Tax Credit - Adjudicating authority issued SCN proposing to reject the petitioner's claim for refund on the ground that the petitioner was merely facilitating and arranging services and thus, qualified as an intermediary within the meaning of Section 2(13) of the Act; that the place of supply of services was in India and, therefore, the supplies made could not be considered as zero-rated supplies within the meaning of Section 16(1) of the IGST Act - Adjudicating Authority while rejecting the claim proceeded on the basis that the petitioner was procuring orders for its principal ( Netgear Pte. Ltd.) - As the appellate authority rejected their appeal, the present petition.
Held : Bench finds that there is insufficient analysis of the actual work performed by the petitioner; that there is no material to relate the remuneration to the sales figure on empirical basis; that question whether an entity is an intermediary will have to be determined on the basis of actual work performed - Bench considers it apposite to set aside the impugned order as well as the Order-in-Original dated 10.01.2020 and remand the matter to the Adjudicating Authority to decide afresh after examining the actual work performed by the petitioner - Petition is disposed of: High Court [para 7, 9]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-574-HC-MP-GST
Durge Metals Vs Appellate Authority And Joint Commissioner State Tax
GST - It is the contention of the petitioner that the show cause notice was vague to the extent of not communicating the relevant information and material thereby disabling the petitioner to respond to the same and, therefore, all consequential actions of passing of order and dismissal of appeal are vitiated in law.
Held: It is true that the petitioner has not specifically raised the said ground (now being taken) before the appellate authority but the fact remains that mandatory provisions of Section 74 of GST Act make it incumbent upon the Revenue to ensure the show cause notice to be speaking enough to enable the assessee to respond to the same - Bare reading of the show cause notice reveals that it neither contained the material and information nor the statement containing details of ITC transaction under question - Since the statute (s.75) itself prescribes for affording reasonable opportunity, it is incumbent upon the Revenue to afford the same and any deficiency in that regard vitiates the end result - Court has no manner of doubt that the very initiation of the proceedings by way of show cause notice is vitiated for the same being vague - Impugned orders and SCN are quashed with a liberty to the competent authority to proceed in the matter in accordance with law, if so advised - Petition allowed: High Court [para 6, 6.1, 7, 8, 9]
- Petition allowed: MADHYA PRADESH HIGH COURT
2023-TIOL-573-HC-DEL-CX
CCT Vs Om Fragrances
CX - "India Gold" gutkha - Revenue is in appeal against the final order dated 29.09.2022 passed by the CESTAT - Controversy in the present appeal is confined to the question of determination of the quantum of excise duty - Following question inter alia is projected by the Revenue viz. Whether observation of the Tribunal that amended Rule 17(2) of PMPMR-2008 shall not apply retrospectively is justified and valid? - According to the Revenue, the duty for the period of 01.07.2008 to 04.08.2008 was required to be computed on the basis of the machines found at the premises of respondent no.1 that had been in operation since 01.07.2008 - And, the duty payable is required to be calculated by applying the appropriate rate of duty as specified in the Notification dated 01.07.2008 (as amended on 20.10.2008) to the number of operating packing machines found at the factory - Counsel for the Revenue submitted that it would be necessary to apply the amended Rule 17(2) retrospectively from 01.07.2008 as the same is in conformity with the legislative intent in framing the PMPM Rules.
Held : Bench is unable to accept that it is implicit in the language of Rule 17(2), as amended, that it is applicable retrospectively - First of all, the language of Rule 1(2) of the Second Amendment Rules is unambiguous and expressly provides that the amended rules would come into effect from 20.10.2008 - Secondly, it is trite law that laws affecting the rights of parties would apply prospectively unless it is expressly provided otherwise or is required by necessary implication - Bench is unable to accept that it is implicit in the provisions of the amended Rule 17(2), that it applies retrospectively for purposes for determination of duty in respect of searches conducted prior to 20.10.2008 - Undisputedly, for searches conducted after the Second Amendment Rules came into force, the duty would be determined by assuming - unless established to the contrary - that the machines found were operative from 01.07.2008 and by applying the computational provisions of Rule 7 of the PMPM Rules - Appeal is unmerited and accordingly dismissed: High Court [para 31, 33, 35]
- Appeal dismissed: DELHI HIGH COURT |
