2023-TIOL-75-SC-ST
CCGST & CE Vs Flemingo Travel Retail Ltd
ST - Respondent is engaged in the business of running Duty Free Shops at the arrival and departure terminals of the Mumbai and Delhi International Airports - Respondent assessee filed an application claiming refund of service tax paid by it in respect of charges levied by Mumbai International Airport for the period 01.10.2011 to 30.06.2017 - Original authority rejected the claims on the ground that payment of service tax on renting of immovable property has been rightly levied and is not liable to be refunded - Tribunal [ 2017-TIOL-3744-CESTAT-MUM ] came to the conclusion that Duty Free Shops situated at international airports are a global market competing amongst themselves in a tax exempt environment and the levy of service tax shall be bereft of the lawful authority - Revenue is aggrieved by this order and has filed Civil Appeal 24336/2022.
Held: In the case of Aatish Altaf Tinwala , the Central Government exercising revision powers held that the Duty Free Shops in international arrival or departure terminals shall be deemed to be the area beyond the customs frontiers of India - Supreme Court had affirmed the decision of the BOMBAY HIGH COURT [which relied on the Aatish case] by dismissal of SLP vide order dated 14.12.2018 - Same view is taken by two different High Courts in Sandeep Patil [Bombay HC] and Kerala High Court in CIAL Duty Free & Retail Services Ltd. respectively and which orders have been accepted by the department as evidenced from the RTI replies that no appeal was filed against these orders - Keeping in view the aforesaid judgments and Article 286 of the Constitution of India, Bench is also of the opinion that Duty Free Shops, whether in the arrival or departure terminals, being outside the customs frontiers of India, cannot be saddled with any indirect tax burden and any such levy would be unconstitutional - Therefore, if any tax is levied, the same cannot be retained and the Duty Free Shops would be entitled for refund of the same without raising any technical objection including that of limitation - Civil Appeal stands dismissed: Supreme Court [para 9, 11, 13, 15, 18]
- Appeal dismissed: SUPREME COURT OF INDIA
2023-TIOL-643-HC-J&K-CX
VJ Jindal Cocoa Pvt Ltd Vs UoI
CX - Budgetary Support Scheme for eligible units in lieu of CE exemptions which were withdrawn - Since the unit of the petitioner fell under the category of eligible units, the petitioner filed its claim under the Scheme - The competent Authority sanctioned the claim and forwarded the same for disbursement as and when the funds were received from DIPP - It appears that the claim of the petitioner though sanctioned, could not be released in its favour in time due to non-availability of requisite funds from DIPP - The petitioner, who was expecting immediate release of its claim felt aggrieved by the inaction of the respondents and, as such, filed the instant petition seeking, inter alia , a direction to the respondents to disburse the amount of Budgetary Support already sanctioned by respondent No. 5 in its favour with interest in a time bound manner.
Held: True it is, that the claims submitted under the Scheme are required to be disposed of within a period of two weeks, but, there is no complaint by the petitioner that his claim was not considered or disposed of by the respondents within the stipulated period - Sanction for release of amount was granted in time, but, disbursement of the amount took sometime - It is also not the case of the petitioner that there was deliberate delay on the part of the respondents to release the benefit - Admittedly, the funds at the disposal of Commissionerate were far less than the claims received and, therefore, the amount though sanctioned in favour of the petitioner could not be released till the requisite funds were made available to the Commissionerate by the DIPP - In these circumstances, it is difficult for the Bench to say that the amount payable to the petitioner under the Scheme was illegally, arbitrarily or without any reason withheld by the respondents - Bench, therefore, does not find the petitioner entitled to interest on the amount disbursed to it under the Scheme - Benefit under the Scheme is not claimable by the eligible industrial units as a matter of right inasmuch as the benefit envisaged is in the nature of concession/incentive extend by GoI to enable industrial units to tide over the financial hardship to which they may have been exposed with the withdrawal of area-based exemptions under the CE Act - No merit in the petition, hence dismissed: High Court [para 5, 6, 7]
- Petition dismissed: JAMMU AND KASHMIR HIGH COURT
2023-TIOL-642-HC-P&H-GST
Mandeep @ Monty Vs State of Punjab
GST - Petitioner seeks anticipatory bail in case of FIR registered under sections 420, 465, 468, 471 IPC and section 66D of Information Technology Act - Petitioner contends that he has been falsely implicated; that he has been named in the disclosure statement of his co-accused and which was inadmissible - Counsel for Revenue submits that prima facie offence case against the petitioner was clearly made out as was evident from the investigation conducted so far inasmuch as the petitioner was running fake firms based on forged and fictitious documents thereby cheating the State government of crores of rupees under the pretext of GST; that the records were to be recovered from the petitioner and the name of the real beneficiary was to be revealed; that custodial interrogation was necessary and, therefore, petitioner was not entitled to grant of anticipatory bail.
Held: Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr. - CRIMINAL APPEAL NO. 1834/2022 (@Petition for Special Leave to Appeal (Crl.) No. 7188/2022) held that the first and the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused - In the instant case, a perusal of the affidavits of the State dated 2.3.2023 and 27.03.2023 would show the manner in which the investigation was conducted and the specific role played by the petitioner - In fact, he and his co-accused had set up a fictitious firm/companies and thereby cheated the government of crores of rupees, thus, an offence is prima facie established against him - Even otherwise, recoveries of various documents are to be effected from the petitioner and the names of the real beneficiaries are to be revealed - Therefore, the custodial interrogation of the petitioner is certainly required - Petition dismissed: High Court [para 6 to 8]
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-641-HC-MAD-GST
Plus Max Duty Free Madurai Pvt Ltd Vs Pr.Chief CGST & CE
GST - Tribunal, in the case of Flemingo Duty Free Shop P Ltd. [ 2017-TIOL-3744-CESTAT-MUM ] held that no service tax can be levied on the Duty Free Shops and the basis for the conclusion was that the shop was situated beyond the customs frontier and was outside India - Therefore, since the very levy itself was without jurisdiction, the petitioner requested refund of service tax - Meanwhile, in July, 2017, the Tamil Nadu GST Act came into force - However, the GST Department took a stand contrary to the order of the Tribunal and stated that the sale that had taken place within the Duty Free Shops is an interstate supply, which is liable to IGST - Therefore, the petitioner has come forward with the present writ petitions.
Held: Issue has been set to rest and is no longer res integra in the light of the judgment of the Hon'ble Supreme Court in Commissioner of CGST & Central Excise vs. Flemingo Travel [Civil Appeal Diary no. 24336/2022 dated 10.04.2022] wherein the Supreme Court observed - "…we are also of the opinion that Duty Free shops, whether in the arrival or departure terminals, being outside the customs frontiers of India, cannot be saddled with any indirect tax burden and any such levy would be unconstitutional. Therefore, if any tax is levied, the same cannot be retained and the Duty Free shops would be entitled for refund of the same without raising any technical objection including that of limitation." - Writ petitions are, therefore, allowed: High Court [para 5, 6]
- Petitions allowed: MADRAS HIGH COURT
2023-TIOL-640-HC-AHM-GST
Pooran Singh Vs UoI
GST - What is prayed in petitions is to set aside impugned order passed invoking powers under section 130 of CGST Act, 2017 - Further prayer advanced is for release of goods and conveyance - It is the contention of petitioners that when goods were in transit, authorities intercepted the goods and confiscated them - It was submitted that exercise of powers under Section 129 and thereafter switching over to Section 130 and issuing notice thereunder without availing the petitioner the benefits of release of goods under Section 129, could be said to be without jurisdiction - It is directed that goods of petitioner as well as vehicle shall be released on conditions that either of petitioners shall deposit total amount of penalty, the tax is not assessed by authorities; towards fine in lieu of confiscation of goods, either of petitioners shall furnish Bank Guarantee and shall further deposit the amount towards fine in lieu of confiscation of conveyance - Non compliance of any of aforesaid conditions, shall render the interim relief granted herein above, liable to be vacated: HC
- Petitions listed: GUJARAT HIGH COURT
2023-TIOL-639-HC-AHM-GST
Sterlite Power Transmission Ltd Vs UoI
GST - The prayer is to declare Sub-Rule (10) of Rule 96 of CGST Rules, 2017 , to be ultra vires - It was submitted that Court has entertained several petitions involving very issue of vires of Rule 96(10) of CGST Rules, 2017 and has also granted interim protection to petitioners concerned - When in many cases, interim relief is granted, petition deserves to be treated at par - Therefore, by way of interim relief, it is directed that respondent authority shall not make any coercive recovery from petitioner in respect of refund of integrated tax already paid, till further orders: HC
- Application allowed: GUJARAT HIGH COURT
2023-TIOL-449-CESTAT-DEL
Sadagati Clearing Services Pvt Ltd Vs CC
Cus - Revocation of license - The entire allegation against appellant is based on two reports of jurisdictional officer that exporters were found to be non-existing at registered premises and that Input Tax Credit was not admissible to exporters - The aforesaid two reports accept that two exporters had obtained GST registration in July 2017 and had been filing returns - It also mentions that they have fraudulently obtained ITC - For fault of exporters, appellant cannot be blamed unless there is evidence to establish that they had colluded with exporters but evidence has not been placed - These two issues were examined at length by a Division Bench of Tribunal in M/s CRM Logistics Private Limited , wherein the Tribunal held that it is not the responsibility of customs broker to physically go and verify existence of each exporter at every location, let alone keep track as to whether exporters shifted their place of business - The Tribunal held that even if exporter changed his address, action cannot be taken against customs broker - Thus, it is not possible to sustain the order, same is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
