2023-TIOL-655-HC-AHM-GST
RHC Global Exports Pvt Ltd Vs UoI
GST - Allegations of bogus Purchase/bogus ITC - The bone of contention of petitioners is that business premises of petitioners is situated in Special Economic Zone and as such is to be treated as foreign territory and not subjected to provisions whereby respondent authorities, i.e. State authorities No.4, 5 and 6 have no jurisdiction to carry out any search proceedings at the premises of the petitioners.
Held: A close perusal of section 22 of the SEZ Act & s.6 of the CGST Act indicates that respondent authorities are empowered to carry out proceedings in SEZ - Their jurisdiction is unquestionable as Central Government has already authorized those officers by virtue of notification dated 5.8.2016 - Sub-section (2) of Section 6 of GGST Act indicates that where any proper officer issues an order under this Act, he is also issuing an order under CGST Act as authorized by Act or under intimation to jurisdictional officer of Central Government and as such it appears that respondents are empowered to carry out search proceedings in SEZ - Therefore, it cannot said that they were acting without the authority of law or jurisdiction - Further, by virtue of circular dated 5.7.2017, functions of proper officers under CGST Act are also defined - Additionally, provisions of IGST Act, 2017 are applicable to whole of India and undisputedly, petitioner has got its registration under IGST Act - If submission of petitioners is accepted that they are SEZ units and as such not subjected to such rigors of investigation or inspection, same would defeat the very purpose of the Act and apart from this, there appears to be no visible inconsistency in both the Acts i.e. SEZ Act, 2005 or GST Act, 2017 - This is an attempt on the part of petitioners by filing these kind of petitions to thwart and delay the legal proceedings which are initiated by respondent authorities and as such this move of petitioners appears to be an abuse of process of law looking to the manner in which the irregularities alleged to have been committed - Such attempt on the part of petitioners deserves to be dealt with firmly so that litigants may not take disadvantage of situation by bringing such kind of litigation - We find it proper to impose costs upon the petitioners to have adopted such course of action - Petitions dismissed with costs of Rs.10,000/- for each petition to be paid to Gujarat State Legal Service Authority: High Court [para 18, 19, 23, 25]
- Petitions dismissed: GUJARAT HIGH COURT
2023-TIOL-654-HC-ALL-GST
Elesh Agrawal Vs UoI
GST - Petitioner challenges demand cum notice issued in form GST DRC-01 - Petitioner submits that the present notice has been issued prematurely before any regular SCN may have been issued in any adjudication proceedings inasmuch as the SCN has been issued in form GST DRC-01 and not form GST DRC-01A - Other grievance is that the above demand cum notice has not been uploaded on the GST portal and that no notice came to be served on the petitioner through electronic means - Counsel for Revenue submits that no real prejudice has been caused to the petitioner for reason of the discrepancy alleged in issuance of show cause notice in Form GST DRC-01 in place of Form GST DRC-01A; that as of now no adjudication order has been passed.
Held: While it is true that revenue authorities must give reasonable opportunity of hearing in adjudication proceedings, and further preliminary notice may be issued not in Form GST DRC- 01 but in Form GST DRC-01A, as that is the prescribed form, at the same time, in the context of the present facts, that objection appears to be hyper technical and not real - Petitioner does not admit any fact allegations being levelled against him; requirement of preliminary notice has largely been rendered formal - If issuance of such notice would not have served any benefit to the assessee, it would be futile on the part of the writ-Court to enforce on the revenue authorities fulfilment of that condition, in the present case, at this stage - No good ground is made out to offer any interference on merits, in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India - Thus, prayer made in the writ petition is declined - A month's time is granted to the petitioner to file reply to the show cause notice - Revenue authorities will ensure that all documents required to be uploaded on the GST portal and required to be communicated to the petitioner through electronic mode may be uploaded and communicated within 48 hours - Petition is disposed of: High Court [para 8, 9, 11, 14]
- Petition disposed of: ALLAHABAD HIGH COURT
2023-TIOL-653-HC-MUM-GST
Dharmendra M Jani Vs UoI
GST - Provisions of Section 13(8)(b) and Section 8(2) of the IGST, 2017 are legal, valid and constitutional – Majority decision – Petitions challenging the vires of s.13(8)(b) and s.8(2) of the IGST are dismissed: High Court [para 9]
- Petitions dismissed: BOMBAY HIGH COURT
2023-TIOL-652-HC-DEL-CX
UoI Vs Aurobindo Pharma Ltd
CX - Appellants/ Union of India (UOI) have preferred the present writ appeals, being aggrieved by the aforesaid judgment of the Single Judge, whereby the claim of the DTAs for refund of TED paid by them at the time of supply of the goods to EOUs by utilizing their CENVAT credit, has been allowed.
Held: Supreme Court in Sandoz Private Limited = 2022-TIOL-03-SC-CUS-LB , while allowing the claim for refund of TED has held that in the case of DTA supplier of goods to EOU, if TED has been paid by utilizing CENVAT credit, the refund would be in the form of reversal of commensurate amount of CENVAT credit amount - It has been argued that with the introduction of Goods & Services Tax Regime, the erstwhile concept of CENVAT credit register has been done away with; that in cases where the duty was paid through credit, there is no way that the refund can now be granted in credit account and, therefore, the refund has to be made in terms of Section 142(3) of the Central Goods and Services Tax Act, 2017 which provides that any amount of refund accruing to any assessee shall be paid in cash - Issue involved in the present case stands concluded on account of the said judgment, therefore, the Respondent herein/ Petitioner shall be entitled for refund in accordance with law: High Court [para 8 to 10]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-463-CESTAT-MAD
Peninsula Hotels Pvt Ltd Vs CGST & CE
ST - It appeared to the Department that the license fee is nothing but rent paid by GRT to the appellant towards renting of the appellant's premises of M/s. Peninsula Hotels (P) Ltd.; that the activity was taxable under Renting of Immovable Property Service and the appellant is liable to pay service tax on the amounts received from GRT; that the appellant had not paid service tax on such amounts received by them, therefore, Show Cause Notices were issued for the period June 2010 to February 2011 and March 2011 to June 2011 proposing to demand service tax along with interest and for imposing penalties - Original authority confirmed the demand along with interest and imposed penalties and this order was upheld by Commissioner (Appeals), hence the appeal before CESTAT.
Held: As per the agreement there is no fixed assured rent paid to the appellant by GRT - A sum calculated as 20% of the 'Gross Room Income' and all other income, except food and beverage income and 15% on the food and beverage income derived from the hotel has to be paid on a monthly basis - It is also stated that room income, food or beverage income and other income derived shall be called as 'Gross Turnover of the Hotel' - It is thus sharing of profit of the business of the hotel and not a consideration paid for renting of the Hotel Building - Whereas in a situation of renting of immovable property, the consideration is for the service of providing renting of immovable property - Similar arrangement of licence granted to operate and run a Hotel was considered by the Tribunal in the case of Grand Royale Enterprises Ltd. = 2019-TIOL-194-CESTAT-MAD and wherein the Tribunal had set aside the demand - The above decision of the Tribunal in the case of Grand Royale Enterprises (supra) was affirmed by the Hon'ble Supreme Court vide judgment dated 01.08.2022 in Civil Appeal No. 7326/2019 - Applying the decision in the case of Grand Royale Enterprises as affirmed by the Apex Court, Bench is of the considered opinion that the demands cannot sustain -Appeals allowed with consequential relief: CESTAT [para 15, 16, 17, 18, 19]
- Appeals allowed: CHENNAI CESTAT |
