2023-TIOL-743-HC-AP-GST
Devi Traders Vs State of Andhra Pradesh
GST - Petitioner submits that without scrutinizing the return for the Assessment Year 2018-19 U/s 61 and without finding any discrepancies and issuing notice to explain discrepancies and most importantly, without passing any reasoned order thereon, the 3rd respondent has directly issued notice U/s 74 of the Act which is per se illegal and without jurisdiction; and consequently petitioner seeks setting aside the show cause notice dated 06.07.2022 and direct the respondents to release the petitioner's bank account.
Held:
Points for consideration are:
(1) Whether proceedings U/s 74 of APGST Act cannot be independently initiated without having recourse to the scrutiny U/s 61 of the said Act?
+ It should be carefully observed that Section 74 starts with the clause "where it appears to the proper officer that any tax has not been paid" - The word "appears" has a wider amplitude subsuming in it not only Section 61 and 65 but also any other credible information from a different source - If the intendment of legislature is to make Section 74 bound by Section 61 and 65 alone, that fact would have been clearly depicted in Section 74 - However, we will not find any specific reference to Section 61 [Scrutiny of returns] or 65 [Audit by Tax authorities] in Section 74 except the usage "where it appears" -A literal or strict interpretation is essential for fiscal, tax and penal laws and the Court cannot abridge or elongate the meaning of those statutory provisions, particularly, when the language employed therein is plain, unambiguous and simple - In the present case as already stated supra the phrase " where it appears " is a free, unfettered and unbound usage made by legislature and, therefore, in our view, the source for the proper officer to proceed under this provision can be held to be either under Section 61 or 65 or some other information but cannot be constricted to Section 61 or 65 alone to reach Section 74 cannot be accepted - Thus in essence, the source for the proper officer to proceed U/s 74 may be either Section 61 or 65 or some other fact -Petitioner's argument is rejected [para 9]
(2) Whether the attachment of the bank account of the petitioner is illegal?
+ Main allegation under impugned notice dated 06.07.2022 is that the petitioner has passed fraudulent ITC to the purchasers without actual supply of goods/services - In that context, while issuing show cause notice to the petitioner, respondent authorities seem to have made provisional attachment of the bank account of the petitioner by resorting to Section 83 of APGST Act - Since the petitioner has so far not filed his objections/reply to the notice, at this juncture it cannot be concluded that the attachment is illegal.
++ On conspectus of facts and law, Bench finds no merits in the writ petition.
++ Writ petition is disposed of giving liberty to the petitioner to file his explanation / objections along with the relevant materials before the 3rd respondent within three (3) weeks.
- Petition disposed of: ANDHRA PRADESH HIGH COURT
2023-TIOL-741-HC-DEL-CT
Thermoking Vs Commissioner of State GST
CST - Petitioner impugns notice of default assessment as well as notice of assessment of penalty - It is averred in the present petition that the petitioner had the relevant documents to establish the inter State sales, however, it could not produce the same because of non-receipt of any notice under Section 59(2) of the DVAT Act.
Held : It appears from the said orders that the concessional rate of duty had been denied to the petitioner on the ground that the C-Forms, relied upon by the petitioner, had been cancelled by the concerned tax authorities in Haryana with retrospective effect - Counsel appearing for the respondent, submits that since the petitioner contends that it has documents to establish the inter State sales and there is no dispute that the adjudicating authorities have the jurisdiction to examine the relevant documents, the matter should be remanded to the concerned authority for deciding afresh, after affording the petitioner, an opportunity to be heard - Impugned notices of penalty and assessment are set aside - Matter is remanded to the assessing authority to determine the petitioner's claim afresh and in the light of the decision of this Court in Indo Silicon Electronics Pvt. Ltd. and Surinder Pal and Sons-HUF - Assessing authority is requested to complete the proceedings within a period of three months: High Court [para 11, 13, 15]
- Matter remanded: DELHI HIGH COURT
2023-TIOL-547-CESTAT-DEL
Ashok Malhotra Vs CC
Cus - License of a Customs Broker has been revoked under provisions of Regulation 10 (n) of CBLR, 2018 merely on the basis of a communication sent by Directorate General of Analytics and Risk Management (DGARM) to field formations - Appellant placed reliance upon decision of Tribunal in M/s Perfect Cargo & Logistics 2022-TIOL-320-CESTAT-DEL to contend that in similar circumstances, the order revoking Customs Broker License for violation of Regulations 10 (n) of 2018 Regulations was set aside - The facts of present case are similar, except that copy of communication sent by DGARM was made available to appellant - Other documents were not made available to appellant - Appellant has contended that all documents, as required by Circular, were supplied by them but a perverse finding has been recorded by Commissioner that provisions of Regulation 10 (n) of 2018 Regulations has not been complied with merely because of facts stated in communication sent by DGARM - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-546-CESTAT-HYD
Choice Precitech India Pvt Ltd Vs CCT
ST - Appellant is undertaking job work for various Hydraulic Equipment manufacturers - From the findings of Adjudicating Authority, it is seen that appellant has not brought in proper documentary evidence towards their claim that quantified amount of Rs. 1,32,17,617/- is not correct - Further, when appellant claims that they have paid Rs. 27,91,144/-, there is no finding in O-I-O as to why this amount has not been considered while passing the Order - Appellant is required to submit complete details of invoice-wise statement for period under dispute along with copies of invoices to substantiate their claims towards requantification - The amounts paid by them under various challans should be submitted to Adjudicating Authority - These figures should certified by Chartered Accountant clearly indicating the total turnover as per Profit & Loss Account and turnover shown in ST-3 returns, amount collected by them on account of Service Tax - Even the matter of GAR Challan for Rs. 27,11,144/- claimed by appellant which was not being considered as paid to be verified and allowed if found to be correct - Adjudicating Authority will follow the principles of natural justice and allow all these documents to be placed before him and he will pass a considered decision after getting these facts verified - Since the matter pertains to year 2004-05 to 2008-09, Adjudicating Authority is directed to complete the proceedings within 4 months: CESTAT
- Matter remanded: HYDERABAD CESTAT
2023-TIOL-545-CESTAT-MUM
Patel Engineering Ltd Vs CST
ST - The appellants are engaged in providing different services under taxable category - The matter arising out of SCN was adjudicated vide impugned order, wherein service tax demand has been confirmed along with interest and also imposed penalties under Section 76, 77 and 78 of Finance Act, 1994 - With regard to dredging service, on perusal of documents available in case file, it is found that appellants had in fact purchased the goods used for completion of assigned task - Thus, it is a case of works contract, which specifically brought into statute book w.e.f. 01.06.2007 - Since, construction activity provided by appellant was for period June 2005, same cannot be liable for payment of service tax inasmuch as works contract service was brought into taxing net w.e.f. 01.06.2007 - Therefore, service tax demand confirmed in impugned order cannot be sustained - As regards the demand confirmed in impugned order for provision of consulting engineer service, appellants vide their letter had confirmed regarding payment of service tax in respect of services provided to M/s Pratibha Industries Limited - Further, during course of adjudication and in appeal memorandum filed before Tribunal, appellants have not specifically contested such demand confirmed in impugned order - Thus, such demand confirmed in impugned order is sustainable - With regard to service tax demand confirmed on "Commercial and Industrial Construction Service", services provided by appellants involved both execution of assigned work as well as for supply of material - Materials used in execution of work were procured by appellants on payment of appropriate VAT/Sales Tax - Thus, it is evident that service provided by appellants should be categorized as works contract service - Since, such services were provided by appellants prior to period 01.06.2007, as per the ratio of judgment in case of Larsen and Toubro Ltd. 2015-TIOL-187-SC-ST , no service tax demand shall be fastened on appellants - Hence, an amount confirmed in impugned order cannot be sustained - As regards the service tax demand attributable to taxable services namely Consulting Engineer Service and Goods Transfer Agency Service respectively, appellants are not contesting such demands confirmed in impugned order - There was ambiguity with regard to payment of service tax by recipient of said services, under reverse charge mechanism - Since, the appellants have accepted their liability; this is a fit case for invocation of provisions of Section 80 ibid for non imposition of penalties - Therefore, penalties imposed in impugned order under Sections 76, 77 and 78 ibid are set aside: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2023-TIOL-544-CESTAT-DEL
Rajasthan Digital Tiles Pvt Ltd Vs CCE & CGST
CX - The Appellant - Assessee is engaged in the manufacture of glaze tiles and is registered with the Central Excise Department under Central Excise Registration No. AAGCR4458LEM002 - It appears to the Department that the appellant had undervalued the finished goods and short paid the Central Excise duty by not including the amount of subsidy received from the Sales Tax Department for arriving at the transaction value of the goods cleared - Separate show causes dated 22.08.2019 and 26.03.2019 were issued for the period April, 2017 to June, 2017 and April, 2016 to March, 2017 respectively - The said SCNs were adjudicated and separate Order-in-Originals were passed on 17.02.2022 and 31.03.2021 confirming the demand under the SCNs, relying on the decision of the Apex Court in CCE vs. Maruti Suzuki India Ltd., and also in the case of CCE, Jaipur vs. Super Synotex (India) Ltd., - The appeals filed by the appellant before the Commissioner (Appeals) stood rejected by the impugned order dated 16.09.2022 and the reference to the decision of the Tribunal in the case o f M/s Shree Cement Ltd., vs. CCE was not complied with as the Department had challenged the said order before the Supreme Court and appeal was admitted.
Held - In the SCN dated 22.08.2019 for the period April, 2016 to March, 2017, the Department has invoked the extended period of limitation on the ground that the assessee did not disclose the correct information to the Department - According to the Department, the facts regarding non payment of duty by the Appellant or in other words the amount retained of sales tax collected from the customer, came to the notice of the Department only through the audit of the records conducted by the Audit Officer - Thus, there was suppression of material facts with intent to evade payment of duty - Although, the issue on merits has been decided in favour of the appellant and therefore the issue of extended period of limitation does not require any decision thereon - I also find that the issue whether the subsidy amount was includible in the transaction value in terms of Section 4(3)(d) of the Central Excise Act was a matter of interpretation of law and therefore the allegation of suppression of fact are not applicable in the present case and consequently neither interest nor penalty is leviable - The allegation of mis-representation with reference to the inclusion of the subsidy amount under the instant scheme have been considered by the Tribunal in Select Poly Products Pvt. Ltd. , and also in Honda Motorcycle and Scooters India Pvt. Ltd. - Hence the orders in question are unsustainable - Though the Department filed an appeal before the Supreme Court in the case of Shree Cement Ltd no stay on the order has been granted - Hence the present appeal has to be decided in light of the decision in Shree Cement Ltd and other decisions cited at the Bar - Hence the orders are set aside and the appeal is allowed: CESTAT
- Appeals allowed: DELHI CESTAT
2023-TIOL-543-CESTAT-KOL
Jaiswal Electronics Vs CC
Cus - Appellant filed one Bill of Entry for clearance of goods declared as "Spare of Mosquito Bat" under CTH 85169000 - The consignment was RMS facilitated - However, on the basis of SIB (Port), alert on Customs Broker "Fil Logistics Pvt. Ltd." goods were examined 100% by shed officers and submitted the Examination Report - As per examination report submitted by Shed Officers, it was clearly evident that imported goods are not spare parts of Mosquito Bat instead it is Mosquito Bat in CKD condition as simply after screwing all spares together, it makes a functional Mosquito Bat and packaging material is also available in consignment - Revenue sought classification under CTH 85167920 (Electrical or electronics devices for repelling insects) instead of declared CTH 85169000 (Parts) - A SCN was issued to appellant - After adjudication, it was held that goods are liable for absolute confiscation and penalty of Rs.2.10 lakhs was imposed on appellant - In case in hand, import itself has taken place on 09.04.2022, which is much after DGFT Notfn 02/2015-20 - Therefore, the reliance made by appellant on the decision in case of M/s Nakshatra Impex 2023-TIOL-167-CESTAT-KOL is not applicable in the facts and circumstances of this case - No merit found in impugned appeal: CESTAT
- Appeal dismissed: KOLKATA CESTAT
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