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2023-TIOL-100-SC-VAT
Santhosh Maize And Industries Ltd Vs State of Tamil Nadu
Whether term 'starch of any kind' in Taxation Entry No.61 should be interpreted broadly and encompasses all types of starch, including maize starch - YES: SC
Whether 'Maize Starch' is taxable at 4% under Entry No. 61 of Tamil Nadu General Sales Tax Act - YES: SC
- Assessee's appeal dismissed: SUPREME COURT OF INDIA
2023-TIOL-95-SC-ST
HDFC Bank Ltd Vs CCT
ST - The holders of credit cards provided by the appellant, as issuing bank, procure goods and services from merchant establishments and the expenditure so incurred becomes due for payment by the holder to the appellant at the end of the agreed-upon cycle as indicated in the billing statement - The debt to the merchant establishment is transferred, at pre-determined discount, to an acquiring bank, viz., VISA or Mastercard, which is credited by the issuing bank with the invoiced amount and the said discount is split between them - In cross-border procurements, the inter-bank transaction is agreed to be effected at rates of exchange of the currencies involved that prevail on the date of the transaction and to which the issuing bank adds 'mark-up' while billing the holder of the credit card - It is this additional amount [mark-up] retained by the appellant that is bone of contention between the tax authorities and the assessee - High Court held that 'mark-up' charged by the appellant is neither received nor billed in convertible foreign currency and such being the determinant, along with location, for the rendering of service outside the tax jurisdiction, the claim of the appellant to be exempt from tax fails - The complexity of exports and the lack of distinguishment for exports during much of the period of dispute is obvious and it may not be unnatural for an assessee to resort to superficial interpretation without intention to evade tax - Show cause notice and the impugned order lack convincing evidence of suppression or misrepresentation and, in the circumstances of discharge of tax liability, along with interest, for the period of dispute, it would have been appropriate for the proceedings to have terminated under section 73(3) of Finance Act, 1994 without issue of show cause notice - The imposition of penalty under section 78 of Finance Act, 1994 is not merited.
Held - counsel for the appellant stated that identical issue was dealt with by this Court in Civil Appeal Diary No. 3690/2017 - Accordingly, notice issued on civil appeal as well as on the application seeking condonation of delay - Tagged with Civil Appeal Nos. 10172-73/2016.
- Notice issued: SUPREME COURT OF INDIA 2023-TIOL-775-HC-KERALA-GST
Penuel Nexus Pvt Ltd Vs Addl. Commissioner
GST - Petitioner had GST registration - Due to the COVID-19 pandemic, the petitioner's business got affected and he was prevented from filing returns on time - On this ground, Respondents cancelled his GST registration and the appeal too was rejected on the ground of delay - Aggrieved, the petitioner is before the High Court.
Held: P etitioner's GST registration was cancelled on 10.08.2022 and they preferred appeal on 07.03.2023, i.e., after 209 days, which is undoubtedly beyond the statutory period fixed under Section 107(4) of the Act - CGST Act is a special statute and a self-contained code by itself - Section 107 has an inbuilt mechanism and has impliedly excluded the application of the Limitation Act - It is trite that the Limitation Act will apply only if it is extended to the special statute - It is also rudimentary that the provisions of a fiscal statute have to be strictly construed and interpreted - Court is of the view that there is no illegality in the action of the 1st respondent in rejecting the appeal as time-barred - Writ petition is meritless and is consequentially dismissed: High Court
- Petition dismissed: KERALA HIGH COURT
2023-TIOL-774-HC-MUM-CX
Ronak Industries Vs Asstt. CCE & Customs
CX - Petitioner is seeking a direction inter alia to remove the lien/charge/encumbrance/mutation entry of Respondent No.1 and 2 from the records of Respondent No.4 and 5 in respect of the immovable property and to direct Respondent No. 4 to accept and register the document of sale/sale certificate issued by Respondent No.3 in favour of the Petitioner – It is the case of the petitioner that they came to know about the said Secured Asset through the Free Press Journal newspaper wherein a Sale Notice [dated 27th June 2022] was published for sale of the Secured Asset under the provisions of SARFAESI Act - Petitioner took inspection of the Secured Asset on 14th July 2022 along with the officers of Respondent No.3 and subsequently participated in the e-auction held on 8th August 2022 - In the said e-auction held on 8th August 2022, the Petitioner was declared as the highest and successful bidder at a price of Rs. 4.55 crores and thus the Petitioner deposited the required 25% of the bid amount [i.e. Rs. 1,13,75,000/-] with Respondent No.3 by 10th August 2022 - Based on Respondent No.3's confirmation, Yes Bank Ltd. disbursed a loan of Rs. 3 crores to the Petitioner on 22nd September 2022 and, accordingly, the Petitioner remitted the balance 75% of the bid amount of Rs. 3,41,25,000/- on 22nd September 2022 to Respondent No.3. - Petitioner has collected the original documents and taken physical possession of the Secured Asset from Respondent No.3 - Petitioner applied for registration of the Sale Certificate with Respondent No.4 through the online mode and sought appointment to register the Sale Certificate - Again, at this juncture, Respondent No.4 raised another query stating that Respondent No.2 has directed Respondent No.4 not to register any transaction in respect of the Secured Asset [vide letter dated 7th July 2022] as an amount of Rs.1,34,61,909/- towards GST duty, penalty and interest is due to be recovered from M/s Goldstar Polymer Pvt. Ltd. ('Borrower') - Petitioner has been unable to get the Sale Certificate issued in its favour registered as required by law - It is under these circumstances the Petitioner has filed the present Petition to remove the charges/lien/encumbrances and mutation entry of Respondent No.1 and 2 from the records of the Respondent No. 4 and 5 and for a direction to register the Sale Certificate/Sale Deed issued by Respondent No.3 to the Petitioner - Petitioner submits that Respondent No.3 has sold the Secured Asset under the provisions of the SARFAESI Act, and thus, as per Section 26-E thereof, a Secured Creditor who has registered the security interest or other creditor who has registered the attachment order in his favour with Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI) , shall have priority over the claims of other creditors having a subsequent security interest created over the property in question - Petitioner further submitted that Respondent No.1 and 2 have not registered their claim and/or attachment order under Section 26B(4) of the SARFAESI Act which is also a mandatory requirement for Respondent No.1 and 2 to claim priority over the sale proceeds of the Secured Asset.
Held : Bench finds that issue raised in the present Petition is squarely covered by the decision of the Full Bench of this Court in the case of Jalgaon Janta Sahakari Bank Ltd. and Anr . Vs Joint Commissioner of Sales Tax Nodal 9, Mumbai and Anr . [2022 (5) Mh.L.J . 691] - In this decision, the Full Bench has clearly held that if the security interest of the secured creditor is registered with CERSAI, then the secured creditor would get priority over the dues of the Government - Since Respondent No.1 and 2 have not registered their claim/attachment order with CERSAI, Respondent No.1 and/or 2 cannot claim priority over dues of Respondent No.3 - Lien/charges/encumbrance/mutation entry, if any, registered with Respondent No.5 by Respondent Nos. 1 & 2 cannot be allowed to stand and Respondent No.4 would have to be directed to record/register the Sale Certificate/Sale Deed under the provisions of the Registration Act, 1908 as free from any encumbrances of the Respondent No. 1 and 2 - Writ Petition is allowed in terms of prayer clauses (a), (b) and (d) respectively - Respondent No.3 [Bank of Baroda], after appropriating its entire dues from the sale proceeds of the Secured Asset, shall remit the surplus, if any, to Respondent Nos.1 and 2 [AC, CEx , Daman, Vapi] - Writ Petition is accordingly disposed of: High Court [para 17, 18, 19, 20, 21]
- Petition allowed: BOMBAY HIGH COURT |
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