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2023-TIOL-112-SC-GST
State of Gujarat Vs Choodamani Parmeshwaran Iyer
GST - A summons came to be issued to the respondents calling them to remain present for the purpose of interrogation in connection with an enquiry against one M/s Iyer Enterprises - Respondents apprehended arrest and, therefore, filed writ applications before the High Court and which came to be disposed of - State of Gujarat being dissatisfied with the aforesaid order passed by the High Court is before the Supreme Court with the present appeal - Counsel for Revenue pointed out that as many as 14 summons have been issued to one of the respondents and that only once, one of the respondents appeared for the purpose of interrogation; that it has been 5 years that the inquiry is still pending; that, therefore, only after the respondents are interrogated; that the department will be able to ascertain whether there is any evasion or not.
Held : Bench is not convinced with the manner in which the High Court has disposed of both the writ applications filed by the respondents - It was expected of the respondents to honour the summons and appear before the authority for the purpose of interrogation - It is well-settled position of law that power to arrest a person by an empowered authority under the GST Act could be termed as statutory in character and ordinarily the writ court should not interfere with exercise of such power - Ordinarily the Court should not impose any condition before effecting arrest - If any conditions are imposed before effecting arrest for instance giving prior intimation to the person concerned etc., the statutory provisions would be rendered ineffective, nugatory and meaningless - The position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked for anticipatory bail - At the stage of summons, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure - There is a fundamental distinction between a petition for anticipatory bail and the writ of mandamus directing an officer not to effect arrest - A writ of mandamus would lie only to compel the performance of the statutory or other duties - No writ of mandamus would lie to prevent an officer from performing his statutory function - Bench is still inclined to give one more opportunity to both the respondents to appear before the authorities for the purpose of recording of their statements - If the respondents fail to appear, then it shall be open for the authority concerned to proceed further in accordance with law - Common order dated 24.12.2018 passed by the High Court is set aside and the appeals are allowed: Supreme Court [para 11, 12, 14, 16, 17, 19, 20]
- Appeals allowed: SUPREME COURT OF INDIA
2023-TIOL-860-HC-JHARKHAND-GST
Esl Steel Ltd Vs Pr.CCGST & CE
GST - TRAN-1 - Only the past obligation of the past period gets extinguished once the new management has taken over the Company as part of the Resolution Plan - Adjudicating authority was correct in holding that as the Apex Court [in Ghanshyam Mishra and Sons Private Ltd. Yrs. Edelweiss Asset Reconstruction Company Ltd. (2021) 9 SCC 657 ] was of the view that the current management was not a taxpayer for the period prior to 04.06.2018. i.e., the date of change of management and, therefore, the liability of the earlier management should not be shifted to the current management - Likewise, the credit available to the earlier management will also not be available to the current management as the current management was not a taxpayer during the period of procurement of inputs or capital goods as availed in the TRAN-1 filed on 30.11.2022 - Consequently, the Order-in-Original passed by the Additional Commissioner whereby the Respondent No. 4, has confirmed the demand of Rs.6,02,34,616/- u/s 74(9) is quashed and set aside along with all consequential orders - Bench also categorically holds that the petitioner can also not take credit of the ITC of the earlier period of Rs.92,13,412/- i.e., prior to 17.04.2018; the date on which the National Company Law Tribunal has approved the resolution plan of the Petitioner - Writ application stands partly allowed: High Court [para 8 to 10]
- Petition partly allowed: JHARKHAND HIGH COURT
2023-TIOL-859-HC-DEL-GST
Chegg India Pvt Ltd Vs CCGST
GST - Export of education services - Zero Rated Supplies - s.16 of the IGST Act, 2017 - Petitioner is aggrieved by rejection of its claims for refund of ITC on Common Area Maintenance Charges (CAM) charges aggregating Rs.17,75,688/- and rejection of refund of ITC aggregating Rs.7,29,050/- in respect of certain invoices, which were not furnished - As their appeals were rejected, the present petition.
Held : Plain reading of the impugned order indicates that the Appellate Authority had merely referred to Section 17(5)(b) and rejected the appeal - There is no discussion as to how Section 17(5)(b) of the CGST Act is applicable to CAM charges and catering charges - Although the Appellate Authority has held that the petitioner has not fulfilled the eligibility conditions for availing ITC as per Section 16 of the CGST Act, the reasons for the said conclusion are not clearly discernible - There is a fundamental error in the manner in which the petitioner's refund applications have been processed - Authority had not issued any notice as required under Rule 92(3) of the Rules, 2017 setting out the reasons for rejection of the refund - Petitioner, thus, had no opportunity to satisfy the concerned authorities as to its claim for refund to the extent it has been rejected - Order set aside - Authority is at liberty to issue a fresh notice - Petition disposed of: High Court [para 8, 9, 10]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-858-HC-MUM-CX
CCGST & CE Vs Hindustan Petroleum Corporation Ltd
CX - Department alleged that the respondent had not complied with the condition of notification 28/2002 dated 13 May, 2002 inasmuch as the Ethanol Blended Petrol (EBP) (Gasohol) did not satisfy the Bureau of Indian Standard's (BIS) specification 2796:2000, hence, two show cause notices were issued to the respondent for the period April, 2003 to June, 2004 demanding total duty of Rs.13,37,17,740/- - Revenue contended that since the Vashi Terminal did not have the facility to conduct all the 15 tests required for BIS 2796:2000 the demand was issued - Also a demand notice was issued for recovery of the said amount under Section 11D of C.E. Act alleging that though the duty was collected from the customers but the same was not deposited with the Government - The respondent's appeal against the Order-in-Original dated 29 November, 2013 passed by the Commissioner of Central Excise, Belapur, Navi Mumbai has been allowed by Tribunal, therefore, the present appeal.
Held: On such EBP test reports being disputed by the department as carried out at Vashi Terminal, the appellant subjected the samples tested at their Refinery and produced test certificates dated 1 June, 2004 and 5 June, 2004, which conformed to the BIS specifications 2796:2000 - Tribunal has rightly observed that it could not lose sight of the fact that the respondent was a Public Sector Undertaking and on many occasions, in absence of facilities at Government Laboratories, the tests conducted in well-equipped laboratories are accepted by the department for classification purposes under the Tariff Act - And for such reason, the test reports on EBP at Vashi Terminal could not be brushed aside unless contrary test result was produced by the revenue - Such goods were also sold from other Terminals of the respondent in Maharashtra and no objection was raised by the Department nor any notice was issued to other terminals proposing denial of benefit of exemption on the ground that the EBP did not conform to the said BIS specification - The price per kilolitre of EBP was similar to the price charged by the respondent for unblended motor spirit to the customers - In the invoice, the duty paid on motor spirit (EBP) was not shown separately attributable to Motor spirit and Ethanol, but the sale price of EBP was a composite inclusive of duty - Thus, the price charged was inclusive of duty, and the duty attributable to Ethanol was not shown and recovered separately in the invoice, the same could not be recoverable under Section 11D of C.E. Act - This is a case in which the revenue could not show that the respondent, after blending ethanol with duty paid motor spirit collected amounts separately, mentioning the duty on ethanol in the invoices, but the same was not credited to the Government - In such situation, Section 11D of C.E Act was certainly not attracted – Revenue appeal rejected: High Court [para 16, 17, 18]
- Appeal rejected: BOMBAY HIGH COURT
2023-TIOL-857-HC-MUM-CUS
CC Vs Air India Ltd
Cus - Tribunal disposed of the appeal and confirmed the demand of duty on the ground that the respondent assessee has not been able to satisfy the post importation condition in respect of shortages determined - However, the Tribunal set aside the order on confiscation of the goods and redemption fine imposed - Insofar as the penalty under Section 112(a) of the Customs Act is concerned, the Tribunal set aside the penalty - On the above backdrop, the appellant/revenue has filed the present appeal.
Held: The sequitur of not challenging the setting aside order of confiscation of goods brings about a result of the Revenue taking a position that provisions of section 111 of the Act dealing with confiscation are not applicable to the case of the respondent/ assessee - If that be so, the question of imposing redemption fine in lieu of confiscation would not arise - The provisions of Section 125 would get attracted only if the goods are confiscated - Since in the instant case, the appellant/revenue has accepted the setting aside order of confiscation of goods, question of applying provisions of Section 125 dealing with the redemption fine which are in lieu of confiscation would not arise and, therefore, on this ground itself, question (a) as raised by the appellant revenue does not arise - In Order-in-Original, the adjudicating authority observes that the goods were released under bond and, therefore, redemption fine is imposable on these goods – Tribunal has given a categorical finding of fact that the goods were never seized or released provisionally against bond and bank guarantee - On a query by the Court to the appellant/ revenue to produce any bond or any bank guarantee against which the goods were released provisionally, the appellant revenue could not produce the same - Therefore, this finding of fact that goods were not released against bond and bank guarantee is uncontroverted - The appellant/revenue has accepted that the goods were not required to be confiscated - The confiscation order having set aside, consequently the penalty under Section 112 (a) is also not applicable - Tribunal also took note of the fact that the entire case is made on the basis of the report prepared by the external auditors as part of internal assessment and control mechanism adopted by the respondent/ assessee to verify and manage the inventory of imported goods and, therefore, there is no deliberate act on the part of the assessee to evade the duty - These are the findings of facts on the basis of which the penalty has been set aside and the same being not alleged as perverse, no question of law would arise – As no substantial question of law arises for consideration, Revenue appeal is dismissed: High Court [para 12, 13, 17]
- Appeal dismissed: BOMBAY HIGH COURT
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