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2023-TIOL-864-HC-JHARKHAND-GST
Ambey Mining Pvt Ltd Vs Commissioner of State Tax
GST - The case of petitioner is that two SCNs were issued and both are for the same period for self-same cause of action (except March, 2020) issued by two different authorities i.e., Deputy Commissioner of State Tax and Assistant Commissioner of State Tax - Both the impugned SCNs attempted to start a fresh adjudication proceeding in respect of self- same cause of action which has already attained finality by First Appellate Order - The first Appellate Order passed by Joint Commissioner of State Tax (Appeal) was accepted by department and no further appeal was filed and thus; same has attained finality and therefore same issue or cause of action cannot be re-agitated in a fresh proceeding as same is contrary to settled proposition of law - Since the 1st appellate order is not subjected to Section 108, Section 113, Section 117, Section 118; thus, by virtue of sub-Section (16) of Section 107, it has attained finality - The Respondents being not aggrieved by First Appellate Order did not challenge the same or availed remedies available under law but accepted the same and allowed the same to attain finality; thus now they cannot be allowed to turn around and re-agitate a matter afresh which has already come to an end by due process of law - After passing of 1st appellate order, only course available with Respondents were to challenge first Appellate Order before Appellate Tribunal under Section 112 of JGST Act, if at all aggrieved, and therefore, impugned SCNs are wholly without jurisdiction, without authority of law and also barred by principles of res-judicata - So far as demand of interest with respect of March, 2020 is concern; demand in impugned first SCN is also erroneous and is contrary to State GST Notfn 451 as amended by Notfn 31/2020-State Tax and corresponding Central GST Notfn 13/2017-Central Tax as amended by Notfn 31/2020-CT - As per said Notification as a COVID-19 relaxation Measures, rate of interest for the month of February, 2020 to April, 2020 was reduced to Nil for first 15 days of delay and 9% thereafter in place of 18%, for registered persons having annual turnover above Rs.5.00 Cr. - Since the annual turnover of Petitioner is above Rs.5.00 Cr.; hence, they are entitled to benefit of said notification - Considering the extension of limitation for filing of GSTR-3B returns and reduction in rate of interest, amount of interest demand should have been Rs.12,791.44/- only for month of March, 2020 as against demand of interest of Rs.6,63,026/- in impugned SCN for the month of March, 2020 - Thus, petitioner is liable to pay interest only for the month of March, 2020 as against demand of interest - Thus, petitioner is directed to pay the same amount within a period of two weeks, if not paid, from the date of receipt/production of copy of this Order - Both the impugned SCNs, are hereby, quashed and set-aside: HC
- Writ application allowed: JHARKHAND HIGH COURT
2023-TIOL-863-HC-JHARKHAND-GST
Shree Ram Agrotech Vs State of Jharkhand
GST - Form GST DRC-01 dated 20.12.2018 cannot be considered as an opportunity provided by the Respondent to the Petitioner before passing of the Impugned Summary Adjudication order in Form GST DRC–07 - It is crystal clear that no show cause notice in terms of Section 73(1) of the JGST Act, 2017 has been served by the Respondents upon the Petitioner towards imposition of the tax, interest and penalty under the JGST Act amounting to Rs.8,04,134/- for the period concerned - Additionally, in the present case, it is an admitted fact that no detailed adjudication order, as required under Section 73(9) of the JGST Act, 2017, has been passed by the Respondents - Furthermore, admittedly, no such adjudication order is available on the records of the Respondents and now it is well settled that the Form DRC-07, alone and in the absence of issuance of detailed adjudication order, can make an Assessee liable to pay any tax, interest or penalty - Appellate authority has not considered any of the contentions raised by the petitioner and dismissed the appeal on the ground that three opportunities of hearing had been provided but they failed to appear on either of the dates and the Assessee has also not annexed required documents/adjudication order - Appellate authority should have decided the case on merit - Summary Order in Form GST DRC-07 as well as the appellate order is quashed and set aside – Petition allowed: High Court [para 7, 8, 9, 10]
- Petition allowed: JHARKHAND HIGH COURT
2023-TIOL-862-HC-MUM-CUS
UPS Sales Vs UoI
Cus - Trade mark "INGCO" - Grievance of the petitioners is primarily on the action of respondent nos. 2 to 7 in not permitting the petitioners clearance of the goods imported by petitioner no. 1 on the ground of a trade mark dispute between the petitioners and respondent no. 8 being sub judice .
Held: There is much substance in the contentions as urged on behalf of the petitioners that in absence of any orders obtained by respondent no. 8 against the petitioners in respect of trade mark in question, it would not be legal and valid for the customs authorities to prevent the petitioner from clearing of the goods merely because a complaint has been received from respondent no. 8 - Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 provide for a complete scheme in relation to the goods infringing Intellectual property rights falling under the definition of Intellectual Property as defined in Rule 2(a) - It is only after the registration of notice by the Commissioner, the import of infringing goods into India is deemed to be prohibited within the meaning of Section 11 of the C.E. Act as ordained by Rule 6 - It is thus clear that without any of the conditions in the Rule being satisfied, the Customs department has withheld clearance of the goods of the petitioner - For such reason, action on the part of the Customs officials to withhold clearance of the petitioners goods would be required to be held to be ex-facie illegal - There is no warrant for the customs authorities in not permitting release of the goods in question in the absence of any right in respect of the mark in question having crystallized in favour of respondent no. 8 at the time petitioner sought clearance of the goods - Goods in question, subject matter of bill of lading no, EXSH2310608, are permitted to be cleared in accordance with law – Petition allowed: High Court [para 8, 14, 15, 17]
- Petition allowed: BOMBAY HIGH COURT
2023-TIOL-861-HC-AHM-CUS
AIA Engineering Ltd Vs UoI
Cus - Anti-dumping duty - Based on the recommendation made by the respondent no.2, the respondent no.1 extended the imposition of anti-dumping duties for a period of five years vide Notification dated 13.07.2018 - It is submitted that thereafter, the respondent no.2 again initiated second sunset review investigation on the imports of 'Grinding Media Balls' from Thailand and China PR; that thereafter, the respondent no.2 issued final finding and recommended to further extend the imposition of anti-dumping duties on the imports of ‘Grinding Media Balls' from Thailand by Notification dated 12.04.2023 - It is submitted that the respondent no.1 has not concluded the review and imposition of anti-dumping duties as per the recommendation vide Notification dated 13.07.2018 will expire on 12.07.2023 at midnight and, hence, the petitioner preferred present petition - Counsel submitted that in similar type of matter being Special Civil Application No.1399/2018, this Court, while issuing notice on 07.02.2018, has granted relief in favour of the concerned petitioner.
Held: Issue Notice to the respondents returnable on 26th July, 2023 - Till next date of hearing, ad-interim relief in terms of Para No.20(B)(1): High Court [para 6, 7]
- Ad interim relief granted: GUJARAT HIGH COURT
2023-TIOL-663-CESTAT-MUM
Sharda Cropchem Ltd Vs CCGST & CE
ST - Appellant has a business establishment in India - They are purchasing goods in foreign countries and selling the same in foreign countries - It is also very clear that the said goods are neither imported into India nor are exported outside India - It is also very clear that various services were received in respect of the said goods; that all services were provided by service providers situated outside India and they were consumed outside India and none of them were received in India - Even if a person has a fixed establishment in India, but if the services are provided and consumed in foreign country, then they are not chargeable to service tax in terms of Section 64 of Finance Act, 1994 - The provisions of Section 66A of Finance Act, 1994 will operate when the person is having a fixed place of business in India and services are provided from outside India and consumed in India - In the present case, the services were not consumed in India - Therefore, as observed by Delhi High Court in the case of Orient Crafts Ltd. [ 2006-TIOL-271-HC-DEL-ST ], Bench is of the firm view that in the present case, the services were not consumed in India - Service tax was, therefore, not liable to be paid by the appellant in the present case - Appellant itself has paid service tax subsequent to the transactions and, therefore, they were eligible for the refund - During the period for which appellant did not pay service tax, Revenue did not initiate any enquiry and did not raise any demand against the appellant – Appellant was in the same activity from 01.10.2007 and they paid service tax in the month of September 2012 and during said period of five years, Revenue did not raise any demand on the appellant – Held, therefore, that the appellant was not liable to pay said service tax and refund of the service tax paid by them granted through refund order dated 28.05.2013 was in accordance with law – O-in-appeal is set aside and appeal is allowed: CESTAT [para 5]
- Appeal allowed: MUMBAI CESTAT |
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