2023-TIOL-868-HC-KOL-GST
Ramesh Kumar Patodia Vs City Bank N A
GST - Citi Bank Credit card - Respondent bank offered a loan of Rs.6,50,000/- being "increased pay lite loan" to petitioner for 12 months with interest @ 13% per annum payable in 12 equated monthly instalments - Entire amount of loan has been repaid to the bank by him together with interest and IGST - By this writ application, the appellant has sought a declaration that the transaction between him and the bank was exempted from the levy of IGST [9/2017-IT(R), Sr. no.28] and that no amount on that account should have been charged, and if charged, be refunded.
Held:
Per: I P Mukerji
Question which arises is whether the tax charged by the bank on each instalment of interest together with the loan amount paid by the appellant was exigible to the said tax? - If the loan was advanced to the appellant through use of the card, then one could have understood that the service was related to the card - In this case, the bank declared the appellant card holder to be eligible to receive loan - His loan amount was advanced by a cheque or draft issued by the bank - That is to say, the loan amount was not generated by charging the appellant's card - It appears in the monthly statement issued in relation to use of the card, that the loan amount was shown and the equated monthly instalment payable indicated - The loan transaction had to be taken as an altogether separate transaction - It had no relationship with the relationship between the appellant and the bank arising out of issue, holding or operation of the credit card - Hence, the appellant's above transaction with the bank was a service which could not be termed as a credit card service and was not exigible to the Integrated Goods and Service Tax - Impugned judgment and order dated 24th June, 2022 of the single judge is set aside - The respondent Nos. 2, 3 and 4 are directed to immediately refund the IGST paid by the respondent bank to the respondent bank which in turn will refund the amount to the appellant - Exercise to be completed within three months: High Court
Per: Biswaroop Chowdhury, J:
A Banking Institution has a discretion whether to give loan to a Credit Card holder but once it chooses to grant loan to a Credit Card holder it has to treat the loan similar to other types of loan, and cannot treat the same as Credit Card facility and charge goods and service tax on it - Loan and Credit Card Services cannot be equated - Thus loan to a Credit Card holder is to be treated as a loan and nothing else - When goods and service Tax are exempted in case of loan transaction, it is applicable to all transactions coming under the category of loan - Any exceptions made with regard to category of loan will go against the letter and spirit for which loan schemes are made and it will be violative of Article 14 and 21 of the Constitution of India - Hence this Appeal stands allowed: High Court
- Petition allowed: CALCUTTA HIGH COURT
2023-TIOL-867-HC-DEL-GST
Kritika Agarwal Vs UoI
GST - Petitioner is essentially aggrieved by the cancellation of her GST Registration - Petitioner has also sought a refund of Rs.20,00,000/- which she claims was not deposited voluntarily against any demand, but under pressure as exerted by respondent authorities - It is material to note that the petitioner's appeal against the Order-in-Original dated 28.10.2022 was rejected solely on the ground of limitation.
Held: Petitioner was required to file an appeal before 28.01.2023, however, the petitioner filed the same on 13.02.2023 - In terms of Section 107(4) of the CGST Act, the Appellate Authority had the discretion to condone the delay in filing the appeal, not exceeding one month - In the present case, it is apparent that the petitioner was interacting with the Department for resolution of the matter regarding cancellation of the GST Registration and in our view, the petitioner had sufficiently explained the delay of fourteen days - The only reason for cancellation of the GST Registration as disclosed in the Order-in-Original is that, the DC(AE), CGST, North Delhi had, by a letter dated 30.09.2022, directed cancellation of the registration of the taxpayer - It is trite law that an authority that is vested with the power to take a decision is required to independently exercise the power and cannot do so on mere directions of another authority, without independently satisfying itself of the said decision - The cancellation of the GST Registration of a taxpayer has wide implications for the taxpayer and has the propensity of bringing the taxpayer's business to a standstill - It could never be the intention of the legislature to exclude persons from carrying on legitimate business - Thus, the measure of cancellation of GST must be exercised with circumspection and only in cases, where it is necessary - Show Cause Notice dated 06.10.2022, the Order-in-Original dated 28.10.2022 and the Order-in-Appeal dated 30.05.2023 are set aside - It would be open to the respondent authority to issue a proper Show Cause Notice setting out the reasons for the proposed action - Petition is disposed of: High Court [para 12, 13, 14, 16, 17]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-866-HC-MP-GST
N P Infra Projects Pvt Ltd Vs UoI
GST - This Court by earlier order had directed the complaint/representation of petitioner to be considered within two weeks - The same was made by petitioner on 20.05.2019 and as per petitioner, same has not been decided till now and impugned notice has been issued - It is hence directed that in case no decision has been taken upon petitioner's application/representation dated 20.05.2019 till now, then the Nodal Officer shall take a decision thereupon within a period of six weeks and thereafter only the respondents shall proceed further in matter pursuant to notice - Till the decision by Nodal Officer, impugned notice shall be kept in abeyance: HC
- Writ petition disposed of: MADHYA PRADESH HIGH COURT
2023-TIOL-865-HC-KERALA-CUS
Tasty Nut Industries Vs CC
Cus - The appellant is stated to be a leading manufacturer and exporter of cashew based products - He had initially exported 400 cartons of organic cashew Kernels, which was rejected by overseas agency and duly returned to Cochin Port so as to enable the appellant to reexport the goods after curing defects and reprocessing the same - During inspection, 200 cartons consisting of 4536 Kg of organic cashew kernels were found unfit for home consumption and a confiscation order was passed confiscating the said consignment and directing a destruction of same apart from imposing a penalty on appellant - While it is no doubt well settled that extraordinary jurisdiction of this Court under Article 226 can be exercised in particular cases notwithstanding the existence of an alternate remedy provided under the statute, conduct of appellant does not warrant the exercise of extraordinary jurisdiction of this court - Appellant had earlier approached this Court through a Writ Petition impugning the confiscation order and said Petition was eventually disposed by relegating the appellant to his alternate remedy of pursuing appellate remedies under the statute - What is significant is that the said route was chosen by appellant himself and it was on the basis of averments in Review Petition filed against prior dismissal of Petition that Single Judge had disposed petition by relegating the appellant to alternate remedy of an appeal before Appellate Authority under the statute - Having proceeded down that route, appellant cannot now approach this Court aggrieved by order of First Appellate Authority and prudence would require that this Court refrain from interfering with such appellate orders passed by authorities in hierarchy of appeals provided under statute - Court is unable to accept the submission of appellant that Appellate Tribunal is not an efficacious alternate forum for redressal of his grievances - No reason found to interfere with impugned judgment and for the reasons stated in this judgment, appeal dismissed without prejudice to any of contentions of appellant on merits: HC
- Appeal dismissed: KERALA HIGH COURT
2023-TIOL-670-CESTAT-MUM
JSW Steel Ltd Vs CCE
CX - Appellants are manufacturer of excisable goods under Chapter 32 & 33 of Central Excise Tariff Act, 1985 availing Cenvat Credit facility in respect of duty paid on input capital goods and every tax paid on input services - During course of manufacture of various product certain product i.e. Mills Scale emerges which has been cleared by appellant on payment of Central Excise duty for period from April, 2006 to August, 2010 - It was also observed that these goods were not reflected in monthly ER-1 return filed by appellant - A SCN was issued to appellant - The issue involved i.e. Whether duty can be demanded on manufacturing waste arising during course of manufacture even if same is cleared for certain consideration is no longer res-integra and have been considered by this Tribunal time again - The Circular of 2009 relied upon by Commissioner (A) in impugned order has been withdrawn by Board Circular 1027/15/2016-Cx - Accordingly, no merits found in impugned order, same is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
