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2023-TIOL-883-HC-DEL-GST
Shivbhola Filaments Pvt Ltd Vs Asstt. CCGST
GST - Petitioner challenges the impugned Order-in-Appeal dated 18.11.2021 essentially on two grounds - First, that the petitioner was not afforded an opportunity to be heard by the Adjudicating Authority and thus, the refund rejection orders were required to be set aside - Second, that the petitioner had furnished the reconciliation statement scaling down its claims for refund, yet the same were rejected on the ground that there was a mismatch in the returns filed.
Held : Although the Appellate Authority had flagged issues on the basis of which certain amount of refund as claimed by the petitioner was required to be rejected, however, no exercise was conducted to determine the extent of the refund claimed, which was untenable - The petitioner had submitted reconciliation statements, and had reduced its claims for refund substantially to restrict the same to the quantum of refund, that according to the petitioner, was due - Plainly, it is not apposite for the concerned authorities to simply reject an application for refund on the ground of any mismatch without permitting the taxpayer to reconcile the same and provide the necessary explanations - In the present case, the petitioner was not heard by the Adjudicating Authority and no such exercise for determining the amount of refund admissible was undertaken - Orders are set aside and the Petitioner's applications for refund are restored before the Adjudicating Authority for determining the amount of refund payable to the petitioner after affording the petitioner an opportunity to be heard - Petition disposed of: High Court [para 11 to 14]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-882-HC-DEL-GST
Shri Radhey Traders Vs Asstt. Commissioner of State GST
GST - Petitioner claims that sometime in June, 2019, he decided to discontinue his business as he was suffering from various medical issues - Accordingly, on 20.07.2019, the petitioner filed the application for cancellation of his GST registration obtained on 01.07.2017 - Petitioner is aggrieved by the said orders rejecting his application for cancellation of his registration - Petitioner also impugns an order dated 22.07.2021 passed by the Adjudicating Authority, cancelling the petitioner's GST registration with retrospective effect from 02.07.2017 - Aggrieved by the retrospective cancellation of the GST registration, the petitioner filed an application dated 12.04.2023 for revocation of the cancellation of his registration - This application was allowed and the petitioner's GST registration was restored - It is apparent from the above that the petitioner's grievance remains unaddressed - The effect of cancellation of GST registration from a retrospective date has a cascading effect inasmuch as the authorities concerned would also deny the Input Tax Credit to other tax payers, who had received supplies from the petitioner.
Held : Reason for proposing cancellation of petitioner's GST registration as stated in the Show Cause Notice dated 30.06.2021 is non-filing of returns; thus, absent any other reason, the retrospective cancellation cannot extend to include the period for which returns were filed by the petitioner - There is no dispute that the petitioner had regularly filed his returns till 30.06.2019 - It is the petitioner's case that he had ceased carrying on his business from June, 2019 - Clearly, in view of the said stand, the petitioner cannot be asked to file returns for the period after he had closed down his business - It is apparent that the orders passed by the Adjudicating Authority have been passed belatedly and in a mechanical manner - Bench directs the concerned authorities to, on the strength of this order, process the petitioner's application for cancellation of his registration with effect from 30.06.2019 - Petition is allowed: High Court [para 12, 15, 16, 19]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-881-HC-DEL-GST
Baleshwari Devi Vs Addl. Commissioner (Anti-Evasion) CGST
GST - Petitioner impugns the action of the respondents in ‘resuming' a sum of Rs.19.50 lakhs from the residential premises of the petitioner.
Held: There is a serious controversy whether the respondents have any authority to seize currency during search proceedings under Section 67 of the CGST Act - However, it is not necessary to examine the controversy in the present case because it is admitted that the respondents have not seized the cash - The seizure memo also does not record seizure of the cash - The respondents have innovatively coined another term 'resume' - to denote taking forcible possession of the assets without recording seizure of the said assets - There is no provision under the CGST Act, which empowers the respondents to “resume” or dispossess any person of his assets, without seizing the same - Clearly the action of the respondents in dispossessing the petitioner or any of the family members of any of their assets in the proceedings under Section 67 of the CGST Act, without seizing the same, is illegal - Respondents had after taking over possession of the currency from the residence of the petitioner proceeded to deposit the same with Canara Bank in a fixed deposit for a term of twelve months - Respondents directed to refund the amount to the petitioner by pre-mature encashment of the fixed deposit - Petition disposed of: High Court [para 8, 9, 10, 11, 15]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-880-HC-DEL-CUS
Dow Chemical International Pvt Ltd Vs UoI
Cus - Anti-dumping duty - Appeal is preferred against an interim order dated 01.11.2021 passed by CESTAT - In the appeals preferred before the Tribunal, a direction was sought for setting aside the notification dated 05.04.2021 issued by UOI - Impugned notifications were issued, based on an application lodged by respondent no.3 i.e., Manali Petrochemicals Ltd. - Investigation culminated in the DA recommending the imposition of ADD, which is the subject matter of the notification dated 01.09.2020 - As noticed, UOI accepted the recommendation and issued the Customs notification dated 05.04.2021 - The timeline fixed in Rule 18 of the ADD Rules is specific and mandatory - Since the DA made its recommendation for the imposition of ADD on FSP via the notification dated 01.09.2020, UOI was mandatorily required to take a view in the matter on or before 01.12.2020 - The Tribunal's view, that the timeframe fixed under Rule 18 of the ADD Rules would stand extended up to the date of receipt and disposal of the representations was a "glaring" and "patent" error.
Held: The moot point is that the ADD Rules, which are a delegated legislation framed by UOI/Central Government under the powers given to it by the Legislature under the above-referred provisions of the CTA, failed to envisage a scenario where a party, dissatisfied with the final findings returned by the DA could approach a Court and obtain an order that could disrupt the timelines provided in the said Rules - It is clear that both the parent legislation and the delegated legislation seek to protect the industry established in India from injury or threat of injury or material retardation, consequent upon articles being dumped in India from specified countries - While it is essential to ensure that investigations, if started, should be concluded within defined timelines, and the decision as to whether or not ADD should be imposed be taken at the earliest, the timelines so prescribed have to factor in other vagaries, including the exporter of the subject goods approaching courts in India for redressal of his/its grievance and obtaining interim orders/final judgments which may have the impact of extending the timeframe provided in Rule 18 - There are statutes which expressly provide for the exclusion of timeframes provided in the statute for completion of certain acts, on account of order(s) issued by a court - The fact that there is no such provision should not deter a court from applying the principle that no litigant/party can be made to suffer on account of order(s) or acts of the court, which require peremptory adherence - Holding otherwise would act to the detriment of parties, who are bound down by orders passed by the court, which they can ignore only at their peril - The petitioner's argument, in this behalf, in a figure of speech, amounts to "heads I win, tails you lose" - Tribunal was right in concluding that the time for which the interim orders were operable had to be excluded - The Tribunal was also right in concluding that given the fact that representations had to be considered, as directed by the High Court, it could not be said that the notification dated 05.04.2021 was void in law, as it was not issued within the timeframe provided in Rule 18 of the ADD Rules - Appeal is, accordingly, dismissed: High Court [para 37, 38, 39, 41, 41.1, 41.2, 44, 47]
- Appeal dismissed: DELHI HIGH COURT |
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