|
2023-TIOL-118-SC-GST
State Tax Officer Vs Shabu George
GST - The present Writ Appeal is directed against an order passed by the Single Judge where a writ petition filed by the Writ Appellant was disposed of with directions to the Departmental authorities to consider and pass orders w.r.t. a representation filed by the Appellant to release the cash that was seized from his premises in connection with an investigation being done under the GST Act - During the pendency of this writ appeal, the Intelligence Officer passed an order dated 21.3.2023, disposing the representation preferred by the appellants as per the directions of the learned single Judge. On a reading of the order that rejects the said representation we find that the stand taken by the Intelligence Officer is essentially that in view of the specific provisions of Section 67(2) of the CGST Act, which authorises the seizure of 'things', which inter alia includes cash also as held by the High Court of Madhya Pradesh in the judgment dated 26.8.2020 in WP(C) No. 8204 of 2020, the authority was justified in seizing the cash and retaining the same pending a culmination of the investigation - The High Court held that the stand taken by the Intelligence Officer in the order dated 21.03.2023 is somewhat puzzling - While Section 67(2) of the CGST Act does authorise seizure of things, including cash in appropriate cases, we do not think that the present is a case that called for a seizure of the cash found in the premises of the appellants at the time of the search - The power of any authority to seize any 'thing' while functioning under the provisions of a taxing statute must be guided and informed in its exercise by the object of the statute concerned - In an investigation aimed at detecting tax evasion under the GST Act, we fail to see how cash can be seized especially when it is the admitted case that the cash did not form part of the stock in trade of the appellant's business - It is evident from the order of the Intelligence Officer that the cash that was seized from the premises of the appellants was not the stock in trade of the quarry business that was conducted by the appellant - That the Intelligence Officer found it suspicious that that much amount of money was kept idle in the house of the appellant and not deposited in bank leading to the conclusion that the same was derived from illicit sources, reveals the extent to which the authorities are misinformed of their powers & limits of their jurisdiction - Such findings of the Intelligence Officer could perhaps have been justified had he been an officer attached to the Income Tax Department - Such findings are wholly irrelevant in the context of the CGST Act - Hence the seizure of cash from the premises of the appellant was wholly uncalled for and unwarranted - Moreover, since the Department retained the cash for over 6 months & is yet to issue an SCN, there is no justification for continued retention of the cash.
Held - The judgment and order passed by the High Court do not warrant any intervention with - Hence the SLP is dismissed: SC
- SLP dismissed: SUPREME COURT OF INDIA
2023-TIOL-938-HC-CHHATTISGARH-GST
Gayatri Ventures Vs State of Chhattisgarh
GST - Petitioner sought a an appropriate direction to respondents to decide the representation that they had made for refund of excess GST that was required to be paid by them on the change of GST rate on works contract from 12% to 18% w.e.f. 18.07.2022 - Petitioner is permitted to submit fresh representation before respondent No.2 & 3, raising grievance as raised in this petition - On petitioner's submitting representation, respondents shall consider and decide the same at the earliest preferably within an outer limit of 60 days - While taking decision, respondents are expected to take into consideration similar decisions that the State Government has taken in respect of contracts executed by Contractors with Irrigation Department, Water Resources Department and other such departments: HC
- Writ petition disposed of: CHHATTISGARH HIGH COURT
2023-TIOL-932-HC-DEL-GST
Balaji Enterprises Vs Pr. Addl. Director General Directorate General of GST Intelligence
GST - This is one of the cases where tax payers have been unable to operate their bank account on account of provisional attachment order issued under Section 83 of CGST Act, 2017 despite the said order ceasing to be operative in terms of Section 83(2) of CGST Act - This Court had observed that a procedure is required to be adopted to apprise the banks to permit operations of accounts after provisional attachment orders have ceased to be operative under Section 83(2) of CGST Act - It is expected that Department would act expeditiously in ensuring that where attachment orders are no longer operative, said fact is duly communicated to concerned banks - Since the matter has been referred to Policy Division, court defer the hearing in this regard for a period of four weeks - The Chairman, CBIC shall ensure that an appropriate procedure is devised in meanwhile and same is placed before this Court by way of an affidavit before next date of hearing - A policy may have to be placed before GST Council - Said contention is unmerited - The provisions of Section 83(2) of CGST Act are clear and an order of provisional attachment would cease to be operative after one year - The only difficulty faced by assessee is that the said fact is not communicated to concerned banks: HC
- Matter listed: DELHI HIGH COURT
2023-TIOL-931-HC-DEL-GST
Balaji Enterprises Vs Pr. Addl. Director General Directorate General of GST Intelligence
GST - Application filed, inter alia, praying that directions be issued to petitioner's bankers to comply with judgement dated 30.05.2023 - There are a large number of matters where orders freezing the bank accounts under Section 83 of CGST Act, 2017 have elapsed in terms of Section 83(2) of CGST Act, but bankers are not permitting the operation of bank accounts for want of further communication from Department - Clearly, tax payers are not required to run from pillar to post for resuming the operation of bank accounts, which were interdicted by orders that are no longer operative - Prima facie, concerned officer freezing the bank account under Section 83 of CGST, Act is also obliged to communicate to concerned bank that said order is no longer operative, once the period of one year has elapsed - A procedure is required to be adopted to obviate any such petitions or applications - Notice be issued to the Chairman, CBIC - Mr. Singla is requested to accept notice and he shall communicate the same to CBIC: HC
- Matter listed: DELHI HIGH COURT
2023-TIOL-720-CESTAT-DEL
Trinity International Forwarders Vs CC
Cus - CBLR, 2013 - Appellant assails the Order-in-Original passed by the Commissioner of Customs (Preventive) wherein he held that the appellant had violated Regulations 11(d), 11(e) and 11(n) of CBLR, 2013 and cancelled the Customs Brokers licence issued to the appellant, forfeited its security deposit and imposed a penalty of Rs. 50,000.
Held: Case of the Revenue is that the exporter over-invoiced exports to claim ineligible drawback - The appellant had filed the Shipping Bills as per the documents provided to it by the exporter - According to the Revenue, by filing Shipping Bills with over-invoiced export values, the appellant violated Regulation 11(d) - While the transaction value is decided between the exporter and importer, value for determining the duty under the Customs Act is a part of assessment - The power to assess including determining the value lies with the importer/exporter (self-assessment) or with the proper officer (re-assessment) - The Customs Broker has neither any authority nor any responsibility to assess the value of the imported goods or export goods - Customs Broker is a stranger to this contract and has no locus standi with respect to the transaction value - Customs Broker also has no authority to inspect or examine the goods and so the possibility of the Customs Broker suspecting that the goods may have been overvalued also does not arise - Held that the appellant has not violated Regulation 11(d) - Regulation 11(e) requires the Customs Broker to NOT impart any incorrect information to the exporter - Bench finds no allegation that the appellant, as the Customs Broker, has imparted incorrect information, therefore, evidently, the appellant did not violate Regulation 11(e) - Insofar as regulation 11(n) is concerned, it requires the Customs Broker to verify correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information - IEC number is issued by DGFT, GSTIN issued by the GST officers and these qualify as reliable, independent, authentic documents - Section 79 of the Evidence Act, 1872 requires even Courts to presume that every certificate which is purported to be issued by the Government officer to be genuine - Appellant produced copies of the Aadhar card and PAN Card of Shri Uday Desai and the IEC certificate of M/s. Janman Lifestyles Pvt. Ltd. which it had obtained as a part of Know Your Clients (KYC) verification - KYC documents submitted by the appellant and verified and confirmed by the Commissionerate, leave no manner of doubt that the appellant had fully met its obligations under regulation 11(n) and had not violated it - Appeal is allowed and the impugned order is set aside with consequential relief: CESTAT [para 7, 11, 12, 13, 15, 16, 17, 18, 19, 21]
- Appeal allowed: DELHI CESTAT
2023-TIOL-719-CESTAT-BANG
Vidya Herbs Pvt Ltd Vs CC
Cus - The appellant is engaged in business of manufacturing and export of Herbal Ayurvedic Extracts and is a 100% EOU - They have been accorded status of Three Star Export house and are also holding "Authorized Economic Operator MSME Certificate" - As evident from application for Procurement of Goods under said Rule, importer obtained sanction for import of "Indonesia Robusta Coffee Beans" - As per the invoice, description of goods is shown as "Indonesia Robusta Coffee Beans" and as per description of consignment mentioned in certificate of quality issued by credited agency it shows "bags of Indonesian Robusta Coffee Beans - There are discrepancies in description of goods and when said discrepancy was brought to notice of importers, appellant admitted that cargo was not matching with cargo declared in documents and also admitted that the cargo was found to be coffee Husk/bits, which is classified under CTH 09019010 - Rule 5(1)(a) of Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017 cast duty on importer to ensure import of goods as approved and if any change in description/classification, importer should have sought necessary amendment by submitting details of such goods from the appropriate authority - Goods even if they are considered as Coffee husk/Bits as alleged, they are legally permitted subject to fulfillment of condition 2A under General Exemption No. 69, Notfn 52/2003-Cus. - The importer can approach the concerned authority and submit a fresh application under Rule 5(1)(a) of Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017, providing the information as was found by customs authorities on examination of goods and on submission of amended/revised permission, Customs authorities to release the goods by extending the benefit of Notfn 52/2003-Cus. - In case, appellant fails to produce revised/amended permission, Customs Authorities to draw samples in accordance with law and based on test report of Authorized Test Agency, the Adjudication Authority shall pass appropriate orders after giving reasonable opportunity to appellant: CESTAT
- Appeal disposed of: BANGALORE CESTAT
2023-TIOL-718-CESTAT-AHM
Saurashtra Fuels Pvt Ltd Vs CST
ST - The appellant's refund claim in respect of services used for export of goods was denied under Notfn 17/2009- ST on the ground that there are some discrepancy in service bills in as much as the bills do not tally with form A1 for export submitted by appellant, the appellant failed to produce registration certificate from export council as required under para 2 (1) (B) of Notfn 17/2009-ST - There is no dispute that appellant have exported goods and services in question were used for export of such goods - Reason for rejecting refund claim is all based on small technicalities, for technical lapse substantial benefit of refund of input services for export of goods cannot be denied - As regard the classification of input services under port service and test and inspection service, even though the service was involved of different types such as water front charges & weighbridge charge but the said services were provided by Mundra Port and invoices for this was issued under Port services falling under Section 165 (105) (zzi) of Finance Act - Similarly, invoices of M/s. Griffith India Private Limited and M/S. SGS India Private Limited are clearly in respect of Test and Inspection Service - Therefore, these services are clearly eligible for refund under said Notfn - The lower authorities have disputed classification of services, firstly, the services were correctly classified by service provider - Secondly, even if there is an error in classification of service at the service provider's end, same cannot be questioned or disputed at service recipient end - For this reason also merely on classification dispute, refund cannot be denied - Dispute raised regarding shortage explanation, appellant have submitted all documents and certificates such as shortage explanation, disclaimer certificate, tabular chart of invoices and export against same with shipping bill numbers along with refund application - Therefore, on this count also refund cannot be disputed - The lower authorities have raised the issue on unjust enrichment, on the basis of settled law in case of refund against export of goods, provisions of unjust enrichment is not applicable - Moreover, appellant have submitted chartered accountant certificate and have also shown the books of account wherein refund amount is reflected as receivable - On this fact also unjust enrichment is not applicable - Appellant is entitled for refund - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-717-CESTAT-KOL
Ganga Rasayanie Vs CCE
CX - The issue involved is, whether the process undertaken by appellant amounts to manufacture and whether they are eligible for SSI benefit - Appellant is engaged in undertaking the processing of Coal Tars, Solvent Naptha, Tar Acid, Light Creosote Oil, Napthalene and Althrecene Oil - They were having two units in West Bengal, a processing unit at Durgapur and a godown at Liluah - They are also registered as SSI Unit - Appellant primarily undertook the process of Coal Tar distillation, refining, blending and repacking of various petroleum products and the said process does not change the original character and properties of material - There is no evidence available on record to show that various components of liquid mixtures emerged at different stages in process undertaken by appellant - Just because different names have been given to sell the goods in market, it cannot be said that appellant has undertaken the process of 'fractional distillation' which amounts to 'manufacture' - In appellant's own case, Tribunal observed that the processes carried out by appellant like distillation and purification on solvent CIX do not give rise to new product hence the same do not mean manufacture - No valid reason found to ignore said decision in Appellant's own case in respect of their unit at Baroda, where appellant undertook similar processes of re-crystallization and distillation - Accordingly, following the said decision of Tribunal, it is held that the processes undertaken by appellant would not amount to manufacture within the meaning of Section 2(f) of Central Excise Act, 1944 and hence the finished goods are not leviable to Central Excise duty - Accordingly, demand made in impugned order is set aside - Regarding the eligibility of SSI Exemption, department contended that the benefit of SSI exemption has been allowed while working out aggregate value of clearances in each financial year during the material period - However, since the processes undertaken by Appellant does not amount to manufacture and demand itself is not sustainable, the eligibility of SSI Exemption would not make any difference: CESTAT
- Appeal allowed: KOLKATA CESTAT
|
|
