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2023-TIOL-963-HC-AP-GST
S A Iron And Metal Vs Asstt. Commissioner (ST)
GST - Petitioner filed appeal with a delay of 25 days after expiry of three months of statutory period of limitation for filing appeal before Commissioner - Reasons given inter alia is they were unable to pay the 10% of disputed tax as pre-deposit which is required to file the appeal since their bank account was frozen and the ITC was blocked - Commissioner (A) opined that the reasons are not convincing and, therefore, refused to condone the delay and rejected the appeal - Hence, the present petition.
Held: When the bank account of the petitioner is frozen by the authorities, it is a relevant fact to consider the delay since the pre-deposit of 10% disputed tax at the time of filing of the appeal is mandatory - The view taken by the Commissioner appears to be forcing the horse to run after tying the legs - The right of appeal which is created under statute is a substantive right of the party that cannot be denied by taking pedantic view - Bench is not convinced with the reasons assigned by the Commissioner in rejecting the appeal - Since, it is within the condonable period of limitation, the impugned order deserves to be set aside - Respondent No.2 is directed to restore the appeal and dispose of the matter according to law - Petition is allowed: High Court [para 17, 18]
- Petition allowed: ANDHRA PRADESH HIGH COURT
2023-TIOL-962-HC-KOL-GST
Himangshu Kumar Ray Vs State of West Bengal
GST - Applicant prays for leave to prefer appeal against the order of the Single Judge - Applicant submits that he was not a party to the writ application but says that the order that is sought to be impugned seriously affects him - There is also an intra court appeal by a third party directed against the order of the Single Judge, the petitioner being a practicing advocate and the third party to the writ proceedings - Counsel for Revenue has raised a vehement objection regarding the maintainability of the appeal at the instance of a third party and apart from that it is submitted that pursuant to the directions issued in the said writ petition, which were interim in nature, the authorities conducted investigation and several fake companies who have illegally committed GST fraud have been unearthed and criminal proceedings have been initiated; that therefore, it is submitted that this appeal is not maintainable .
Held: So far as the maintainability of the appeal is concerned, Bench is of the view that appeal is maintainable for the reason that soon after the impugned order was passed by the Single Bench, the Anti Fraud Department of the Kolkata Police as well as the GST Department had issued a series of notices to all advocates who are regularly appearing for their clients in cases pertaining to GST/WBVAT/WBST Acts and other related enactments - When this matter is brought to the notice of this Court, the authorities of the respondent were well advised that they had no jurisdiction to issue notices to the advocates calling for information regarding their clients as the information given by the clients is a privileged communication given to an advocate - At this juncture, it is relevant to take note of the decision of the Supreme Court in State of Punjab v. Sodhi Sukhdev Singh reported in AIR 1961 SC 493 wherein the Supreme Court held that Sections 126 and 129 of the Evidence Act protect the communications between a lawyer and a client made during the employment of the lawyer - It is a settled legal position that a communication is privileged if it is made to a legal advisor by a client after the commission of a crime and with a view to his defence, but it is not privileged if it is made before the commission of the crime or wrong and for the purpose of being guided or assisted in furthering or committing it - Thus, Section 126 of the Evidence Act is designed to abort the attempt to intrude privacy of the close preserve of the fund of information conveyed by the client closeted in confidence - The direction issued by the Single Bench is that the police authorities shall also try to investigate from the angle as to how many fake writ petitions have been filed in this Court in the past before the said writ petitions were heard and had defrauded the government causing huge revenue loss - Observation issued by the court has to be understood within the four corners of law -Unfortunately, the authorities of the Anti Fraud Department have misconstrued and misunderstood the scope of the direction which is clear from the notice issued under Section 160 Cr. P.C. to the Directors of various assessees - Bench does not appreciate the manner in which the department has carried out the observations made by the writ court - If, according to the department, large scale fraud has been committed by the various assessees, there are ways and means to investigate the same and the methodology adopted by the Anti Fraud Department by issuing standard format notices under Section 160 Cr. P.C. is wholly illegal - Therefore, Bench clarifies that the order passed by the Single Bench by directing the authorities, both the revenue authorities as well as the police authorities who are to investigate the cases of revenue fraud, to first conduct thorough study of the documents available with the GST Department and thereafter should channelise the investigation making it assessee centric and not by resorting to issuing standardised format of notices which appear to be in the nature of a public notice - Notices issued under Section 160 Cr. P.C. which are standardised forms are set aside and Bench gives liberty to the Police Department as well as the GST Department to conduct a proper investigation qua the assessees and not to generalise all assessees throughout the State of West Bengal to be fraudsters - this approach is not in accordance with law - It is needless to state that it is the GST authorities who have to first conduct a thorough study and investigation to ascertain as to whether there has been any illegal availment of GST ITC - If the authority comes to the conclusion that there is a criminal overt act attached to the said violation, then the matter should be handed over to the appropriate investigation authority who has to proceed in accordance with law - Petition disposed of: High Court [para 13, 15, 17 , 18]
- Petition disposed of: CALCUTTA HIGH COURT
2023-TIOL-961-HC-KOL-GST
Earthmark Traders Vs Joint Commissioner of State Tax
GST - Intra-Court appeal is directed against the order dated 04.05.2023 passed by the Single Bench thereby declining to grant interim order in the writ petition - Claim for refund is denied on the ground that additional place of business was never in the possession of the appellant.
Held: As Show cause notice has been issued pursuant to the inspection, it goes without saying that the appellant's response to the findings as emerged during the inspection, should have been taken note of and, only thereafter, the show cause notice could have been issued - Therefore, this is a fundamental error which has occurred - Appellate Authority has proceeded on a different footing by restricting the consideration of the grounds of appeal with reference to the correctness of the order passed by the original authority - Appellate Authority has recorded a finding that he has reason to believe that the evidence does not prove the claim of the appellant that the goods were exported and, therefore, the refund claim is not sustainable - It is rather doubtful as to whether the appellate authority could have rendered such findings since the appellant has already received input tax credit for valid export - In any event, the appellate authority could not have travelled beyond the allegation of the show cause notice as pointed out earlier, the show cause notice itself is defective on account of non-consideration of the submission of the appellant to the memo dated 27.01.2022 and non-consideration of the documents which were produced by the appellant along with its response to the said show cause notice - Bench is of the view that matter has to be heard out afresh after giving an adequate opportunity of hearing to the appellant - Both the appeal and the writ petition stand allowed and the order passed by the Original Authority and the Appellate Authority are set aside - The matter shall stand remitted to the Original Authority: High Court [para 2, 3]
- Petition allowed: CALCUTTA HIGH COURT
2023-TIOL-960-HC-MUM-GST
C P Pandey And Company Vs Commissioner of State Tax
GST - Cancellation of registration - Petitioner seeks quashing and setting aside of the impugned orders of suspension of GST registration and is subsequent cancellation order - Petitioner's submission is that the cancellation of the petitioner's registration is not on the ground as contained in the show cause notice; that although an appeal has been filed on 28 May 2022, however, till date the said proceedings have, in no manner moved forward, although more than one year has lapsed; that there is a serious prejudice which is being caused to the petitioner due to the illegal cancellation of the registration; that considering the settled principles of law that an order cannot be passed on a ground which is not a ground in the show cause notice, as no opportunity was available to the petitioner to meet such grounds, which emerged for the first time in the orders passed, at the final adjudication of the show cause notice, the impugned order needs to be quashed and set aside.
Held: Bench is of the opinion that there is substance in the contention inasmuch as there appears to be no dispute that the impugned order cancelling the registration of the petitioner appears to be on the ground completely outside the scope of show cause notice issued to the petitioner - This would certainly cause prejudice to the petitioner as the petitioner was never granted an opportunity of being confronted with such grounds in the show cause notice, so as to have an opportunity to meet such case of the department - In the absence of such opportunity, certainly the principles of natural justice would become applicable and any order of such nature as passed, would be required to be held to be in breach of the principles of natural justice - The impugned order dated 12 July 2021 is required to be quashed and set aside, with liberty to the respondent to issue a fresh show cause notice to the petitioner as permissible in law and after according an opportunity of a hearing to the petitioner, pass an appropriate order in accordance with law - Registration of the petitioner would be required to be restored and the same be done within one week - Petition allowed: High Court [para 6, 8, 10, 11]
- Petition allowed: BOMBAY HIGH COURT
2023-TIOL-959-HC-KOL-GST
Bitumix India LLP Vs Deputy Commissioner of Revenue State Tax
GST - Intra court appeal is filed against order of Single Judge since Single Judge declined to pass any interim order as sought for - Allegation which led to an order of penalty being passed by the respondent authority is that the goods which were being transported by the appellants to Assam were covered by e-Way Bill which was valid upto 18th March, 2022 - According to the appellants, on account of breakdown of vehicle the goods did not move outside the territory of the State of West Bengal and was stationed at Dankuni on 18.03.2022 - The consignee, in the meantime, had sold the goods which were in transit to another purchaser in Assam and the goods were transported by the same vehicle after generating a new e-Way Bill on 22.03.2022 - The vehicle was detained on 25.03.2022 and order of penalty has been passed on the ground that the first e-Way Bill [valid up to 18.03.2022] had not been renewed/extended by the appellants - A charge u/s 129 has been led against the appellants and which has ultimately resulted in imposition of 200% penalty.
Held: It is not in dispute that, on the date and time the goods were intercepted that is on 25.03.2022, the appellants had a valid e-Way Bill - The only mistake committed by the appellants is in not renewing the e-Way Bill which expired on 18.03.2022 - There is a violation committed by the appellants but the violation is not as grave enough to call for imposition of penalty at the rate of 200% - Appeal as well as the writ petition are allowed and the order of penalty passed by the adjudicating authority as affirmed by the appellate authority are set aside and modified with the direction to the appellants to pay a penalty of Rs.50,000/- which will include both CGST and WBGST instead of 200% penalty as imposed by the authorities: High Court [para 7, 8]
- Appeal allowed: CALCUTTA HIGH COURT
2023-TIOL-11-NAA-GST
Director General of Anti-Profiteering CBIC Vs Bhagwati Infra
GST - NAA vide its Order No. 68/2022 dated 02.09.2022 had determined the profiteered amount as Rs. 1,56,77,149/- as the benefit of ITC was not passed on to the recipients by the Respondent during the period from 01.07.2017 to 31.09.2019 and ordered the Respondent to pass on the benefit - Further, vide Para 27 of the aforesaid Order, the NAA directed the DGAP in terms of Rule 133 (5) of the CGST Rules. 2017 , to investigate profiteering in relation to projects other than the project " Bhagwati Eminence ", being executed by the Respondent, if any, under the provisions of Section 171 of the CGST Act, 2017 - DGAP has, in its report dated 23.02.2023, submitted that no other project has been executed by the Respondent except the project " Bhagwati Eminence "; that profiteering in respect of which has already been determined by the NAA vide Order dated 02.09.2022 and, hence, Respondent was not liable to pass on the benefit of any Input Tax Credit - The above fact has also been corroborated from the website of the Maharashtra RERA as well as the reply of the Additional Commissioner, CGST, Belapur Commissionerate as per the report of the DGAP - Commission finds that the provisions of Section 171 (1) of the CGST Act, 2017 are not attracted in the case of other projects of the Respondent and, therefore, the present proceedings are hereby dropped: Competition Commission of India
- roceedings dropped: NAA
2023-TIOL-743-CESTAT-DEL
Rajendra Mittal Construction Company Pvt Ltd Vs CCGST
ST - The amount in question alongwith interest was deposited by appellant on 09.08.2015, at the stage of investigation itself towards partial discharge of liability pointed out by audit team - Apex Court in Mafatlal Industries 2002-TIOL-54-SC-CX-CB has held that the amount paid pending investigation is nothing but amount paid under protest - Said decision has been followed by Tribunal in case of Dugger Fibers Pvt Ltd. wherein it was held that amount paid during investigations ipso facto, is deemed to be paid under protest - There have been several decisions holding that such an amount cannot be called as an amount of duty, it is merely a revenue deposit, as has also been held by Tribunal in Parle Agro Pvt. Ltd. 2021-TIOL-306-CESTAT-ALL - G round of rejecting this amount is that the same cannot be an amount covered under section 35F of Central Excise Act - Hence, section 11B of the Act shall be applicable for refund of this amount - This section provides a period of limitation and refund claim is beyond said period of limitation - If seen through prism of section 11B of Central Excise Act the period of one year has to reckon from relevant date - Explanation B in Clause (5) of Section 11B of the Act defines Relevant Date - Sub- clause (ec) thereof clarifies that where the duty becomes refundable as a consequence of judgement decree order or direction of appellate authority Appellate Tribunal or any Court, date of such judgement decree, order or direction shall be relevant date - Refund claim was filed pursuant to order passed by Commissioner (A) - The claim was filed on 25.01.2021 i.e. within less than a week of aforesaid order - It is not the case of Department that said order was ever appealed against by Department - Refund is otherwise well within the reasonable period - Accordingly, refund of Rs. 12,00,290/- with interest of Rs.35,342 has wrongly been rejected - Department is held liable to refund the said amount also alongwith the interest - Relying upon decision of Tribunal in case of Parle Agro Pvt. Ltd. 2021-TIOL-306-CESTAT-ALL and Dugger Fibers Pvt Ltd. Department is directed to grant interest on the said amount at the rate of 12% from the date of deposit till the date of payment - Impugned Order is hereby set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-742-CESTAT-HYD
Pr.CC & CT Vs Sachdev Overseas Fitness Pvt Ltd
Cus - Whether the refund claim filed by Respondents for refund of Customs Duty paid in excess is hit by bar of unjust enrichment and the refund amount is liable to be granted to respondents instead of crediting the same to Consumer Welfare Fund as held by Commissioner (A), is legal and proper - The Department has mainly relied upon statutory provisions whereby certain presumptions are made with regard to passing of incidence of duty unless there is evidence to the contrary - Admittedly, on reassessment the rate of duty was reduced and as consequence respondents filed refund claims - The Respondents, at that point of time, were aware of quantum of refund even though they had to go through the procedural requirement of filing refund claim - In fact they have clearly specified the amount of refund which they were eligible as consequence to reassessment also - At this point also they have not shown this amount as receivable in any of their books of account nor any such evidence was produced before competent authority sanctioning refund to the effect that they had not passed on total amount of applicable Customs Duty to their customers except for CA's Certificate - Therefore, in absence of any other evidence, merely producing CA certificate would not suffice to shift the burden of presumption for purpose of Section 27 read with Section 28C of Customs Act - They have clearly not been able to clear the bar of unjust enrichment by not having produced sufficient evidence before the original authority - Thus, in the absence of any verifiable and positive evidence from the Respondents, the Original Authority has rightly granted the refund on merits but ordered for crediting it to Consumer Welfare Fund and therefore, there is no infirmity in the Order of Original Authority which was, however, set aside by Commissioner (A) therefore, Order of Commissioner (A) is not correct and is set aside and the Order of Original Authority is restored: CESTAT
- Appeals allowed: HYDERABAD CESTAT
2023-TIOL-741-CESTAT-AHM
CCE & ST Vs Devram Valji And Company Pvt Ltd
CX - The issue involved is, whether branded chewing tobacco of 8 gms and 9 gms packing falling under Chapter sub-heading 2403.9910, cleared in a pack of one bag containing 40 packets of said goods and each pack containing 50 pouches of 8 gms and 9 gms each, are liable to be valued under Section 4 or Section 4A of Central Excise Act, 1944 - Issue is no longer res-integra as in various judgments this issue is decided that individual piece, if having less than 10 gms even though the number of individual pieces are packed in secondary packet and cleared the individual piece bearing MRP which is having less than 10 gms, shall be considered as retail pack and since it is less than 10 gms, same should not be valued under Section 4A - Accordingly, individual piece of pouch is of 8 gms/ 9 gms even though 50 pieces of pouches are packed in one packet, same should be valued under Section 4 and not 4A for the reason that each pouch is considered as retail pack and not a packet of 50 pouches - Therefore, value should not be governed under Section 4A whereas the same should be governed under Section 4 - Accordingly, impugned order passed by Commissioner (A) bears no infirmity and same is upheld: CESTAT
- Revenue's appeal dismissed: AHMEDABAD CESTAT |
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