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2023-TIOL-989-HC-P&H-GST
Bright Road Logistics Vs State Of Haryana
GST - Petitioner impugns the order passed by the first appellate authority u/s 130 of the Act, 2017 - Appellate authority observed that it is a case of reuse of documents with malafide intention to evade tax ; that the petitioner is a habitual tax offender.
Held: In view of the enabling provisions of Sections 20 and Section 4 of the IGST Act; as well as the order dated 07.12.2017 passed by the Excise & Taxation Commissioner, Haryana, assigning the functions to the Proper Officer under the Haryana Goods & Services Tax Act, 2017 , Bench is of the considered opinion that the Asstt. Excise and Taxation Officer of State Tax is competent and authorized to exercise the powers under Section 129 and 130 of the IGST Act, 2017 ; decision of the appellate authority in this regard requires no interference - Sub-section 6 of section 129 of CGST Act, 2017 provides that where a person transporting any goods or owner of the goods fails to pay amount of tax and penalty as provided in sub-section 1 of section 129 within a period of 14 days of the detention and seizure of the vehicle, the proceedings under section 130 of CGST Act, 2017 shall be initiated - In the present case, the payment was not made, as such the Proper Officer was authorized to initiate the proceedings under section 130 of the Act for confiscation of the goods or conveyance and for levy of penalty - Hence, the order passed by the Proper Officer under Section 129 as well as under Section 130 of the CGST Act, 2017 read with the provisions of IGST Act, 2017 is legal and valid and has been rightly upheld by the appellate authority - Appellate authority has properly dealt with all the submissions made by the appellant and has passed a well reasoned order - There is no scope for interference and to invoke the extra-ordinary writ jurisdiction - Writ petition is devoid of any merit and is, accordingly, dismissed: High Court [para 21, 34, 36]
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-988-HC-P&H-GST
Parsvnath Traders And M/s Mahavira Dyes And Chemicals Vs Pr.CCGST
GST - Petitioner was verbally informed during investigation that there were allegations that the petitioner had got issued bogus invoices from M/s Royal without receiving goods and had availed ITC in an illegal manner - The petitioner was forced to deposit a sum of Rs. 20 lacs on the same day by the officials of CGST Department and was called upon to appear in their office on 08.02.2021 - They also got deposited an additional amount of Rs. 30,70,216/- from the petitioner on 16.02.2021 - Petitioner made request in writing to the respondents to refund the amount of Rs. 50,70,216/- got deposited from it but the prayer made by the petitioner was rejected by order dated 18.05.2021 which was communicated through e-mail - Petitioner challenged the action of the respondents on the ground that the amount of Rs. 50,70,216/- was got deposited from it without issuance of any show cause notice, passing any adjudication order and also without following the procedure prescribed by law; that the provisions of Section 74(5) of the Act, 2017 which were mandatory in nature had not been complied and principles of natural justice were violated -
Grievance of the petitioner is that the respondents, without issuing any show cause notice, as required under Section 74(1) of the Act, straightaway recovered an amount of Rs. 50.70 lacs from it thereby, without following the adopted procedure and this action amounted to recovery without authority of law - Whereas, according to the respondents, the deposit had been made voluntarily vide GST DRC-03 on two different dates during the course of investigation which amounted to 'self- ascertainment' in terms of Section 74 and it was hence urged that the petitioner could not make any prayer for issuing a mandamus seeking refund of that amount.
Held: It is well established that no collection of tax from an assessee can be insisted upon prior to final determination of liability being made - Petitioner shortly after depositing the amount of Rs. 50.70 lacs had approached the revenue for refund of the same, therefore, the ascertainment contemplated under Section 74(5) of the Act which amounts to an unconditional determination and in the nature of ‘self assessment' by the assessee is not attracted, and hence, the said deposit could not be stated to be voluntary deposit, by any stretch of imagination, irrespective of the fact that deposits were made in the form of GST DRC-03 - In view of the discussion, Bench is of the opinion that the petitioner deserves the relief as claimed by it and accordingly, mandamus as sought by the petitioner, is granted and it is ordered that the sum of Rs. 50.70 lacs, which was collected from the petitioner - M/s Parsvnath Traders during the course of search, shall be refunded to it within a period of 6 weeks along with interest @ 6% per annum from the date of deposit till the refund amount is released in its favour - Similar directions are also issued with regard to the petitioner - M/s Mahavira Dyes & Chemicals who had deposited an amount of Rs. 45.65 lacs and it is ordered that the respondents shall refund this amount along with interest 6 % per annum from the date of deposit till its realisation - Petitions stand allowed: High Court [para 12, 16, 17]
- Petitions allowed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-987-HC-MUM-GST
Jacobs Solutions India Pvt Ltd Vs UoI
GST - Petitioner exported consulting services to its group entities outside India without payment of GST - Refund of ITC on inputs and input services utilised for export of said services - If the department was of the opinion that the order passed by the Additional Commissioner needs to be challenged, the same was required to be assailed in the appropriate proceedings - Thus, from the position as taken by respondent Nos. 1, 3 and 4, certainly it was not open to the Assistant Commissioner to pass the impugned order which amounted to sitting in appeal over the order passed by the Additional Commissioner of Appeals - On this ground, the impugned order is required to be held to be passed in patent lack of jurisdiction, as also on the face of it, illegal - The Assistant Commissioner could not have passed the impugned order, of the nature he has passed as he was certainly bound by the orders passed by the Additional Commissioner (Appeals), and in the absence of any stay to the orders passed by the Additional Commissioner (Appeals), grant benefit of the orders of the Additional Commissioner (Appeals) dated 11 October 2022 to the petitioner - Petition allowed - Respondents are directed to to sanction to the petitioner the refund amount of Rs. 11,69,07,326/- with appropriate interest in terms of Section 56 of the CGST Act, 2017 - Refund to be granted within a period of two weeks: High Court [para 10, 13]
- Petition allowed: BOMBAY HIGH COURT
2023-TIOL-986-HC-KERALA-GST
Ajit Associates Architectural Consultants Pvt Ltd Vs Assistant Commissioner
GST - Cancellation of registration - Petitioner submits that show cause notice was issued way back on 05.12.2019 by the then assessing authority Smt.P.R.Seema, and order has been issued by the succeeding incumbent Smt.T.A.Omana; that the succeeding officer, who is the proper officer, has not issued notice to the petitioner or heard them; that what is required is the satisfaction of the officer concerned in order to exercise the discretion to cancel or to not cancel the registration, and hence the person who is passing the order necessarily has to hear the petitioner to arrive at a satisfaction; that Ext.P2 does not contain the Document Identification Number (DIN). It is submitted that going by the Circular issued by the 4th respondent, with effect from 24.12.2019, every order shall contain a DIN, and Ext.P2 was hence invalid; that the petitioner has submitted the defaulted returns, and the cancellation of registration is not required.
Held: Under Section 29(2) of the GST Act, the proviso mentions that the proper Officer shall not cancel the registration without giving an opportunity of being heard, which is in the nature of an embargo on the officer - The requirement that the succeeding Officer should put the assessee on notice is thus better emphasised by the usage of the words "proper Officer" in the proviso to Section 29(2) - The necessary implication is that the proper officer has to hear the concerned person before cancelling the registration, which would mean that the assessee is put on notice by the succeeding officer also - Writ petition is allowed - Ext.P2 order is quashed - As the petitioner has already submitted returns for the periods of default, necessary orders shall be issued by the respondents, treating the petitioners' registration as not cancelled: High Court [para 10]
- Petition allowed: KERALA HIGH COURT
2023-TIOL-761-CESTAT-DEL
Onkar Chand Vs CC
Cus - The appellant is in appeal against impugned order wherein penalty of Rs. 5 lakh has been imposed under Section 112, 114, 114A, 114AA of Customs Act, 1962 r/w Section 13 of Foreign Exchange Management Act, 1999 - It is coming on that the two ladies who were visiting India from Krgyzthan have stated that they have brought gold India through illicit means and the same was sold to one Shri Ravinder Suri, who in turn sold the gold to appellant but neither the appellant has admitted that he has purchased the gold from Sh. Ravinder Suri nor any other corroborative evidence is available on record to prove that appellant has purchased the smuggled gold as alleged - No penalty is imposable on appellant, same is set aside - Therefore, impugned order qua imposing penalty on appellant is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-760-CESTAT-AHM
Panoli Enviro Technology Ltd Vs CCE & ST
ST - The issue involved is, whether transportation of effluent generated during effluent treatment of appellant is liable to service tax under Goods Transport Agency Service (GTA) under Section 65(105)(zzp) read with Section 68 of Finance Act, 1994 read with Notfn 36/2004-ST r/w Rule 3(d)(v) of Service Tax Rules, 1994 - The goods which were transported for appellant is effluent and same is transported for throwing the same and same is not sold or saleable in market - As per combined reading of both the definitions of "goods" as provided under Section 65(50) and GTA, it is clear that only for such transportation which is for transport of goods defined under Section 65(50), will be covered under the service of Goods Transport Agency - The transport of goods is in respect of effluent which is neither sold nor saleable in market therefore, same is not qualify as goods defined under Section 65(50) - Accordingly, transportation of effluent will not fall under Goods Transport Agency service - It is settled that goods for purpose of Goods Transport Agency service should be qualified as 'goods' in terms of definition given under Section 65(50) of Finance Act, 1994 - Therefore, goods being effluent which is neither sold nor saleable, does not qualify in terms "goods" - Therefore, transportation of same does not fall under four corners of Goods Transport Agency service, hence the same is not liable to service tax - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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