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2023-TIOL-1034-HC-MAD-GST
Luminous Power Technologies Pvt Ltd Vs State Tax Officer
GST - Petitioner has challenged the notice dated 30.12.2022 issued u/s 129(3) seeking to impose penalty - Case of the petitioner is that they had transported the consignment of solar power generating systems/solar panels of different descriptions to the buyer in Tiruppur under four different invoices - That for the above invoices, corresponding e-way bills were also generated - It is submitted that when the goods were being transported from Chennai to Tiruppur , due to heavy down pour, the solar panels got wet and, therefore, the buyer namely Attrib System, Tiruppur , refused to take delivery of the goods - Consequently, petitioner generated fresh e-way bills, all dated 28.12.2022, valid up to 31.12.2022 and re-transported to its factory, which was intercepted by the second respondent on its way back, namely, the Deputy State Tax Officer, Roving Squad-IV, Salem Intelligence, Salem; that the detention was incorrect, as the consignee namely Attrib System, refused to take delivery and, therefore, issuance of Credit Notes under Section 34 of the respective GST enactments does not arise; that invocation of Section 129(3) of the respective GST enactments was unwarranted; that since the goods were at the risk of further getting deteriorated, the petitioner paid the penalty to salvage the wet and damaged goods back to the factory - Counsel for Revenue submitted that payment having been made, the question of passing an order under Section 129(3) of the respective GST enactments did not arise in the light of the Section 129(5); that the question of passing a final order under Section 129(3) in Form MOV - 09 did not arise as the petitioner paid the penalty and moved the goods.
Held: In view of s.34(1), 34(2) of the Act, goods which are being returned need not necessarily accompany a Credit Note - The Credit Note or Debit Note, as the case may be, are intended only for adjustment of tax liabilities on account of return of the goods and where tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply - Goods that were detained on 28.12.2022, covered by the four invoices - Therefore, the detention of the goods was per se illegal and unwarranted particularly in the light of the fact that the goods accompanied the e-way bills, which were generated for return of the goods - The system that is available in the GST portal for making payment in the GST DRC-03 [rule 142(3)] is only by treating all the payments as voluntarily payment and if such payments are made, the proceedings are deemed to have concluded with issuance of GST DRC-05 - There is no other option available to an assessee/dealer to take the goods back by paying the amount under protest - Therefore, the system and procedure cannot be used against the petitioner particularly in the light of the fact that the detention itself was illegal - Credit note under Section 34 is not required to be issued at the stage, when the goods were being returned without even they having been received by the recipient - Writ Petition stands allowed and the impugned notice dated 30.12.2012 of the first respondent is set aside: High Court [para 23, 24, 25, 30, 31, 35]
- Petition allowed: MADRAS HIGH COURT
2023-TIOL-1033-HC-MAD-GST
Tvl Rajendra Steel Industries Vs State Tax Officer (ST)
GST - Case of the petitioner is that they have produced documents and appeared for personal hearing on 01.06.2023 - However, on the same date i.e., on 01.06.2023, the impugned order has been passed observing thereunder that the taxable person has not appeared for the personal hearing; no reply has been filed and, therefore, the ITC liability is determined along with interest and penalty.
Held: A reading of the impugned order makes it clear that the order is non-speaking order in nature - Considering the above, the impugned order is set aside and the case is remitted back to the respondent to pass a speaking order on merits and in accordance with law within a period of six weeks - Petition is disposed of: High Court [para 6, 7, 10]
- Petition disposed of: MADRAS HIGH COURT
2023-TIOL-1032-HC-MAD-GST
Sav Constructions Vs CCGST & CE
GST - Petitioner availed the benefits of "Service Tax Voluntary Compliance Encouragement Scheme" granted under Finance Act, 2013, which is an amnesty scheme for waiver of Interest and Penalty and said scheme imposes certain conditions - It is an admitted fact that petitioner has paid 50% of Tax liability within the due date of 31.12.2013 - They are liable to pay balance amount on or before 30.06.2014 - However, petitioner had paid a sum of Rs.15 lakhs on 26.06.2014 - The petitioner has to pay balance of Rs.13,89,270/- on or before 30.06.2014 in order to avoid interest - Even the petitioner was not able to pay along with interest on or before 31.12.2014 - But petitioner had paid the balance amount on 21.02.2015 and was instructed to pay interest for belated amount - However, Office of Accountant General (Audit) directed the revenue to recover interest for entire tax liability of Rs.57,89,270/- - In tax laws, even if two interpretations are possible then the one which is favourable to petitioner has to be preferred - Therefore, on this ground also the petitioner is entitled to relief - Generally, revenue levy interest for unpaid portion of tax liability - Even as per tax laws, when portion of tax liability is paid, revenue cannot levy interest for entire tax liability - Even in normal commercial parlance any person is entitled to interest for unpaid portion only - Petitioner has paid 90% of tax liability, but failed to pay balance amount, then petitioner is liable to pay interest for balance amount alone - Therefore, interest cannot be levied for entire amount of Rs.57,89,270/- - Impugned order is hereby quashed - Consequently, revenue shall recalculate the interest portion for the amount of Rs.13,89,270/- and recover the same - Once the petitioner has paid interest for the balance amount of Rs. 13,89,270/-, revenue shall release the attachment of bank account: HC
- Writ Petition allowed: MADRAS HIGH COURT
2023-TIOL-1031-HC-AHM-GST
Dipakkumar Jayantibhai Patel Vs State of Gujarat
GST - The goods of petitioner conveyed and in transit in vehicle were intercepted in exercise of powers under Section 129 of CGST Act, 2017 - At the same time, authorities adverted to Section 130 of the Act to exercise powers thereunder to issue MOV-10 confiscating the goods - Authorities sought to derive their powers for taking possession of goods of petitioner which were in transit under Section 129 of the Act - It was submitted that said Section begins with non obstante clause and it is a provision independent of Section 130 - It was submitted that exercise of powers under Section 129 and thereafter switching over to Section 130 and passing order thereunder without availing the petitioner the benefits of release of goods under Section 129, could be said to be without jurisdiction - Petitioner further submitted that application and other matters have been entertained by this court involving the same point and interim relief of release of goods and conveyance has also been granted on condition - It is directed that goods of petitioner as well as vehicle shall be released, provided the petitioner comply with conditions - Upon compliance of conditions by petitioner, goods and conveyance of petitioner be released by authorities: HC
- Matter listed: GUJARAT HIGH COURT
2023-TIOL-784-CESTAT-BANG
Kottaram Trading Company Vs CC
Cus - Valuation of imported Opal glassware - In the first round of litigation, Tribunal remanded the matter with an observation that the explanations given by the Managing partner in his statements are not at all considered by the Adjudication Authority; that in spite of giving details of contemporaneous import, no finding is given and the Adjudication Authority has summarily dismissed the evidence of contemporaneous import on the ground that the document purportedly showing the value of contemporaneous import is unauthenticated & unsigned - On remand for de-novo adjudication, the Adjudicating Authority vide impugned Order-In-Original dated 31.03.2010 confirmed demand of duty, interest and penalty, therefore, the present appeal - It is contended that law is well settled that the burden of proving the charge of undervaluation is on the revenue by bringing on record, cogent evidence of contemporary import, repatriation of extra money, existence of parallel invoices, admission of import etc.
Held: While remanding the matter, this Tribunal has not directed the Adjudicating Authority to consider any specific ground but directed to reconsider the issue afresh - In such situation there is no infirmity in reopening the entire issue - However, the Adjudicating Authority ought to have considered the findings given by this Tribunal regarding the sustainability of the finding regarding statement recorded from the Managing partner - Moreover, in spite of furnishing details like port of import, Bill of Entry number, date, country of origin, imported items etc. for the relevant period and even after specific directions to consider the evidence produced by the appellant regarding contemporaneous import by this Tribunal, no efforts were made by the Adjudicating Authority to call for the records available in the data bank regarding said imports to verify the facts after sharing such information with appellant before de-novo adjudication - Regarding assessable value of contemporaneous import, the value declared by the appellant during relevant time is higher than the value of contemporaneous imports - When there is no evidence with respect to the under-valuation, either by way of admission or by way of evidence regarding repatriation of extra payment or evidence of contemporaneous imports, the revenue cannot bring home the charge of under-valuation - Regarding trade discounts claimed by the appellant, this Tribunal in Ozurt Systems Pvt. Ltd ( 2016-TIOL-158-CESTAT-BANG ) considered the claimed discount at the range of 87% to 97% from the supplier's price list and held that, it is not unusual for foreign supplier to give a higher discount when imports are in much larger quantity and in such cases, it cannot be said that there has been undervaluation in the invoice - There has not been sufficient evidence with the Department to reject the transaction value - Hence appeals are allowed by setting aside the impugned order: CESTAT [para 9]
- Appeals allowed: BANGALORE CESTAT
2023-TIOL-783-CESTAT-KOL
CC Vs Ferro Alloys Corporation Ltd
Cus - Assessee has gone through the process of Corporate Insolvency Resolution Process (CIRP) and all the claims prior to 30.01.2020 are already extinguished as per Resolution Plan approved by NCLT - It is submitted that even at the time of their appeal before Commissioner (A), they submitted the details of CIRP proceedings before the NCLT - Against NCLT's order, Department had filed an appeal before NCLAT - Vide order dated 25.08.2022, the NCLAT has dismissed the appeal filed by Revenue - Revenue filed the appeal before Supreme Court which has dismissed the Department's appeal - Therefore, he submits that as on date the issue has reached finality - Therefore, present appeal filed by Revenue does not survive: CESTAT
- Appeal dismissed: KOLKATA CESTAT |
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