2023-TIOL-1039-HC-AHM-GST
Kansarabazar.In Vs State of Gujarat
GST - It is the contention of petitioner that when goods were in transit, authorities intercepted the goods and confiscated them - In other words, 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 - In that context, 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 - By way of interim relief, it is directed that goods of petitioner as well as vehicle shall be released, provided the petitioner comply with conditions: HC
- Matter listed: GUJARAT HIGH COURT
2023-TIOL-1038-HC-MP-CX
Narayan Prasad Gour Vs CCGST, Excise & ST
CX - There is a huge delay of approximately ten years in filing the appeal - The reasons which have been assigned do not make a sufficient cause for condoning the delay - The only reason which has been given for delay in filing the appeal is that the counsel did not inform regarding order passed by authority - That cannot be considered to be a genuine reason for condoning the delay - Further, impugned order reflects that a copy of order was delivered to appellant on 05.04.2010 and the documents/acknowledgment were produced before Tribunal on 01.07.2021 - On 25.08.2021, an affidavit has been filed by appellant to the effect that somebody from staff might have signed on his behalf, but he does not give any information to him - The impugned order reflects that the department has produced relevant extract of dispatch register to show acknowledgement card pointing out the delivery of impugned order to the appellant within time - The same cannot be negated in terms of affidavit which has been submitted by appellant himself before appellate authority - Thus, no illegality is committed by appellate authority in not condoning the huge delay of approximately ten years - No ground found to condone the huge delay in filing appeal - The impugned order has rightly been passed, which does not call for any interference: HC
- Appeal dismissed: MADHYA PRADESH HIGH COURT
2023-TIOL-1037-HC-KERALA-GST
T Muhammad Saleem Shemsudeen Vs Enforcement Officer
GST - The appellant had sold 12860 Kg iron scrap to a GST registered dealer in Goa and said goods were transported under cover of an E-way bill in a conveyance - First respondent issued confiscation order confiscating the conveyance and goods - Impugned judgment of Single Judge calls for no interference since it is well settled that provisions under Sections 129 and 130 are independent provisions and there is no requirement in law that the proceedings under Section 130 should be preceded by proceedings under Section 129 - At any rate, order passed by first respondent permits the appellant to seek a release of goods and the conveyance on payment of penalties and fine within a period of fourteen days - This provision should suffice for appellant to obtain an immediate release of goods and conveyance, pending final disposal of appeal that he may prefer against order before appellate authority: HC
- Writ appeal dismissed: KERALA HIGH COURT
2023-TIOL-1036-HC-KERALA-CUS
Rishabh Exports Vs CC
Cus - Appellant was obliged to pay mandatory pre-deposit of 10% of duty confirmed against it for purposes of maintaining the appeal before Tribunal - Said amount was not paid by appellant - Tribunal passed final order dismissing the appeal itself for non-compliance with mandatory pre-deposit required under Section 129 E of Customs Act, 1962 - Said order of Tribunal was impugned by appellant in petition from which this appeal arises - The Single Judge, after noticing the aforesaid facts, found that appellant had an effective alternative remedy against final order passed by Tribunal and hence the Petition was not maintainable - The Petition was, therefore, dismissed as such - While the appellant impugns the judgment of Single Judge, when matter came up for admission, an earlier Division Bench took note of submissions of appellant that in case of one bill of entry the appellant had a strong case on merits on the basis of decision of Supreme Court in G.M. Exports and Others 2015-TIOL-209-SC-CUS - The earlier Division Bench, therefore, directed the appellant to pay the court fee of Rs.200/- for maintaining the appeal as a Customs Appeal and stayed the operation of order of Commissioner (A) that was impugned before Tribunal - The appeal has necessarily to be dismissed since it is not in dispute that appellant did not comply with directions of this Court and the terms of undertaking furnished to pay 10% of duty amount as a condition for maintaining the appeal before Appellate Tribunal - That being the case, appellant cannot be heard to complain when Tribunal dismissed its appeal for non-compliance with statutory requirement of pre-deposit as well as direction issued by this Court - Even if this appeal is to be treated as an appeal against order of Tribunal that was impugned in petition, appeal to be dismissed: HC
- Writ appeal dismissed: KERALA HIGH COURT
2023-TIOL-1035-HC-KERALA-VAT
Oceanus Dwellings Pvt Ltd Vs State of Kerala
Whether it is fit case for remand where certain factual aspects pertaining to availment of Input Tax Credit by the Assessee, has to be verified before allowing payment of tax on compounded basis - YES: HC
- Revision Petition answered in favor of Assessee: KERALA HIGH COURT
2023-TIOL-791-CESTAT-AHM
Welspun Projects Ltd Vs CCE & ST
ST - Issue to be decided is that the service in question is classifiable under category of 'Site Formation and clearance, Excavation and Earth Moving and Demolition service' as contended by revenue or under the category of 'Industrial and Commercial Construction service' as contended by appellant - Appellant have carried out the service in terms of bidding documents - As per said documents, entire contract was for lum sum price for carrying out not only site grading but also construction of Roads, Boundary wall, Drains lines and associated works for crude oil terminal of Bina Refinery Project - Without site cleaning, road, boundary wall and drainage line cannot be constructed - The majority of work relates to civil work in nature for construction of road, boundary wall and drainage lines - The essential character of this composite work is reflected as that of construction service - Thus, this service is appropriately classifiable under 'Commercial or Industrial Construction Services' - The service tax demand from appellant by treating their activity as taxable under section 65(97a) as "site formation and clearance, excavation and earth moving and demolition service" is not sustainable - Demand is also not sustainable on limitation - Mere omission or merely classifying its services under an incorrect head does not amount to fraud or collusion or wilful misstatement or suppression of facts - The intention has to be proved to invoke extended period of limitation - Appellant had been classifying its services under Commercial or Industrial construction service, paid the service tax and filed returns - Once the returns are filed, if Revenue was of the opinion that in self-assessment of service tax the classification was not correct, it could have scrutinized the returns and issued notices within time - The SCN was issued on 19.10.2012 for the period 2007-08, which is clearly beyond the normal period of limitation - Therefore, demand is time barred and cannot sustain - Hence, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-790-CESTAT-DEL
Gopal Sharma Vs CC
Cus - The narrow scope of appeal is as to whether the appellant is entitled to get delay of 18 days condoned - Commissioner (A) could have condoned the delay for a period of 30 days over and above the 60 days - The appeal before him was filed during said extended period of 30 days - No doubt that the order under challenge has reasons for not considering the request for condonation of delay - But as on date, it is observed that contentions of appellant about reason for delay of 18 days have duly been supported by his affidavit - It has been deposed that he was away to a village where he had fallen sick and thus was unable to come to Delhi to sign the papers required for filing appeal - He deposed that the moment he got recovered he immediately contacted his lawyer to file the present appeal, however delay of 18 days occurred - The possibility of getting no proper medical aid in a village cannot be ruled out - Hence the absence of document stands reasonably explained -
Commissioner (A) has not considered the said explanation as sufficient /reasonable for want of any document to support - The appellant has now produced an affidavit - Plea of condonation has always to be looked into liberally, more so, for the reason that the lis has to be adjudicated on merits -
Matter remanded to commissioner (A) to adjudicate the appeal on merits: CESTAT
- Matter remanded: DELHI CESTAT
2023-TIOL-789-CESTAT-KOL
Shyam Sel And Power Ltd Vs CCGST & CE
CX - Issue relates to availability of cenvat credit on welding electrodes - Issue is no more res integra and is decided in favour of assessee as held by Tribunal in case of Bajaj Hindustan Ltd., where the issue pertaining to eligibility of welding electrode for repair and maintenance activity during year 2008 (i.e. prior to amendment from 1st March, 2011) has been examined - The Tribunal while taking note of decision in case of Steel Authority of India Limited took a view in favour of assessee considering the decision of three High Courts wherein it has been held that credit is eligible on welding electrodes - It has also been observed therein that mere dismissal of SLP by Supreme Court against the decision rendered by Tribunal will not be considered to be law since not decided by the Apex Court - I mpugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT |
