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2023-TIOL-1120-HC-PATNA-GST
Sita Pandey Vs State of Bihar
GST - The assessee was issued with an assessment order dated 14.12.2022 - The assessee filed an appeal which did not find favour with the Appellate Authority, who rejected it on 27.03.2023 - Immediately on the next day, the Assessing Officer issued Annexure-3 notice to the Branch Managers of the four banks in which the assessee maintained accounts - A total amount of Rs. 69,88,322.00 was sought to be recovered which included the equal liabilities under the CGST and SGST enactments - The 10 per cent deposited under each of the enactments being Rs.1,89,161.00 at the appellate stage was deducted when the recovery notice was issued - The recovery notice is dated 28.03.2023 and the entire amounts have been recovered which resulted in the present challenge before this Court.
Held : Notices were issued to the banks of the assessee and the amounts remaining in the various accounts forcefully forfeited and paid over to the Tax Department - The principles of natural justice stand embedded in every coercive action taken by a statutory authority, even within the four corners of the law; when it could, in the normal circumstances cause prejudice to the person against whom such proceedings are levelled - The recording of reasons as coming forth in the provision to Section 78 are not to be recorded surreptitiously and kept in the files, but to be informed to the assessee and a time specified within three months for the payment to be made - Appellate Tribunal under Section 109 of the CGST Act has not yet been constituted - Hence, there could not have been a recovery surreptitiously, by issuing notices to the banks and coercing them to pay the amounts, that too the entire due amounts, including the tax, interest and penalty - Legislature had, in the event of an appeal filed to the Tribunal, only intended twenty percent of the tax dues alone to be paid; on which payment the entire demand was liable to be stayed till the disposal of the appeal - Hence even if coercive action could have been taken the tax officer should have confined it to the twenty percent of the total amounts assessed, in addition to the ten percent paid at the first appellate stage and any admitted tax, if remaining unpaid - The tax officer had definitely erred, that too egregiously, to the extent of his action being termed high-handed, in surreptitiously making the recovery of the entire amounts due as tax, interest and penalty, even contrary to the legislative mandate - The State and its revenues would not collapse if the said amounts were not recovered but there is every chance of a business folding up without liquid funds being available to it, especially a running concern with liabilities to its employees, its other creditors and so on and so forth - The tax authority should also act as a facilitator of business and economy and not merely as an extortionist, always looking to have the pound of flesh, to satisfy his hierarchical superiors to push his/her personal agendas - What was required to be paid by the assessee, for maintaining an appeal before the Appellate Tribunal, if constituted, was Rs.7,56,644.00 being the twenty per cent of the tax dues under the BGST and CGST Act - Hence, the balance amounts from the total sums forfeited of Rs. 69,88,322.00 recovered shall be paid over to the assessee within a period of two weeks, failing which interest shall run at the rate of 12 per cent per annum - The officer who issued Annexure-3 order, who acted in complete derogation of the statutory provisions and established principles of law, should pay an amount of Rs. 5,000/- as cost to the assessee - Petition allowed: High Court [para 10, 12, 14, 15, 17, 18, 20, 21]
- Petition allowed: PATNA HIGH COURT
2023-TIOL-1119-HC-KOL-CUS
CC Vs Kariwala Industries Ltd
Cus - Drawback - Commissioner of Customs (Airport and Admn .), Kolkata and Ors is in appeal against an order of the Single Judge.
Held: The scope of interference of the writ court, whether in its original or appellate jurisdiction with factual findings in a decision is extremely limited - It can interfere if the authority has failed to exercise its jurisdiction or has exceeded its jurisdiction - If there is violation of the principles of natural justice, the court can interfere - If there is an error of law apparent in the order, it vitiates it - The court will not re-examine facts or evidence - It cannot substitute its views with that of the court or authority below - If the finding on facts is plausible, the court will not interfere - If the findings on facts are so glaringly and grossly erroneous or so perverse, unreasonable and unconscionable that no prudent person could have arrived at them, the court can interfere - Short of this, the court has very little powers of probing into an impugned order - Far from being erroneous or unreasonable, the judgment under appeal is extremely well reasoned - On each and every point in issue, the judge has come to a plausible finding in support of the respondent's entitlement to its duty drawback claim - Bench sees no reason to interfere with it - Impugned judgment and order is affirmed and appeal is accordingly dismissed: High Court
- Appeal dismissed: CALCUTTA HIGH COURT
2023-TIOL-824-CESTAT-AHM
Glanbia Performance Nutrition India Pvt Ltd Vs CC
Cus - Appeals have been filed by the appellants against change of classification of the goods by the original and first appellate authority - Appellant is engaged in the business of importing and selling nutritional supplements in India - Whereas the importer has classified the goods under 1806 9040, the department has proposed classification under 2106 1000.
Held: The prescription in Chapter Supplementary Note 5(a) would take precedence over the HSN Heading Notes of the CTH 2106 - In case of heading 2106, the government has chosen to deviate from the prescription of the HSN by introducing Supplementary Notes to Chapter 21 which specifically classify the impugned products under 'Heading 2106' - In these circumstances, the HSN notes to the Chapter heading, and amendments made therein, which are in conflict with the supplementary notes to the Chapter, are to be ignored - The impugned goods are rightly classifiable under Heading 2106, sub heading 2106 1000 of the Customs Tariff - It is clear that Chapter 21 of India Custom Tariff Act read with supplementary notes not having been cast in accordance with HSN, the Explanatory Notes as well as other rulings of other countries including of WCO, till it does not contain realities of Chapter 21 and supplementary of Chapter 21 which are peculiar to India, cease to have even persuasive value and become incomparable as they seek to compare the incomparable - Indian Chapter 21 being exclusive and peculiar has to be interpreted with all its peculiarities - Chapter note of heading 1806, chapter note-2 only mentions sugar confectionery containing cocoa and other food preparations containing cocoa shall be classified under Chapter 1806 - Clearly chapter note 1806 does not do away with the requirements of predominance of cocoa in the food preparations in relation to heading 1806 - In such a situation, heading 2106 read with Supplementary Note-5 having become more specific for "Protein Concentrates and Textured Protein Substances"(known to market as 'whey protein') clearly becomes the preferred head as the product has the predominance of Protein - It is clear that addition of any additive of flavoring content will not alter the characteristic of protein concentrate etc. and will not take it out from the entry 2106 in the present instance - The impugned order is upheld and the appeals are dismissed: CESTAT [para 56, 57, 70, 81, 87, 88]
- Appeals dismissed: AHMEDABAD CESTAT |
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