2023-TIOL-1199-HC-KERALA-GST
Diya Agencies Vs STO
GST - ITC - Petitioner submits that the claim of input tax credit cannot be denied merely on the ground of amount mentioned in the GSTR 2A for which the petitioner does not have any control.
Held: CBIC had issued press release dated 18.10.2018 clarifying that furnishing of outward details in Form GSTR-1 by the corresponding supplier(s) and the facility to view the same in Form GSTR-2A by the recipient is in the nature of taxpayer facilitation and does not impact the ability of the tax payer to avail ITC - It is evident that the petitioner's claim for higher input tax has been denied only on the ground that the said amount was not mentioned in the GSTR 2A - If the seller dealer (supplier) has not remitted the said amount paid by the petitioner to him, the petitioner cannot be held responsible - Whether the petitioner has paid the tax amount and the transactions between the petitioner and seller dealer are genuine are the matter on facts and evidence - The petitioner has to discharge the burden of proof regarding the remittance of tax to the seller dealer by giving evidence - Impugned assessment order insofar as denial of the input tax credit to the petitioner is concerned is not sustainable and the matter is remanded back to the Assessing Officer to give opportunity to the petitioner for his claim for input tax credit - Merely on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of the input tax credit - Petition is disposed of: High Court [para 5, 7, 8]
- Petition disposed of: KERALA HIGH COURT 2023-TIOL-869-CESTAT-DEL
K P Automotives Pvt Ltd Vs Commissioner (Appeals) CE & CGST
ST - The issue involved is as to whether service tax is payable on the amount for the free services provided by the Assessee, an authorised dealer and service station of Maruti Udyog Ltd., to the customers during the warranty period for the sale of cars - The Commissioner (Appeals), by a common order dated 15.11.2017, has dismissed the appeals and confirmed the order passed by the Adjudicating Authority confirming the demand of service tax with interest and penalty.
Held - It was noticed by the Commissioner (Appeals) in the order dated 13.04.2021, while deciding another appeal filed by the Assessee to assail the order dated 03.03.2020 passed by the Superintendent, that the demand made in respect of a similar issue was set aside by the Tribunal and the appeal was allowed on 21.11.2008 - There is nothing on record to indicate that the aforesaid order dated 13.04.2021 passed by the Commissioner (Appeals) was assailed by the Department or has been set aside by the Tribunal - It is not possible to accept the contention advanced by the authorised representative as the decision of the Tribunal in Hindustan Auto House squarely applies to the facts of the present appeal - In such circumstances, when the issue raised in this appeal has been decided in favour of the Assessee, the order dated 16.11.2017 passed by the Commissioner (Appeals), which has given rise to the four appeals, deserves to be set aside and is set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2023-TIOL-868-CESTAT-MAD
CC Vs GH Induction India Pvt Ltd
Cus - The issue arises is, whether the Royalty or Technical Knowhow fees has to be included in assessable value - On perusal of agreement, it is seen that Royalty or Technical Knowhow Fee based on the net sales price of all domestic sales of licensed articles - Further, assessee is permitted to purchase components from other parties also - There is no restriction that assessee has to procure raw materials / capital goods only from foreign supplier - It is very much evident that Technical Knowhow Fee is not a condition of sale of imported goods - The issue has been decided by Tribunal in case of M/s. HIS Automotive Ltd. and M/s. Daewoo Motors India Ltd. - Commissioner (A) has relied upon these decisions and also the decision in case of Toyota Kirloskar Motor Pvt. Ltd. which was upheld by Apex Court vide 2007-TIOL-94-SC-CUS - It has been categorically held that Royalty paid by assessee to their foreign collaborator does not satisfy the twin conditions of Rule 9(1)(c) cannot be included in assessable value of imported goods - Department has not filed any appeal against the orders passed in earlier round which has been accepted - For this reason also, appeal cannot sustain - Impugned order does not call for any interference: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-867-CESTAT-MAD
Fourrts India Laboratories Pvt Ltd Vs CGST & CE
CX - The Assessee-company cleared products, namely P and P Medicaments for both sales as well as free distribution to physicians as samples and on which no MRP was affixed - During the relevant period, for the regular clearances, the Assessee adopted valuation under Section 4A of the Central Excise Act 1944 - For the products cleared as samples, the Assessee adopted the transaction value as per Section 4 of the Act for payment of Excise duty - The Department opined that the products cleared as physician samples also be assessed under Section 4A of the Act - SCN was issued proposing to raise demand for differential amount of duty along with interest and also for imposing penalties - On adjudication, the demands were sustained along with interest and penalty - On appeal, the Commissioner (Appeals) sustained such demands.
Held - The issue at hand stands settled vide the decision of the Supreme Court in Sun Pharmaceuticals Ltd. wherein it was held that the Show Cause Notice therein relied on the premise that since physician samples were given free of cost and no price was charged, the case was not covered under Section 4(1)(a) of the Central Excise Act 1944 - The Apex Court found such reasoning to be fallacious and incorrect - The transactions in question were between the Assessee and the distributors and between them, the price was charged by the Assessee from distributors and that what distributors ultimately did with the goods was extraneous and could not form the basis to determine value of dutiable goods - The Court observed that the case of the Assessee therein was covered within the ambit of Section 4(1)(a) of the Act - Following the findings laid down in this case, the demand merits being set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT |
