2023-TIOL-1205-HC-KERALA-GST
Muhammad Salmanul Faris K Vs Supdt. CGST & CE
GST - Fraudulent ITC - Fake Invoicing - A communication dated 12.04.2023 was issued to the petitioner mentioning that with reference to the investigation launched by DGGI, Kochi Zonal Unit into a fake invoicing cartel, indicates that the petitioner was involved in availing fake input tax credit from multiple firms - Therefore, the Deputy Director, DGGI, Kochi Zonal Unit has requested the Range Officer, Ottapalam to cancel the GST registration of the petitioner and the petitioner was given a personal hearing - The petitioner did not appear for the said hearing(s) and therefore, impugned order for cancellation of the GST registration of the petitioner was passed - Petitioner submits that the said direction for cancellation of the GST registration of the petitioner was without following the due process of the law prescribed under the statutes and rules thereunder; that it is wholly without jurisdiction.
Held: There is no denial of fact that the DGGI, Kochi Zonal Unit has already taken the decision for cancelling the GST registration of the petitioner - In the view of the Bench, the competent authority was only required to form the formalities and the authority concerned or the competent authority could not have taken an independent decision - Therefore, the impugned order is set aside - However, the said order is not revived further for a period of one month - Petitioner is directed to appear before the Superintendent of Central Tax & Central Excise, Ottapalam Range, Mettupalayam Street, Palakkad on 18.09.2023 with relevant records in his possession to dispute the allegation contained in the Show cause notice - If the show cause is cancelled, the petitioner would be entitled for restoration of the GST registration certificate - However, if the authority takes a decision to cancel the GST registration of the petitioner, he may take recourse to appropriate proceedings as available under law - It is made clear that the Superintendent of Central Tax should take an independent decision without being influenced by the direction of the DGGI, Kochi Zonal Unit - Petition stands disposed of: High Court [para 5 to 7]
- Petition disposed of: KERALA HIGH COURT
2023-TIOL-1204-HC-AHM-GST
Rahimbhai Husenbhai Belim Vs UoI
GST - The application is filed for interim relief during pendency of Special Civil Application for release of goods and conveyance which are seized by revenue - Applicant submitted that during pendency of petition, goods and conveyance may be released on suitable conditions as entire action of revenue, prima facie, is without authority of law - The petitioner shall deposit an amount of Rs.2,40,784/- within a period of one week with respondent authorities - Petitioner shall also furnish a bond to the tune of Rs.6,68,840/- towards fine in lieu of confiscation of goods - On compliance of aforesaid conditions, revenue is directed to release the goods and vehicle - The aforesaid conditions shall be subject to outcome of petition: HC
- Application disposed of: GUJARAT HIGH COURT
2023-TIOL-1203-HC-MAD-GST
Rhea Shoes Vs CGST & CE
GST - Specific case of the petitioner is that the petitioner was carrying on business briefly under the VAT regime during 2013 and that the petitioner had closed down the business way back in 2013 - Petitioner submits that GST registration has been obtained by the third person mis-using the facility given by the Central and State Government - It is further submitted that the misuser has made unauthorised transaction and has passed on illegal credits using the GST registration obtained in the name of the petitioner - The petitioner has been issued with a notice dated 08.03.2022 which has culminated now in the impugned order dated 31.03.2023, whereby, the petitioner has been imposed with penalty of Rs. 2,35,64,255/- under the respective GST enactments and further penalty of Rs. 1,89,77,420/- for allegedly passing on illegal credit and a further penalty of Rs.25,000/- u/s 122(3)(d) - It is submitted that the E-mail ID, mobile number and Bank Account Number mentioned in the SCN are not that of the petitioner; that the petitioner had not applied for GST registration and the petitioner's PAN was mis-used for obtaining the aforesaid registration.
Held: Writ petition is disposed of by directing the sixth respondent [Commissioner of Police, Cyber Crime Branch, Egmore] to investigate along with respondent nos.1 to 4 and to give a report as to whether indeed the GST registration was obtained by the petitioner or by any of the nominee of the petitioner or by a third person or a stranger - The penalty imposed in the impugned order will stand affirmed against the petitioner, in case the investigation culminates in a finding against the petitioner - The respondents from the Tax Department and the respondents from the Law Enforcing Department namely the Police and the Cyber Crime shall investigate and to go to the root of the alleged wrongful registration obtained in the name of the petitioner and complete the investigation within a period of 12 months - In case, it is found that the petitioner was not involved in the registration under GST, the penalty imposed against the petitioner shall stand automatically vacated - Writ petition stands disposed of: High Court [para 8 to 10]
- Petition disposed of: MADRAS HIGH COURT
2023-TIOL-1202-HC-AHM-GST
Bhavani Industries Vs UoI
GST - A show-cause notice was issued to the petitioner on 16.02.2023 calling upon to pay IGST on ocean freight - This notice was based on the Audit report and was issued inspite of the fact that the petitioner had submitted a reply in response to the audit report wherein it was pointed out that in view of the decision of the Apex Court in the case of Mohit Minerals Pvt. Ltd = 2022-TIOL-49-SC-GST-LB whereby the Apex Court had upheld the decision of Gujarat High Court and held that no IGST is payable on ocean freight under reverse charge mechanism on contracts of costs, insurance and freight.
Held : Essentially, the show-cause notice draws power from the Notifications No. 8/2017 and 10/2017 - Division Bench of this court held that the impugned notifications are unconstitutional for exceeding the powers conferred by the IGST Act and the CGST Act - One of the grounds on which it was so held unconstitutional was that since the importer pays customs duties on the goods which include the value of ocean freight, the impugned notifications impose double taxation through a delegated legislation, which is impermissible - Apex Court, in agreement with the decision of this Court, held that a tax on the supply of a service which has already been included by the legislation as a tax on the composite supply of goods cannot be allowed; that since the Indian importer is liable to pay IGST on the 'composite supply', comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the 'supply of services' by the shipping line would be in violation of Section 8 of the CGST Act - Held, therefore, that the show cause notice impugned in the petition dated 16.02.2023 is without jurisdiction and the same is, therefore, quashed and set aside - Petition allowed: High Court [para 6, 6.1, 6.2, 7]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-1201-HC-MAD-GST
Subha Stores Vs Asstt. Commissioner
GST - Petitioner has challenged the impugned assessment orders dated 23 January 2020 passed u/s 62 of the Act, 2017 for the month of April 2018 to March 2019 and whereby, based on available records, tax has been confirmed.
Held: Government of Tamil Nadu has issued notification dated 05.04.2023 wherein in respect of registered persons who failed to furnish a valid return within a period of thirty days from the service of assessment order, such assessment order shall be deemed to have been withdrawn if such registered persons follow the special procedures mentioned - Above notification seeks to give benefit to persons like the petitioner - The petitioner shall pay requisite late fee for filing the return, if any, and the interest on the late payment of GST - The respondents may intimate the amount to be paid by the petitioner and for the petitioner to comply with the same - This exercise shall be carried out by the respondents within a period of eight weeks - Petitions disposed of: High Court [para 2, 4]
- Petition disposed of: MADRAS HIGH COURT
2023-TIOL-1200-HC-AHM-CUS
Reliance Industries Ltd Vs UoI
Cus - The Petitioner undertook exports of goods manufactured at its factories - The goods exported were eligible for grant of MEIS scrips under FTP 2015-2020 - It is the case of petitioner that default setting in respect of claim for benefit of an export promotion scheme in "N" (NO) and therefore it requires unchecking the box reading "NO" to tick/mark the box reading "YES" for claiming export benefits - It is the case of petitioner that out of over 55,000 shipping bills filed by them during aforesaid period in about 0.12% cases (68 Shipping Bills), the default setting "NO" was inadvertently not unchecked by the Customs Brokers and/or the Petitioner's staff at the time of filing of Shipping Bills and therefore the Bills were filed with default setting "NO" - Therefore according to them, there was a mistake in unchecking box "NO" - The only ground on which petitioners could not claim the benefit of MEIS was an inadvertent mistake in clicking "NO" instead of "YES" - Such an inadvertent mistake cannot disentitle the petitioners to claim benefit of MEIS or Merchandise Exports of India Scheme - The decisions denying such benefits are quashed and set aside and revenue is further directed to accept the applications made for grant of MEIS Scrips manually for 68 Shipping Bills which were subject matter of impugned orders and accordingly grant the benefits of MEIS to petitioners within a period of eight weeks: HC
- Petition allowed: GUJARAT HIGH COURT |
