2023-TIOL-1221-HC-AP-GST
Sri Varsha Food Products India Pvt Ltd Vs Asstt. Commissioner of Service Tax
GST - Petitioner prays for setting aside assessment order confirming the levy of tax on Fruit Pulp manufactured for the tax period 2017-18 to 2020-21 by the petitioner at 18% as against 12% as clarified by the 4th [CBIC] and 5th respondents [Revenue counsel] herein as illegal and for a consequential direction.
Held: Submission of the Revenue Counsel that the Circular 179/11/2022-GST dated 3rd August 2022 issued by the Government of India, Ministry of Finance, Department of Revenue (Tax Research Unit), applies prospectively i.e., from 03.08.2022 and as the tax period in the instant case is being 2017-18 to 2020-21, the said Circular will not operate retrospectively and, therefore, the petitioner cannot claim any advantage on the strength of aforesaid Circular, is unacceptable - Circular, it was pellucidly mentioned that " including mango pulp, was always meant to be at the rate of 12% " - Considering such mentioning, the Division Bench of this High Court, which was also dealing with the case falling prior to the date of Circular, held that the petitioner therein was liable to pay GST on mango pulp at the rate 12% only and passed the order accordingly - It would show, a Division Bench of this High Court has ultimately held that since the Circular reads to the effect that the GST rate including mango pulp was always meant to be at the rate of 12%, the same has to be taken as, for all the times, the rate was only 12% so far as mango pulp is concerned - Writ petition is allowed as prayed for: High Court [para 7, 8]
- Petition is allowed: ANDHRA PRADESH HIGH COURT
2023-TIOL-1220-HC-KERALA-GST
Sanscorp India Pvt Ltd Vs Asstt. Commissioner, GST
GST - Petitioner was issued with show cause notice directing him to show cause as to why registration under the GST Act, 2017 should not be cancelled for the failure to file returns for a continuous period of six months and he was given time to file reply to the show cause notice and also to appear for personal hearing - Despite the said notice, neither the petitioner filed a reply, nor he had filed a return - Therefore, the petitioner's registration was cancelled with effect from 15.01.2023, vide order dated 04.03.2023 - Aggrieved, the petitioner is before the High Court.
Held: An alternative remedy is available to the petitioner, as per the Act and the Rules thereto, which the petitioner should have resorted to within the statutory prescribed limit - Against the order of cancellation of registration, the petitioner ought to have availed the remedy of appeal within a maximum period of three months from the date on which the order is communicated - Admittedly, the petitioner did not file returns for a period of six months consecutively and, therefore, the authority has no option than to cancel the registration - Bench does not find any error of law in the exercise of jurisdiction by the authority in cancelling the registration of the petitioner - When the whole of the country files returns and pays tax by uploading the same in the same software, it cannot be said that the GST portal is not viable - Contention that the GST software is not in consonance with the Act and the Rules thereto is rejected - Writ petition is dismissed: High Court [para 4, 5]
- Petition dismissed: KERALA HIGH COURT
2023-TIOL-882-CESTAT-DEL
Kaenat Glass Industries Vs CCE & CGST
CX - The present appeal was filed by the Assessee to challenge vires of O-i-A wherein an O-i-O raising duty demand had come to be upheld - The issue that arises for consideration in this appeal is as to whether the amount of subsidy received by the appellant from the State Government under the Rajasthan Investment Promotion Scheme, 2010 is includible in the assessable value of the goods cleared during the period in dispute i.e. from March 2011 to March 2015 in terms of section 4(3)(d) of the Central Excise Act, 1944.
Held - The issue at hand stands settled vide the judgment of the Tribunal in Harit Polytech Pvt. Ltd. Vs. Commissioner, Central Excise, CGST, Jaipur-I wherein it had finally been held that no Central Excise duty is liable to be paid on sales tax amounts received as subsidy under a State Government scheme, as the same cannot be treated as sales tax proceeds collected from buyers - Following this judgment, the O-i-A in question merits being set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-881-CESTAT-KOL
Naresh Kumar And Company Pvt Ltd Vs CST
ST - Issue involved is as to whether the services rendered by appellant fall under category of transportation within mines as contended by appellant or cargo handling services as alleged by Revenue - On examination of nature of services provided by appellant specified in work order, Tribunal have no doubt that agreement is one for transportation of cement and fly ash and the other activities of loading and unloading are merely incidental to the principal service of transportation - It is certainly not the other way round as contended by Revenue - The fact that lump sum payment is received for services of transportation along with incidental loading and unloading will not change the essential character of principal service of transportation - Appellant will not fall under service classification of cargo handling service - The Chartered Accountant has also argued on the aspect of limitation - SCN was issued was issued much beyond the normal period of limitation which was one year at that relevant point of time - The issue is one involving interpretation of law - Issue of classification between services of transportation and cargo handling was a vexed and disputable issue - It is a settled law that invocation of extended period cannot be sustained in such cases - Thus, demand is not sustainable on the ground of limitation also - Impugned order cannot be sustained and is accordingly set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-880-CESTAT-AHM
Indian Farmers Fertilizers Cooperative Ltd Vs CC
Cus - The issue involved is, if appellant importer and foreign base supplier namely Oman India Fertiliser Company (OMIFCO) are related or otherwise - The matter has been examined earlier by Tribunal in appellant's own case 2023-TIOL-08-CESTAT-AHM , wherein it has been held that appellant and OMIFCO are not related parties - Department has also not produced any evidence to show that the relationship between parties has influenced the price - The reasons for rejecting transaction value is not in consonance with law - It is apparent that appellant importer and foreign base exporter cannot be treated as related parties - Consequently, impugned order which treats two as related party cannot be sustained and the same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
