2023-TIOL-1247-HC-DEL-GST
Krishna Traders Vs CCGST
GST - Petitioner impugns an order dated 02.03.2023 whereby the petitioner's GST registration was cancelled with the retrospective effect from 02.07.2017.
Held: Since it is the petitioner's case that he had closed the business in Delhi with effect from 31.03.2022, the petitioner could not be expected to file any returns thereafter - Undisputedly, a tax payer is entitled to close his business and seek cancellation of the GST registration - In the given circumstances, Bench considers it apposite to direct that the cancellation of petitioner's GST registration shall take effect from 31.03.2022 - Petition disposed of: High Court [para 9, 11]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1246-HC-KERALA-GST
EVM Passenger Cars India Pvt Ltd Vs State of Kerala
GST - On verification, it was found that no documents prescribed under Section 129 Act, 2017 read with Rule 138 of the Rules made thereunder were accompanying the consignment - The driver of the vehicle deposed that at the time of inspection he was not in possession of any valid documents for transportation of the goods as prescribed under the statute - Suspecting evasion of tax, a Show Cause Notice was issued to the owner of the goods through the driver of the vehicle - Pending adjudication, the petitioner had filed WP and which was disposed of directing the adjudicating authority to complete the adjudication within seven days - Accordingly, the impugned penalty order came to be passed.
Held: Absence of valid documents in possession of the person in-charge of the goods would be treated as a wilful act of evasion of tax - If the vehicle was not intercepted and goods were not verified, it would have lead to the leakage or evasion of the revenue by the dealer - Upon verification of the e-way bills, contrary to the claim of petitioner, it was revealed that the vehicle mentioned therein and the vehicle through which the goods were attempted to be transported were distinct - Instead, after receipt of the Show Cause Notice it was contended by the dealer by fabricating a story that the local transporter failed to arrange the statutory requirements - The taxing provisions have to be construed strictly - When the mandate of law is that the goods being transported must be accompanied with relevant statutory documents and if the goods are being transported without the relevant statutory documents, the consequences would follow - Impugned order imposing the tax and penalty does not require any interference and, therefore, the writ petition fails and hereby dismissed: High Court [para 9, 10, 11, 13]
- Petition dismissed: KERALA HIGH COURT
2023-TIOL-1245-HC-DEL-GST
Delhi Metro Rail Corporation Ltd Vs Addl. CCGST Appeals
GST – Petitioner is aggrieved by denial of its claim for the refund of Rs.2,90,520/- as deposited by it under a mistake - There is no dispute that the refund as claimed would be payable to the DMRC - However, its refund claim was rejected on the ground that the application for refund was filed beyond the period of two years as stipulated under Section 54(1) of the Act, 2017 - It is the DMRC's case that retaining the amount paid under a mistake would amount to collection of tax without the authority of law and thus, violates Article 265 of the Constitution of India.
Held: Reading of the Gujarat High Court decision in M/s Cosmol Energy Private Limited v. State of Gujarat indicates that the issue decided in the said case is similar to the one involved in the present case - The court had held that “Section 54 of the CGST Act is applicable only for claiming refund of any tax paid under the provisions of the CGST Act and/or the CGST Act. The amount collected by the Revenue without authority of law is not considered as tax collected by them and, therefore, Section 54 is not applicable" – Counsel for Revenue fairly states that the Department has not filed any appeal against the decision - The amount of Rs.2,90,520/- deposited by the DMRC on an erroneous belief that payment for services rendered by it were chargeable to tax, cannot be retained by the respondents - The period of limitation for applying for a refund as prescribed under Section 54 of the CGST Act, would not apply where GST is not chargeable and it is established that an amount has been deposited under a mistake of law – Petition is allowed: High Court [para 9, 12, 14]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1244-HC-AHM-CUS
Ashapura Agrocomm Pvt Ltd Vs UoI
Cus - Urgent issue is with regard to the release of the perishable goods by the Customs Authorities which are lying at Mundra Port so as to see that the perishable goods are in proper condition - It appears that there is a dispute with regard to the ownership of the goods between the petitioners of both the petitions and in absence of bills of entry being filed with the respondent authorities, it would not be possible for the custom authorities to make assessment order for determining the duty payable for release of the goods either for home consumption or for warehousing the same.
Held: Following Interim order is passed in the interest of justice viz. respondent no.5 - Zestmarine Services Private Limited is directed to file Bills of Entry in respect of all the seven Bills of Lading before the respondent-Custom Authorities within a period of one week - Respondent Customs Authorities as well as Assessment-cum-Authorized Officer, Kandla SEZ, are directed to pass assessment order on Bills of Entry to be filed by the respondent no.5 within a period of one week - Cost of warehousing of the goods in question shall be borne by the petitioners of both the petitions - For the above interim arrangement, both the petitioners are directed to deposit Rs.15 Lakh each with the Registry of this Court within a period of one week - Stand over to 12.10.2023 for further orders: High Court [para 11, 12]
- Interim order passed: GUJARAT HIGH COURT
2023-TIOL-1243-HC-DEL-CUS
Gala International Pvt Ltd Vs Addl. Director General DRI
Cus - Petitioners have filed their respective petitions impugning a common show cause notice dated 30.04.2009 - Petitioners also impugn the common letters dated 20.01.2023 and 06.03.2023 issued by respondent no.2 calling upon the petitioners to appear for hearing in respect of the impugned show cause notice.
Held: Admittedly, the petitioners were not informed that the impugned show cause notice was put in the Call Book - Present petitions are covered by the ratio of the decision of this Court in Nanu Ram Goyal = 2023-TIOL-455-HC-DEL-ST and that deferring the adjudication of the impugned show cause notice on account of the Call Book procedure was not justified - However, without going into the question as to the validity of the action of the respondents in placing the impugned show cause notice in a Call Book, it is also apparent that the impugned show cause notice was not adjudicated for a period of over eight years (30.04.2009 to 21.07.2016) even though there was no impediment in adjudicating the same - It is at once clear that the period [s.28(9) of the Act, 1962] within which the impugned show cause notice was required to be adjudicated has long since elapsed - The controversy raised is squarely covered by the recent decision of this Court in Swatch Group India Pvt. Ltd. = 2023-TIOL-991-HC-DEL-CUS - In view of the above, it is no longer open for the respondents to proceed with the adjudication of the impugned show cause notice - Accordingly, the impugned letters recommencing the adjudication proceedings are set aside - Since the period for adjudication of the impugned show cause notice has elapsed, the same cannot be adjudicated - Petitions allowed: High Court [para 33, 34, 36]
- Petitions allowed: DELHI HIGH COURT
2023-TIOL-117-AAR-GST
Hitze Boilers Pvt Ltd
GST - Applicant seeks a ruling on the following question - Whether the subsidy received from the Central / State Government is to be excluded from the value for the purpose of arriving at the GST liability? - The recipient of machinery is eligible for 90% subsidy grants from Central Government and State Government - The total amount of subsidy is Rs.20,87,280/- (being 90% of the cost of the Plant and Machinery) - The amount of subsidy will be deposited in an Escrow account opened with Canara Bank where the recipient is the account holder and from this account the funds will be transferred to the supplier of Machinery, M/s. Hitze Boilers Private Limited (the Supplier) - The applicant has stated that the recipient is insisting that the supplier shall charge GST on the total invoice amount as reduced by the subsidy amount which is sanctioned to him and this is in line with Section 2(31) and Section 15(2)(e) of CGST Act wherein consideration shall exclude any subsidy given by the Central Government or a State Government.
Held: In the instant case, it is observed that the contract for supply of machinery is between the Applicant and the recipient i.e. M/s Chinnapuri silks; the applicant supplier raises the invoice for the full contract price and even if the recipient is not provided subsidy, the contract price is still recoverable from the recipient - Exclusion provided in Section 15(2)(e) is not applicable in the instant case and the subsidies provided by Central Government and State Governments cannot be excluded in determining the value of supply - Held that the subsidy received from the Central / State Government cannot be excluded from the value of supply as the same is not affecting the price of supply: AAR
- Application disposed of: AAR |
