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2023-TIOL-1271-HC-JHARKHAND-GST
Atibir Industries Company Ltd Vs State of Jharkand
GST - Petitioner seeks a declaration that amendment carried out vide Notification dated 7th March, 2019 by the Department of Industries, Government of Jharkhand to Clause 7.5 of The Jharkhand Industrial Investment and Promotion Policy, 2016, wherein an 'Explanation' has been inserted to define the term 'State GST paid on Intrastate sale subject to tax realization in the State Government Treasury' in alleged exercise of power under Clause 10.7 of the Policy of 2016, has an effect of imposing additional restriction and/or condition nullifying the effect of the Policy of 2016 and is, thus, wholly without jurisdiction and beyond the power of the Department of Industries; that if any Input Tax Credit is claimed on the goods supplied by the Unit by any subsequent taxable person, then SGST paid on such goods shall not be eligible for reimbursement, is wholly arbitrary, illegal and contrary to the principles of Legitimate Expectations and Promissory Estoppel, as by insertion of the aforesaid Explanation, the entire benefit of subsidy/incentive on GST provided under the Industrial Policy of 2016 has been rendered nugatory; that Respondents to immediately and forthwith release the amount of GST subsidy under the Policy of 2016 to the Petitioner-Unit for the period 2017-18 to 2022-23 amounting to Rs. 117,13,33,199/- along with interest @ 18% per annum from the due date of payment of said subsidy amount till the date of actual payment.
Held: Despite the fact that State of Jharkhand is abundantly rich in mineral resources and also despite the fact that it is promulgating attractive Industrial Policies, still adequate industrial development has not taken place in the State of Jharkhand in a proportionate manner - This, in our opinion, is primarily due to lack of confidence among the potential investors regarding certainty of implementation of the Industrial Policy by the authorities of the State of Jharkhand - The classic example is the case of the petitioner before us -The objective of the Industrial Policy was to promote Industrial Growth and it is in that background provisions were incorporated for reimbursement of 75% of SGST - However, impugned Notification dated 7th March, 2019, in effect nullifies, annuls or makes illusionary, benefit under I.P. 2016 by introducing a fresh/new 'End User condition within the State' having an effect of destroying the acquired and/or vested right of the Petitioner - The Petitioner-unit came into commercial production on 20.02.2017 and there was no stipulation under the Industrial Policy which provided that benefit of reimbursement of NET VAT/SGST would not be paid to it if the recipient of the goods has availed ITC on such goods - In absence of the Notification dated 07.03.2019 being given retrospective effect, the accrued and acquired right of the petitioner cannot be curtailed - In view of the cumulative facts, Bench hereby declares that the Notification dated 7th March, 2019 having an effect of destroying the acquired and accrued and vested right of the petitioner is without any authority, irrational and unreasonable and violative of Article 14 of the Constitution of India and is unsustainable - Bench declares that the amendment carried out vide Notification dated 7th March, 2019 is not sustainable and, accordingly, quashes and sets aside the decision of the High Powered Committee dated 17.02.2023 and the letter dated 30.12.2022 issued by Additional Commissioner, Commercial Taxes Department and directs the Respondents to release the amount towards reimbursement of SGST subsidy to the Petitioner under I.P. 2016 for the period 2017-18 to 2022-23 within a period of three months - Writ application allowed: High Court [para 43, 46, 50, 53]
- Writ application allowed: JHARKHAND HIGH COURT 2023-TIOL-1270-HC-JHARKHAND-ST Rajeev Kumar Vs Pr.CCGST
ST - Petitioner seeks quashing of the order-in-original dated 07.02.2023 as being passed in complete violation of principles of natural justice and without considering the reply of the petitioner submitted on 13.9.2021.
Held: It transpires that no reply to the “SCN” was ever submitted by the petitioner - Even the date of personal hearing was fixed four times i.e., on 27.10.2022, 25.11.2022, 07.12.2022 and 04.01.2023, however, the petitioner did not respond to the same - The petitioner referred Annexure-2, 2/1 and 2/2 that he has replied to the notice as such the same should have been considered as reply to SCN but after perusing the said Annexure it appears that the said reply was given at the stage of enquiry - From bare perusal, it appears that the same was sent to the Superintendent, Range-1, Div-II, Bokaro; however, those were pre SCN queries made by the Range Officer but, admittedly; the petitioner did not reply to the SCN dated 24.09.2021 - It is further evident that the Assessee was given ample opportunity to appear before the adjudicating authority but he failed to do so - The letters of personal hearing were issued to him on the address “M/s Rajeev Kumar, Lukiya Petarwar, Bokaro Steel City, 827001” provided by petitioner-assessee in their GST registration but the letters were returned undelivered - It further transpires that the letters were also sent to the assessee through e-mail ID which was available to the department but the Assessee did not respond to the said letters - Thus, the contention of the Assessee that principle of natural justice has not been complied is misplaced and misconceived and without any basis - As such the contention of non-fulfilment of natural justice is not sustainable in the background of this case - Bench is of the considered opinion that no error has been committed by the adjudicating authority in passing the impugned Order-in-Original, inasmuch as, enough opportunities were provided to the petitioner by issuing SCN and also fixing date of personal hearing for four times; but the petitioner did not respond to either of them - Since there is efficacious alternative remedy provided in the Act itself, Bench holds that the instant writ application is not maintainable: High Court [para 5 to 8]
- Petition dismissed: JHARKHAND HIGH COURT 2023-TIOL-1269-HC-DEL-CUS Sona Printers Pvt Ltd Vs UoI
Cus - Petitioner questions the validity of order dated 6 September 2022 in terms of which the Deputy Commissioner has negated the prayer made for being permitted to amend 32 shipping bills from free shipping to drawback shipping bills u/s 149 of the Act, 1962 - S tand taken by the respondents essentially is that the petitioner had applied for conversion after a long lapse of time and this itself clearly disentitled it from being accorded the benefit of amendment as envisaged under Section 149 of the Act - Reliance is also placed by the department on the Circular 36/2010 dated 23 September 2010.
Held: Bench is of the firm opinion that the discretion and the power of amendment as stands enshrined in Section 149 of the Act could not have been fettered in any manner by Circular No. 36 at all - In any case, the CBEC could not have possibly framed a binding direction restraining authorities from exercising the discretion which stands vested in the authorities by virtue of Section 149 of the Act - Impugned order indicates that the only reasoning assigned is that the importer was unable to satisfy the Deputy Commissioner that it had "intended" to file the shipping bills under the export work relating to drawback - Bench finds itself unable to sustain the aforesaid reasoning since it is not incumbent upon the exporter to prove an "intention" to claim drawback or other benefits - Section 149 of the Act enables an exporter to claim amendments in the shipping bills for any reason that may be deemed expedient - However, that provision nowhere speaks of an obligation or duty cast upon the exporter to establish intendment - In the present case, the impugned order does not rest on an impossibility to scrutinise or dispose of the application for amendment nor does it allude to any other practical difficulty or aspect of impossibility which would have hindered consideration of the request made by the petitioner - The impugned order dated 06 September 2022 is hereby quashed and set aside - The matter shall, as a consequence, stand remitted to the Deputy Commissioner for considering the issue afresh - Petition disposed of: High Court [para 7, 9, 10]
- Petition disposed of: DELHI HIGH COURT |
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