2023-TIOL-1299-HC-KERALA-CT
Kanichayis Enterprises Vs State of Kerala
Whether estimation of gross profit can be successfully assailed before the High Court, where such estimation done by the Intelligence Officer was not challenged initially by the Assessee - NO: HC
- Revision answered in favor of Revenue: KERALA HIGH COURT
2023-TIOL-1298-HC-KERALA-VAT
Sri Jose Thomas Vs State of Kerala
Whether through the imposition of tax on the whole contract value, the State cannot be seen as imposing tax on the sale of immovable property, whereas tax is to be levied on the works contract undertaken by the Assessee, even if it is on a value enhanced by the cost incurred for completed construction - YES: HC
- Revision Petition partly allowed: KERALA HIGH COURT
2023-TIOL-1297-HC-MUM-GST
Arvind Brothers Vs Addl./Joint Commissioner
GST - Petitioner prays for a writ, order or direction to the respondent no.1 & 2 to cancel the GST registration number of the respondent no.3 in view of the letter dated 15 November 2019 issued by respondent no.2; to issue a direction to respondent no.1 & 2 not to take any cohesive steps/action against the said premises and or the petitioner in the light of the fact that the respondent no.3 has no right, title and interest in the premises; to issue a temporary order and injunction thereby directing the Respondent no. 1 & 2 to suspend the GST number of the Respondent no. 3.
Held: It is on a contention that respondent No. 3 does not have any subsisting legal right to occupy and / or utilize the petitioner's premises and avail the GST registration on the address of the said premises, the petitioner has approached respondent Nos. 1 & 2 under the Central Goods and Services Tax Act, for cancellation of the registration of respondent No. 3, insofar as it is granted on the address of the petitioner's premises - In the opinion of the Bench, certainly these are disputed questions of fact qua the rights inter se between the petitioner and respondent No. 3 - The same cannot be adjudicated in the proceedings of this writ petition - However, if the grievance as made by the petitioner is correct from the perspective of the CGST/MGST Acts, in that event, in our opinion, it is appropriate that the petitioner makes a detailed representation by making specific prayers, to the appropriate / designated officer i.e. respondent No. 1 - Designated officer shall pass appropriate orders within a period of four weeks from the representation being filed - Respondent No. 3 is also permitted to place on record its reply within one week of the service of the representation on respondent No. 3 - Scope of consideration of the representation shall be purely on the issues qua registration of respondent No. 3 as arising under CGST / MGST Acts and the factors relevant thereto - Petition disposed of: High Court [para 4, 5, 7, 8]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-1296-HC-ALL-GST
Balaji Traders Vs State of UP
GST - Present writ petition has been filed assailing the impugned order 25.11.2022 affirming the penalty order under section 129(1) of the UPGST Act passed by the respondent no. 2 as well as the impugned order dated 24.03.2023 passed by the respondent no. 3 rejecting the appeal of the petitioner - A further prayer has also been made for a direction to refund the entire penalty amount of Rs. 5,58,286/- to the petitioner along with interest at the rate of 8% per month - Petitioner is engaged in the business of trading cigarette, pan-masala & food spices - In its normal course of business, the petitioner received an order of supply from one Vaishya Distributors, Nashik (Maharashtra) - In pursuance thereof, invoice no. 1406 dated 18.11.2022 was generated - The goods were supposed to be sent through railway - The goods were intercepted on 18.11.2022 outside the railway station, which were loaded in e-rickshaw and confiscated by the GST officials - The petitioner submitted reply to the show cause notice and also deposited a penalty amount; whereupon, the goods were released - When the goods were intercepted, the e-rickshaw driver duly informed to the GST authorities that the owner of the goods, along with paper, is inside the railway station for getting the Railway Receipt prepared, but without waiting or cross-checking the said fact, the respondent - authorities not only confiscated the goods, but also issued show cause notice on 24.11.2022 - He further submits that a detailed reply was given by the petitioners narrating the said facts, but without considering the same, the impugned penalty order has been passed - He further submits that since there was a technical glitch, e-way bill was not generated, but after coming to know that the goods have been confiscated, e-way bill, along with necessary tax invoices, were shown to the authorities, but the same have not been considered.
Held: Admittedly, the goods were intercepted and confiscated outside the railway station - The goods were loaded in e-rickshaw and the driver of the e-rickshaw had duly informed the authorities that the owner of the goods, along with documents, is inside the railway station and requested for waiting, but the respondents, in their wisdom, have neither cross-checked the said fact nor waited for the Proprietor of the petitioner - firm to come out - The record further reveals that at the time of issuing notice or passing the order under section 129(3) of the SGST Act, not a word has been whispered with regard to intention to evade payment of tax - The impugned order 25.11.2022 passed by the respondent no. 2 as well as the impugned order dated 24.03.2023 passed by the respondent no. 3 are hereby quashed - The writ petition is allowed with a cost of Rs. 1,000/- - Fine/penalty, if any, deposited by the petitioners pursuant to the impugned order shall be refunded to the petitioners within a period of 15 days from the date of receipt of a certified copy of this order, failing which the petitioners shall be entitled to interest @ 9% per annum - respondents - Authorities are at liberty to recover the cost from the erring Officer concerned - Petition allowed: High Court [para 8, 9, 16, 17, 19]
- Petition allowed: ALLAHABAD HIGH COURT
2023-TIOL-928-CESTAT-MUM
Arcelor Mittal Projects India Pvt Ltd Vs CST
ST - Appellant was appointed as subj-agent by Arcelor Mittal Stainless International, Paris and appellant performed like a commission agent and their job was to seek or procure sales orders for products manufactured by steel mills outside India for customers in India - Once the foreign mills and Indian customers come to an understanding on terms and conditions of supply, purchase orders used to be placed on the foreign mills by customers themselves and the goods were directly supplied by foreign mills to Indian customers and AMSI used to get commission on such transaction - It appeared to Revenue that in respect of commission received by appellant from April 2005 to January 2009, they were required to pay service tax - When department raised objection, appellant paid service tax along with interest under protest during investigation and subsequently filed a claim for refund of already paid service tax along with interest - The original authority rejected the claim of refund stating that services were not used outside India - The Larger Bench has held that services provided by appellant are export of service under requirements of sub-rule (2) of Rule 3 of Export of Service Rules, 2005 - The Larger Bench in very clear terms has held that in present proceedings, the activity of appellant is export of service - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-927-CESTAT-MUM
ACC Ltd Vs CGST & CE
CX - Issue relates to Confirmation of demand for recovery of CENVAT Credit from Input Service Distributor (ISD) against credits disputed by it to its manufacturing units alongwith interest and penalty under Rule 14 of CENVAT Credit Rules, 2004 read with Section 11 of Central Excise Act, 1944 for three different periods - There can't be any second opinion that Rule 14 of Rules, 2004 can only be made applicable against the manufacturer/service provider or the person who availed the allegedly inadmissible credit and SCN can't be issued against Input Service Distributor for recovery of CENVAT Credit - Board Circular dated 10.03.2014 re-affirmed the same position - On the relied upon judgments placed by Department namely SKF India Ltd . = 2015-TIOL-914-CESTAT-MUM and Clariant Chemicals (I) Ltd . = 2015-TIOL-2510-CESTAT-MUM , it can be said that while in SKF India Ltd., legality of such notice sent to the manufacturing unit was questioned by appellant therein with a suggestion that it should have been served on ISD and the opinion formed by Tribunal on this issue was that since both ISD and manufacturing unit are situated in the same locality under the jurisdiction of same Commissioner, sending notice to manufacturing unit was not invalid - But, as could be noticed from written submission made by Appellant that the said order was challenged before High Court of Bombay in an appeal that was allowed by way of remand of matter to lower forum and, therefore, precedent value of said order can be considered as lost - Tribunal have, got no hesitation to say that the entire demand raised against Input Service Distributor is not sustainable in law, besides the fact that in consideration of facts also, basing on the judgments relied upon by Appellant, disputed credits under challenge here are all admissible credits - Therefore, the impugned order is hereby set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-926-CESTAT-KOL
CC Vs IB Turbo Pvt Ltd
Cus - The appellant had exported certain capital goods (steam turbine with accessory) to Nepal under duty free import from Raxaual LCS - Subsequently, re-imported the same vide Bill of Entry for repairs & re-export - The said goods were cleared under bond & bank guarantee - When the goods were repaired and ready for re-export the appellant sought extension of time for re-export of capital goods in terms of Notfn 158/95 (Custom NT) as amended by Notfn 60/2018-Cus - Request for extension of timelines for re-export, made by appellant was rejected and communicated by Assistant Commissioner - Commissioner (A) vide impugned Order disposed off the appellant's appeals without going into the merits of case - This is a live consignment pending with Department and there are no justiciable reasons recorded on merits in matter - Besides incurring detention and other charges, any delay in matter is only adding to loss of prestige and credibility before foreign buyer - As there is no appropriate order passed by Department on merits, matter remanded to Jurisdictional Commissioner of Customs concerned with a direction that case of appellant be disposed off within 10 days: CESTAT
- Matter remanded: KOLKATA CESTAT
2023-TIOL-120-AAR-GST
NCC Urban One Apartment Owners Mutually Aided Cooperative Society Ltd
GST - Applicant is a non-profit entity, registered under Telangana Mutually Aided Co-op Society Act - Applicant informs that there is only a single meter from the electricity department for the whole tower; that the individual consumption of each of the flats is measured by means of a sub-meter; that Amounts are collected from each of the members, and the total consumption cost is deposited with the Electricity department; that the electricity charges collected from members is totally paid to the electricity department and the applicant acts as a facilitator only, and there is no margin to the applicant; that since Electricity is an exempted supply, the applicant seeks to know as to whether these electricity charges being collected and totally paid to the electricity department are exempt from GST? Further, should the RWA collect GST on the total contribution in cases where the monthly contribution exceeds Rs.7500/-or should GST be charged only on the contribution in excess of Rs.7500/- per month - Is the GST amount collected in advance to be deposited with the government at the time of collection or is the amount to be deposited in the respective months?
Held: Rule 33 of the CGST Rules excludes the expenditure or costs incurred by a supplier as a pure agent of the recipient of the supply subject to the conditions prescribed in the rule - A combined reading of the notification 02/2017 -CTR, Sr no. 104 [Chapter heading 2716] and the rule 33 reveals that the cost of electrical energy supplied by the applicant to its members as a pure agent is not taxable at the hands of the applicant - So also, by the notification cited above, the electrical energy as such remains exempt from taxation and cannot be combined with others supplies being made by the applicant as a composite supply because a composite supply by definition should consist of two or more taxable supplies - Further, vide notification no. 66/2017-Central Tax dated 15th November, 2017, specific exemption from the payment of GST on advance receipt has been granted to the supplier of goods - In order words, when ‘supplier of goods' receives advance payment, he is not required to pay GST at the time of the receipt of advance payment, however, under this situation, the time of supply would arise only at the time of issuance of the invoice and the tax liability needs to be discharged only at that time - Where the aggregate turnover of a Residents Welfare Association (RWA) exceeds Rs.20 lakhs in a financial year and the amount collected for maintenance per member exceeds Rs.7500/- then the entire amount is chargeable to GST at the rate of 18% - For example, if the maintenance charges are Rs.9000 per month per member, GST @18% shall be payable on the entire amount and not on the difference amount - Further even if the annual turnover of the RWA is greater than Rs.20 lakhs but the monthly maintenance charged per person is less than Rs.7500/-, then such RWA need not pay tax on the amounts so collected - Application disposed of: AAR [para 7, 8]
- Application disposed of: AAR
2023-TIOL-119-AAR-GST
Orient Cement Ltd
GST - The applicant is transferring different goods to its dealers as incentives for achieving their sales targets - These goods include gold Coins or white goods such as a Microwave, Split Ac etc. - The dealer of the applicant also has an option to choose any of the goods under the incentive Scheme - The applicant has in his contentions treated the above transaction neither as gift nor as supply of Goods and, therefore, excluded the transaction from the purview of GST and hence ITC cannot be denied on the purchase of goods by the applicant.
Held: Applicant's obligation to issue gold coins and white goods to the dealers/ customers upon they achieving the stipulated lifting of the material / purchase target during the scheme period would be regarded as supply of goods and not a " permanent transfer or disposal of business assets " - The transaction is taxable as supply of goods and hence liable to GST; further that ITC is available: AAR
- Application disposed of: AAR |
