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2023-TIOL-1347-HC-ALL-GST
Malik Traders Vs State of UP
GST - Petitioner is assailing the order dated 4.10.2019 passed by the Commercial Tax Officer by which the proceedings of Section 74 was initiated demanding Rs.12,32,148/- as wrong availment of input tax credit which was confirmed by the impugned order dated 6.3.2021 passed by Additional - Petitioner has submitted that they have purchased the goods / scrap from various parties through tax invoices for which e-way bills were also generated; that the goods were transported through trucks along with bilties and payments were made through cheques or RTGS / NEFT - On the basis of selling dealer having not shown the said purchases in its return or not deposited tax, the action cannot be taken against the petitioner; that if the selling dealer have not paid the tax / deposited the tax with the Government, the benefit of input tax credit cannot be denied to the petitioner.
Held: The benefit of concession / I.T.C. under the tax statute can be availed only on fulfilment of certain conditions or restrictions as stipulated under the Act. In the event of breach of any of the conditions as enumerated under the Act, no benefit can be conferred to the dealer - On brief reading of sections 16 and 74, it is evident that in the event of wrong availment of input tax credit, the proceedings can be initiated against the registered person or registered dealer but at the same time, restrictions has been imposed upon the authorities that without putting notice to the dealer, no adjudication proceeding can be initiated - In the case in hand, the petitioner has only brought on record the tax invoices, e-way bills, GR and payment through banking channel, but no such details such as payment of freight charges, acknowledgement of taking delivery of goods, toll receipts and payment thereof has been provided - Thus in the absence of these documents, the actual physical movement of goods and genuineness of transportation as well as transaction cannot be established and in such circumstances, further no proof of filing of GSTR-2A has been brought on record, the proceeding has rightly been initiated against the petitioner - No interference is called for by this Court in the impugned orders - The writ petition fails and is dismissed accordingly: High Court [para 11, 14, 15, 21]
- Petition dismissed: ALLAHABAD HIGH COURT
2023-TIOL-1346-HC-SIKKIM-GST
Delta Corp Ltd Vs UoI
GST - Petitioners have challenged, inter alia, Rule 31A [ Value of supply in case of lottery, betting, gambling and horse racing ] of the Central Goods and Services Tax Rules, 2017 as ultra vires the Constitution of India - Petitioners have also challenged the show cause notice dated 27.09.2023 issued against the petitioners; the rate notification dated 28.06.2017; circular dated 04.01.2018 and FAQ clarification dated 06.09.2017.
Held : Issue notice upon the respondents in Writ Petition as well as in I.A. No. 01 of 2023 subject to filing of requisites within three days - List on 05.12.2023 - Until then status quo as of today shall be maintained by the respondents: High Court [para 5, 8, 10]
- Matter listed: SIKKIM HIGH COURT
2023-TIOL-1345-HC-AHM-CUS
Shree Maa Jagdamba Traders Vs Addl. CC
Cus - Petitioner and the Seller entered into a Sale Contract dated 19.08.2022 for the sale of 7.40 MT of Areca nut and 20.220 MT of Shikakai, in terms of the price agreed in the Purchase Order dated 10.8.2022 - It is the case of the petitioner that the Cargo was loaded on the vessel at Yangon Port, Myanmar and the Seller sent a Bill of Lading dated 27.09.2022 along with Certificate of Origin dated 16.11.2022 to the Petitioner - On 17.11.2022, before the Cargo was discharged, much-less cleared for home consumption, the petitioner received an email from the Seller that due to an error by the Garage Manager and upon the tallying the stock, incorrect quantities were loaded on the vessel - The Seller also agreed to take responsibility to re-shipping the wrong quantities - It is the case of the petitioner that on the basis of a purported intelligence input that the petitioner has attempted to evade customs duty by mis-declaring the respective quantities of Shikakai and Areca nut, Special Investigation and Intelligence Branch, Mundra Customs, at the Container Freight Station, Mundra intercepted the Cargo - Customs Authorities proceed to seize the Cargo vide a seizure memo dated 08.02.2023 holding that the same are liable to confiscation under the provisions of Sections 111(d), 111(1) and 111(m) of the Customs Act, 1962 read with section 119 of the Act, 1962 - Respondent No.1 proceeded to pass the Order in Original holding the petitioner guilty of mis-declaration and imposing redemption fine and penalty - It is also a case of the petitioner that the petitioner deposited a sum equivalent to 7.5% of the penalty imposed which is in the nature of a pre-deposit and would therefore operate as stay of Order in Original in terms of Circular No.984/08/2014-CX dated 16.09.2014 - Respondent No.2 vide communication dated 19.07.2023 rejected the request of the petitioner for re-export during the pendency of the appeal or till fulfilment of the conditions ordered in the Order in Original - Therefore, being aggrieved and dissatisfied, the petitioner has preferred this petition before this Court.
Held: From a reading of the provisions of Section 125 of the Act, 1962, it is clear that redemption fine can be imposed in lieu of the confiscation of the goods if the same is imported in contravention of the any provisions of the Act, 1962 - However, the above provision does not make it conditional on release of the goods on payment of penalty - Bench is of the view that penalty imposed by the respondent authorities is for violation of the provisions of the Act, 1962 which has nothing to do with the redemption of the goods which are permitted to be re-exported on payment of fine though the same is also subject matter of the appeal - In such circumstances, the respondent authorities ought to have permitted the petitioner to re-export the goods without insisting upon the payment of penalty imposed by the said order as the same is subject matter of appeal before the Appellate Authority - Respondent authorities are directed to permit the petitioner to re-export the goods without insisting upon the payment of penalty imposed by the respondent authority in the order permitting re-export of goods on payment of redemption fine of Rs.5,00,000/- only - Petition partly allowed: High Court [para 8, 12, 13, 14]
- Petition partly allowed: GUJARAT HIGH COURT
2023-TIOL-1344-HC-DEL-CUS
Asfive Agro Pvt Ltd Vs UoI
Cus - Petitioner impugns Trade Notice no. 08/2023 dated 20.06.2023 issued by the Directorate General of Foreign Trade, inter alia, setting out the conditions of eligibility and procedure for allocation of quota for export of broken rice on humanitarian food security grounds - Petitioners are, essentially, aggrieved by the conditions that restrict the eligibility for securing allocation of quota to only those exporters, who had exported rice to the countries in question (Senegal, Gambia and Indonesia) in the three preceding financial years - The petitioners state that they have a verifiable track record of exporting rice, thus, restricting the eligibility to export rice only to those persons that had exported rice to the specified countries offends Article 14 and Article 19(1)(g) of the Constitution of India.
Held : The contention that such permission is in the nature of award or a gift by the State to certain exporters and therefore, no grievance can be made in this regard, is insubstantial - The respondent's contention that the challenge to the impugned policy on the ground that it offends Article 19(1)(g) of the Constitution of India is fundamentally flawed, is equally unmerited - The classification between the exporters, who had supplied broken rice to the countries in question in the three years preceding the year of issuance of notification prohibiting export of broken rice, and those that had not, is required to be evaluated on the basis of the two-fold test - First, whether the said classification is founded on the intelligible differentia; and second, whether the said differentia has a rational nexus to the object sought to be achieved - The file noting dated 08.06.2023 does not indicate any reasons as to why it was decided to confine the allocation of quota to exporters that have exported rice in the three years preceding the year in which the export policy was amended to prohibit export of broken rice - However, the file noting on 09.06.2023 indicates that the objective of the allocation policy was to ensure capacity and quality - The file noting dated 08.06.2023 does not indicate any reasons as to why it was decided to confine the allocation of quota to exporters that have exported rice in the three years preceding the year in which the export policy was amended to prohibit export of broken rice - However, the file noting on 09.06.2023 indicates that the objective of the allocation policy was to ensure capacity and quality - The assumption that the quality of broken rice would be assured by restricting the allocation of export quota to only those exporters that had past experience of exporting to the respective countries, and excluding other rice exporters with the established track record of exports to other countries, is without basis - There is not even a suggestion that export of rice to the countries in question involves any special procedure or would yield any special experience - Bench is unable to find that the given classification has any nexus to the said objective - In the facts of the present case, the respondent has not produced any material to establish any rational nexus between the restricting the export quota to rice exporters that had exported rice during the three financial years preceding prohibition of export of broken rice, and the object of ensuring capacity and quality - Impugned trade notice is set aside - The respondents may re-evaluate the criteria for allocation of quota for export of broken rice: High Court [para 34, 35, 39, 43, 50, 52, 57, 59, 64]
- Petition disposed of: DELHI HIGH COURT |
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