2023-TIOL-1514-HC-KERALA-VAT
Annamma Kuruvila Vs State of Kerala
Whether question as if assesses are entitled to succeed on merits of issues raised in Second Appeals before Tribunal will have to be decided by that Forum to which it is appropriate to remand matters after directing restoration - YES: HC
- Assessee's revision allowed: KERALA HIGH COURT
2023-TIOL-1513-HC-KERALA-VAT
Pyramid Architects And Engineers Vs State Tax Officer
Whether as per Section 60(1A) of the Kerala VAT Act, any pre-deposit amount already remitted as per Section 55 of the Act, is to be adjusted towards pre-deposit amount yet to be remitted - YES: HC
- Petition disposed of: KERALA HIGH COURT
2023-TIOL-1512-HC-DEL-ST
NTPC Ltd Vs Addl. Director General DGGI Coimbatore
ST/GST - Petitioner is essentially aggrieved by the show cause cum demand notice dated 29.12.2020, inter alia, raising a demand of a sum of Rs.2353 crores - A sum of Rs. 2219 crores is in respect of capacity charges; Rs. 134 crores in respect of the late payment surcharge and Rs. 82 lakhs in respect of ocean freight on transportation of coal - Petitoiner submits that in the case of Mohit Minerals Pvt. Ltd , the Gujarat High Court had also struck down the levy of GST in respect of ocean freight and the appeal against the said decision was rejected by the Supreme Court in Union of India v. Mohit Minerals Pvt. Ltd. = 2022-TIOL-49-SC-GST-LB - Insofar as the imposition of service tax on capacity charges and late payment surcharges are concerned, the same are, prima facie , covered by the circular 178/10/2022-GST dated 03.08.2022 - Counsel for Revenue points out that the said circular was issued after the SCN was issued and the present writ petition was filed; that respondent no.1 did not have benefit of the aforesaid circular while issuing the SCN - Petitioner submits that they would be satisfied if the SCN is set aside and the matter is relegated to respondent no.1 for issuance of a fresh show cause notice. Held: The said course commends to the Bench as the said circular was issued after the SCN had been issued by respondent no.1 - In view of the above, the SCN is set aside - It is, however, clarified that respondent no.1 is not precluded from issuing a fresh show cause notice after considering the import of the circular as well as the decision of the High Court of Gujarat in Messrs Sal Steel Ltd. 2019 9 TMI 1315 as well as the decision of the Supreme Court in Mohit Minerals Pvt. Ltd. (supra) - Period commencing from 29.12.2020 till date shall be excluded for the purpose of limitation in case a fresh SCN is issued: High Court [para 6 to 9]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1511-HC-DEL-CUS
Indian Flexible Intermediate Bulk Container Association Vs DGFT
Cus - Petitioner is challenging the notification dated 29th January, 2020, Public Notice No. 58/2015-2020 whereby the DGFT has retrospectively revoked the benefit under the Merchandise Exports from India Scheme [MEIS] in respect of Flexible Intermediate Bulk Container [FIBC] bags, with effect from 07th March, 2019. Held : Given that the entire MEIS scheme faced scrutiny at the WTO - singling out FIBCs from export incentives retrospectively, while retaining benefits for other products, especially those under Chapters 61 to 63, exhibits arbitrariness and discrimination - In the opinion of the Bench, no valid justification has been brought forth, for such selective retrospective withdrawal of benefits - Such an action arguably violates Article 14 of the Constitution of India - Therefore, selectively withdrawing the scheme with retrospective effect for specific categories not only appears arbitrary but also compounds the deprivation felt by the FIBC sector, which was already excluded from the RoSCTL benefit - By way of interim relief granted by this Court on 22nd February, 2022, the member units of the Petitioner were permitted to file their claims and the same have been taken on record by the DGFT - In the opinion of the Bench, for exports having already been carried out for the period from 07th March, 2019 till the date of the impugned notification was notified - exporters would have already factored in and priced exports in line with MEIS benefits - Given that impugned notification dated 29th January, 2020 could not have been given effect retrospectively, it follows that the benefit should be disbursed to all bona fide applicants, who have applied in terms of the orders of this Court - subject to fulfilment of other applicable conditions - Directions issued accordingly and petitions disposed of: High Court [para 20, 21, 22]
- Petitions disposed of: DELHI HIGH COURT
2023-TIOL-1510-HC-ALL-GST
Galaxy Enterprises Vs State of UP
GST - Petitioner challenges the orders passed by the lower authorities - Writ Tax is entertained by the Court in view of the fact that G.S.T. Tribunal is not functional in the State of Uttar Pradesh - Goods in question were in transit during its onward journey from Muzaffarnagar, U.P. to Bhilwada , Rajasthan and the same were intercepted on the ground that the goods found different as mentioned in the accompanying document but before detention and seizure order could be passed, the petitioner produced another bill i.e. tax invoice no. 140 of 25.1.2022 along with e-way bill - However, authorities below have not accepted the documents on the ground that same were produced after the movement of goods. Held : Once the documents were produced before passing of the detention / seizure order, the authorities ought not to have proceeded further as held by the Division Bench judgement of this Court in the case of M/S Axpress Logistics India Pvt. Ltd ( Writ Tax No. 602 of 2018, decided on 9.4.2018 ) and M/s Bhumika Enterprises - 2018-TIOL-2940-HC-ALL-GST Since the Division Bench has specifically decided the said issue in an identical matter, way-back in the year 2018, the impugned order is not justified - Writ petition succeeds and is allowed - Matter remanded to appellate authority who shall pass a fresh order within two months: High Court [para 10 to 12]
- Petition allowed: ALLAHABAD HIGH COURT
2023-TIOL-1509-HC-DEL-GST
Reliable Enterprises Vs Commissioner Delhi GST
GST - Petitioner's application seeking revocation of cancellation of its GST registration was rejected by the order dated 17.10.2023 - GST registration was cancelled on the ground that the principal place of business was not found / available at the time of the field visit. Held : It is apparent from the above that the petitioner's contention regarding the impugned SCN being in violation of Rule 25 of the CGST Rules has not been addressed - The petitioner also asserts that it is carrying on the business from its principal place of business and if a proper investigation is carried out, the same would be confirmed - Impugned order dated 17.10.2023 is set aside and matter remanded to the Proper Officer to consider the petitioner's application for revocation of order cancelling its GST registration, afresh - Petition disposed of: High Court [para 8, 9]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1000-CESTAT-DEL
Govinda Roadlines Vs CCGST & CE
ST - The issue involved is whether penalty under Section 78 of Finance Act, 1994 has been rightly imposed - Appellant was providing services of transportation including loading and unloading - No case is made out of deliberate breach of provisions of service tax and Rules thereunder - Further, appellant is engaged in business of transportation and cargo handling services as a sole proprietor and located in district of Chhindwara, which is a backward place of Madhya Pradesh - Admittedly, appellant have deposited the tax prior to issue of SCN - Appellant is entitled to benefit of Section 80 of Finance Act and accordingly, penalty imposed under Section 78 of Finance Act, 1994 is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-999-CESTAT-MUM
CC Vs Deepak Dialani
Cus - The issue arises for consideration is, whether impugned orders have complied with remand directions given by Tribunal in its order in adjudication of cases and whether these are sustainable in law - From the net result of cross examination of 4 witnesses and non availability of other witnesses, documents that have been produced during proceedings, the Commissioner (Adjudication) had arrived at conclusion that all the allegations based on statements of these witnesses recorded under Section 108 of Customs Act have to be discarded and SCN proceedings has to be discharged as liable to withdrawn or dropped - Similarly, he dropped SCN in his other order - On perusal of impugned orders, it is found that denovo proceedings have been conducted in accordance with law, abiding by principles of natural justice duly giving opportunity for personal hearings, opportunity for cross examination and submission of documents/evidences by both the parties to dispute - Further, various legal provisions regarding demand of duty, imposition of penalty have been examined by Commissioner (Adjudication) on the basis of evidences after examining the burden of proof under Section 123 ibid and on the basis of decision of Apex Court - Impugned orders do not require any interference: CESTAT
- Appeals dismissed: MUMBAI CESTAT
2023-TIOL-998-CESTAT-KOL
Associated Pigments Ltd Vs CCE
CX - The appellant imported Lead Oxides which is used in manufacturer of their finished goods - During 2005, their B. T. Road factory was under works suspension - For the orders placed by this factory to overseas exporter when the consignment was imported, clearance was made by this unit but was sent to their Pansukra unit after duly endorsing this fact behind the Bills of Entry - In 2008, appellant after informing the Jurisdictional AC, once again commenced their work operations at their B. T. Road factory unit - On account of clerical error in respect of four Bills of Entry, they continued to give endorsement behind Bill of Entry that goods were being sent to their Pansukra Unit though all the four consignments were received and used at their B. T. Road unit only - Department took the view that imported consignments were cleared to their Pansukra Unit under endorsed Bills of Entry and still the Cenvat Credit was taken at B. T. Road, and issued SCN demanding reversal of Credit in respect of all the five Bills of Entry - Admittedly, Range Officials of Pansukra Unit have certified that no input materials under Bills of Entry in question were received by that unit nor any Cenvat Credit was taken by them - This combined with the fact that Appellant unit at B.T. Road has maintained full records towards receipt and issue of materials would clarify that Appellants had received the imported goods at their B. T. Road unit and were correct in taking the Cenvat Credit based on Bills of Entry - The endorsement behind the Bills of Entry can be ignored as a unintended clerical error - Though the Adjudicating Authority has made a mention of Certificates issued by Range Superintendent, he has not given any findings as to why he has ignored the fact that this certificate also clearly states that no input materials have been received at Pansukra Unit - He has also not considered the details of RG 23 A records produced by Appellant - Had he taken the trouble of getting these facts verified and also taken a proper note of Certificates issued by Range Superintendent, the litigation could have been closed at that point of time itself without having to make the Tribunal and Appellant to waste precious time to get the issue sorted out after so many years - Appeal is allowed on merits - Further, SCN has been issued after more than 3 years of Cenvat being taken by Appellant - When Cenvat taken has been reflected in ER 1 Return and non-taking of Cenvat at Pansukra unit has been verified and certified by Range Superintendent, Department cannot allege any suppression on the part of appellant - Therefore, impugned order is not sustainable even on account of limitation - Accordingly, appeal of appellant allowed both on merits as well as on account of limitation: CESTAT
- Appeal allowed: KOLKATA CESTAT |
