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2023-TIOL-1675-HC-AHM-CUS
Satyendra Packaging Ltd Vs UoI
Cus - Respondents authorities have denied the benefit of the RoDTEP scheme to the petitioners on the ground that according to the policy, export made by the petitioners falls under the restricted category, therefore, the petition.
Held : Respondents could not have denied the benefit of rebate under the RoDTEP scheme to the petitioners, more particularly, when the petitioners have exported product after fulfilling the conditions as prescribed by the Directorate of Sugar as well as the Notifications issued by the Central Government from time to time - The Coordinate Bench of this Court [ 2023-TIOL-491-HC-AHM-CUS ] has also passed the order permitting rebate to the petitioner of the said case - Basic objective of the RoDTEP scheme is to grant benefit of rebate to the exporter as an incentive for exporting product - Respondents are directed to grant benefit of rebate under the RoDTEP scheme to the petitioners who have exported sugar with specific permission under the specific condition prescribed by the Directorate of Sugar as per Notification No.19/2015-20 dated 17th August 2021 and Clause 3 of paragraph 2 of the Notification No.76/2021-Customs (N.T.) dated 23rd September 2021 - Petitions allowed: High Court [para 9, 13, 14]
- Petitions allowed: GUJARAT HIGH COURT
2023-TIOL-1674-HC-DEL-GST
Mahan Polymers Vs UoI
GST - The petitioner claims that during the course of the search, he was compelled to deposit the sum of Rs. 10,00,000/- - Petitioner prays that directions be issued to the respondents to refund the sum of Rs. 10,00,000/- as being collected illegally. Held: In the present case, the information that the petitioner had purchased the goods from a supplier, which was found to be non-existent at his principal place of business, has a direct link in forming the belief that the petitioner wrongfully availed of the ITC - In view of the above, Bench finds no ground to declare any search or inspection conducted on 12.11.2022 as illegal or vitiated on the ground that there was no reason to believe that the petitioner had wrongfully availed the ITC - The sufficiency of the reasons is not amenable to judicial review - So long as there is material or information, which supplies a rational basis for forming a belief that the conditions as stipulated under Section 67(1) of the CGST Act are satisfied, the search or inspection authorized under the said section cannot be faulted - The central officers had conducted the inspection pursuant to an ongoing investigation in regard to creation of fake firms to fraudulently avail ITC - In view of the above, Bench finds no merit in the petitioner's contention that the inspection conducted by the central officers were illegal - The provisions of Section 6(2)(b) of the CGST Act do not preclude the central officers from conducting an inspection for concluding an ongoing investigation merely because a prior inspection or search was conducted by the Delhi GST authorities - The deposit of Rs. 10,00,000/- was made by the petitioner in the FORM GST DRC-03 at about 9:00 pm while the officers of respondents no.3 were conducting the inspection - Petitioner immediately, by a letter dated 14.11.2022 claimed that the deposit was made involuntarily and under coercion - It is also not disputed that FORM GST DRC-03 had been submitted from the laptop carried by the visiting team - It is also relevant to note that the petitioner filed the present petition on 23.11.2022, that is, within a period of less than ten days, claiming refund of the amount paid - In view of the above, Bench directs the respondents to refund the sum of Rs. 10,00,000/- deposited by the petitioner in FORM GST DRC-03 on 12.11.2022 - Petition is disposed of: High Court [para 13, 15, 16, 21, 22, 25, 26]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1673-HC-DEL-GST
Mahan Polymers Vs Commissioner Delhi GST
GST - Petitioner claims that the inspection conducted on 18.10.2022 was illegal as the authorization for the same [FORM GST INS-01] was issued without mentioning any specific reason for the same. Held : Authorization in FORM GST INS-01 does not require the officer concerned to give any reasons in detail - It merely requires that the reason for which the search / inspection is to be conducted under the statute, be mentioned - It is also affirmed in the counter affidavit that during the course of the search, it was noticed that the petitioner had availed of ITC amounting to Rs.2,39,40,871/- on account of purchases made from suppliers whose registrations were cancelled - In view of the above, Bench finds no merit in the contention that the search conducted was illegal: High Court [para 8, 9] GST - Whether the petitioner is entitled to the refund of ITC deposited during the course of the search conducted on 18.10.2022 - According to the petitioner, he was compelled to deposit a sum of Rs. 22,14,226/- by reversing the ITC available in his Electronic Credit Ledger (ECL). Held : It is necessary to bear in mind that an opportunity to pay the tax prior to issuance of any notice under Sections 73 or 74 of the DGST Act is for the benefit of the taxpayer - In the present case, the petitioner has stoutly disputed that the reversal of ITC was voluntary - It is also material to note that the respondents have not issued an acknowledgment in FORM GST DRC-04 - Thus, the procedure under Rule 142 of Delhi Goods & Services Tax Rules, 2017 has not been followed - There is no adjudication of the question whether the taxpayer was required to reverse the ITC in respect of purchases made from dealers whose registration was cancelled after the receipt of supplies, albeit retrospectively - Petitioner claims that his statement was recorded at about 11:30 pm on 18.10.2022; that the petitioner was under the stress of interrogation as the inspection was continuing from 4:00 pm, earlier that day - Petitioner may have found the circumstances intimidating and had, accordingly, agreed to reverse the ITC - In the circumstances, Bench directs the respondents to reverse the ITC amounting to Rs. 22,14,226/- in the petitioner's ECL: High Court [para 15, 18, 19, 20, 21, 23]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1672-HC-DEL-GST
Neeraj Paper Marketing Ltd Vs Special Commissioner Department of Trade And Taxes
GST - Petitioner seeks a direction to the respondent to refund the amount of Rs. 28,20,000/- deposited by the petitioner during the course of search and inspection conducted on 29.07.2022, along with a simple interest of 12% p.a. from the date of payment - Petitioner claims that it was coerced to deposit the aforesaid amount and that the same cannot be considered as a deposit done voluntarily u/s 74(5) of the Act, 2017. Held : Whilst the petitioner has accepted that there was a mismatch in its return regarding the ITC, he did not acknowledge that the ITC was incorrectly availed - On the contrary, the Director of the petitioner had acknowledged that in case there was any tax liability, the same would be paid with interest and penalty - Admittedly, the respondents have not ascertained the said liability and no notice has been issued to the petitioner as contemplated under Rule 142(1A) of the CGST Rules communicating the details of any tax, interest or liability as ascertained - It is not disputed that payments aggregating to Rs.28,20,000/- have been made at 11:49 PM and at 12:38 PM during the search operations - Bench is, therefore, inclined to accept the petitioner's contention that the payments made by it were not voluntary payments but under compelling circumstances - Respondents are directed to refund the amount deposited by the petitioner by making a payment of Rs.23,70,000/- in cash along with interest at the rate of 6% per annum from 13.12.2022 till the date of payment - The respondents are also directed to refund an amount of Rs.4,50,000/- by reversing the debit from the petitioner's ECL - Petition allowed: High Court [para 17, 18, 19]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1671-HC-DEL-GST
My Trading Overseas Vs Commissioner Delhi GST
GST - Petitioner impugns an order cancelling their registration - The said order was passed pursuant to a SCN alleging - In case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts . Held : It is apparent from the above that the impugned SCN was bereft of any particulars - It did not clearly set out any specific reason for proposing to cancel the petitioner's GST registration - It did not set out any particular allegation of fraud or wilful misstatement allegedly made - It provided no clue as to the facts allegedly suppressed by the petitioner - It is settled law that the purpose of the show cause notice is to enable the noticee to respond to the allegations, which in turn enables the concerned authority to take an informed decision - The impugned SCN does not satisfy the rudimentary requirement of a show cause notice - In view of the above, the impugned order is void as having been passed in violation of the principles of natural justice - Impugned order is also not informed by reason as it does not set out any ground for cancelling the petitioner's GST registration, save and except mentioning that it is pursuant to the impugned SCN - Respondent is directed to forthwith restore the petitioner's GST registration - Petition disposed of: High Court [para 6 to 10]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1670-HC-DEL-GST
Shivani Overseas Vs Commissioner Delhi GST
GST - Petitioner alleges that during the course of the inspection, the visiting team of officers forced him to reverse the Input Tax Credit (ITC) amounting to Rs. 18,72,000/- in respect of supplies purchased from one M/s Samridhi Exports - The petitioner was informed that the GST registration of the said supplier was cancelled retrospectively - The petitioner states that he was detained in the office from 4 pm of 07.10.2022 to 2.30 am of 08.10.2022 - It is contended on behalf of the petitioner that during this time, the petitioner succumbed to the intimidation of the visiting team and was compelled to transfer the aforementioned amount of the ITC - Petitioner, therefore, prays that directions be issued to the respondents to refund the amount of Rs. 18,72,000/-, which was deposited by the petitioner during the course of inspection/search conducted at his premises - Petitioner also submits that order dated 07.10.2022 (in form INS-01) authorizing the search/inspection under Section 67 read with Rule 139(1) be set aside. Held : Clearly, where a taxpayer turns around and states that the payments had not been made voluntarily and the circumstances prima facie indicate so, the taxpayer must be granted the benefit of withdrawing such payments - Obviously, in such cases, the taxpayer would forfeit immunity from levy of any penalty and the concerned authorities are not precluded from proceeding against the taxpayer in respect of any default and to the full extent as permissible under law - The requisite procedure under Rule 142 of the CGST Rules has also not been complied with - Admittedly, the respondents have not issued any acknowledgement accepting the payment made by the petitioner in Form GST DRC-04 as required under the CGST Rules - It is clear from the above, that it is impermissible for the officers to pressurize the taxpayers to pay tax without following the requisite procedure, notwithstanding that it may be apparent that such tax is due and payable - Respondents to reverse the ITC of Rs. 18,72,000/- deposited by the petitioner on 08.10.2022 and forthwith credit the same in his ECL - In the event the Commissioner or a duly authorized officer has reason to believe that the ITC available in the ECL of the petitioner has been fraudulently availed or is ineligible, the concerned officer is not precluded from passing an appropriate order including any order under Rule 86A - Petition disposed of: High Court [para 32, 37, 43] GST - Form GST INS-01 - s.67(1) - Rule 139(1) - There may be some merit in the grievance of the taxpayer that the proper officer has not set out any specific reason but has merely reproduced all reasons on the basis of which an authorization under Section 67(1)(a) of the CGST Act could be issued - However, it is seen that the reasons as set out are connected - Sufficiency of reasons is not subject to judicial review - It is well settled that so long as there is a rational basis supplying the reasons to believe that any of the requisite grounds for conducting the inspection/search exist, no further enquiry is necessary - In the present case, Bench is unable to accept that the authorization for conducting search or inspection under Section 67 of the CGST Act is illegal for want of reasons to believe that the grounds for conducting the said search as set out in Section 67(1)(a) of the CGST Act, exist: High Court [para 17, 20]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1669-HC-DEL-GST
Indian Oil Corporation Ltd Vs CCGST
GST - Petitioner is aggrieved by the denial of claims of refund of accumulated ITC on the ground that the rate of tax on input supply and output supply are the same - According to the Revenue, the refund is not permissible in view of Clause (ii) of the proviso to Section 54(3) of the Act, 2017 - Both the lower authorities referred to the Circular No.135/5/2020-GST dated 31.03.2020 in this regard. Held : CBIC can issue such orders, instructions, or directions only if it considers it necessary and expedient to do for the purpose of uniformity in implementation of the CGST Act - Plainly, CBIC has no power to issue circulars in derogation of the provisions of the CGST Act - CBIC can neither add to the provisions of the CGST Act nor curtail the import of any part of the enactment - Section 168(1) of the CGST Act confines the powers of CBIC to issue circulars for uniformly implementing the provisions of the CGST Act - It can do nothing further - Plainly, if M/s IOCL is entitled to refund in terms of Section 54(1) of the CGST Act, the same cannot be denied by virtue of any circular issued under Section 168(1) of the CGST Act - Petitioner's claim for refund is founded on Clause (ii) of the proviso to Section 54(3) of the CGST Act - According to the petitioner, the rate of tax on certain inputs is higher than the tax paid on outputs (bottled LPG) - Resultantly, the petitioner has been unable to fully utilise the ITC on its inputs - The use of the word 'inputs' [Clause (ii) of proviso to sub-section (3) of Section 54 of the CGST Act refers] in plural clearly indicates that the refund of accumulated ITC is not confined to ITC accumulated on a singular input - Thus, there may be multiple inputs that may be used or consumed for effecting the output supplies - In view of the plain language of proviso to Sub-section (3) of Section 54 of the CGST Act, the Revenue's contention that the petitioner is not entitled to refund of unutilised ITC as the rate of bulk LPG and bottled LPG is the same, is unsustainable - It is impermissible to disregard the rate of tax on other inputs - Circular No.135/05/2020 has no application where ITC, refund of which is sought, has accumulated on account of rate of taxes on certain inputs being higher than tax chargeable on the output supply, notwithstanding that the one of the main input and output is chargeable at the same rate of tax - Authority is directed to process the petitioner's applications for refund along with applicable interest in accordance with law as expeditiously as possible and in any event, within a period of six weeks - Petition is allowed: High Court [para 17, 20, 22, 25, 28, 38]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1668-HC-MP-GST
Rean Watertech Pvt Ltd Vs CST
GST - Petitioner assails the legality, validity and propriety of show-cause notice dated 20.04.2022 and the consequential impugned order dated 29.08.2022 on the sole ground that the show-cause notice is non-speaking and thus insufficient for the petitioner/ assessee to prepare an effective reply and defend himself thereby violating the principles of natural justice. Held : Having perused Section 73 of the GST Act, Rule 142 of the CGST Rules and Form GST DRC-01, it is obvious that the impugned show-cause notice contains enough material to enable petitioner/ assessee to submit an effective reply so as to prevent the said show-cause notice from being sacrificed at the altar of principles of natural justice - The details in the show-cause notice satisfy the per-requisites prescribed in Form GST DRC -01 which is statutory in nature - Thus, the contents of the show-cause notice cannot be termed as deficient or inadequate preventing the petitioner/ assessee to prepare and file an effective reply and defend himself before the Proper Officer - If petitioner is of the view that certain additional document/material is required for filing an effective reply to the same, then petitioner could have very well demanded the same from the Proper Officer by disclosing the relevancy of such evidence/material to the issue involved - No such representation was made by the petitioner pursuant to the show-cause notice and, therefore, it is presumed that petitioner has no grievance against the show-cause notice - Court is afraid that it cannot help the petitioner due to petitioner not having raised the objection of the show-cause notice being deficient - Accordingly, this Court sees no reason to interfere in this matter especially in view of the non-availed statutory remedy of appeal u/s 107 of the Act, 2017 - Petition dismissed: High Court [para 4, 5, 6, 7, 7.1]
- Petition dismissed: MADHYA PRADESH HIGH COURT
2023-TIOL-1667-HC-AHM-GST
Akshar Enterprise Vs State of Gujarat
GST - Petitioner, after receiving his registration under the GGST Act applied for change/amendment in place of business on 11.02.2023 which came to be allowed vide order of amendment dated 03.03.2023 and accordingly, an amended certificate was issued to the petitioner - Petitioner has prayed to quash and set aside the SCN dated 23.06.2023 issued by respondent no.2 and all consequential proceedings that may have been initiated pursuant thereto - Petitioner submits that no details in connection to the allegations mentioned in notice or any documents in the connection to the allegations is provided to the petitioner along with the SCN and in absence of such details, the petitioner was not able to file any reply to the show cause notice; that the notice only mentions "Rule 21(a) - Person does not conduct any business from the declared place of business." Held: It is evident from the notice itself that the impugned notice is bereft of any reason or documentary evidence in support of such reason - It is well settled that the reasons are heart and soul of any order and non-communication of the same amounts to denial of reasonable opportunity of hearing, resulting in miscarriage of justice and resultantly violates principles of natural justice - Impugned show cause notice dated 23.06.2023 is hereby quashed and set aside - Respondent is directed to restore the registration of the petitioner forthwith: High Court [para 7, 8, 9]
- Petition allowed: GUJARAT HIGH COURT |
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