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2023-TIOL-1696-HC-PATNA-GST
Friends Mobile Vs State of Bihar
GST - Issue is whether on filing an appeal the ten per cent of the due amounts are to be paid from the Electronic Cash Ledger or the Electronic Credit Ledger - Petitioner paid the ten per cent amount from the Electronic Credit Ledger - The Appellate Authority by order dated 10.01.2023 rejected the appeal on the ground that the ten per cent has to be paid from the Electronic Cash Ledger - Said position has been accepted by the Division Bench of this Court in the case of Flipkart Internet Pvt. Ltd. [ 2023-TIOL-1676-HC-PATNA-GST ] decided on 19.09.2023 - However, observations in paragraphs 77 ad 78 of the said judgment have been stayed on 04.12.2023 by the Supreme Court [ 2023-TIOL-166-SC-GST ] - Bench notices that vide notification 53/2023-CT dated 02.11.2023, filing of delayed appeals has been allowed even beyond the period provided u/s 107 but the stipulation was of paying an amount of 12.5 per cent of the amounts pending and due to be paid as against the ten percent prescribed by the statute - The notification further states that at least 20 percent of the 12.5 percent should be paid from the Electronic Cash ledger and which apparently means that at least ten percent of the amount is entitled to be paid through the Electronic Credit ledger - Since the Supreme Court has stayed the Division Bench decision, in such circumstances since consideration of the appeal on merits is the question raised, Bench is of the opinion that pending decision of the Supreme Court, the appeal should be considered on merits - Hence, Bench sets aside the order-in-appeal dated 10.01.2023 and directs that the same be considered on merits - There shall be no insistence for payment of the 10 per cent due and payable under Section 107 of the GST Act, from the Electronic Cash Ledger - Writ petition is allowed: High Court [para 4, 5]
- Petition allowed: PATNA HIGH COURT
2023-TIOL-1695-HC-MAD-GST
Thirumalai Sales Corporation Vs Asstt. Commissioner
GST - Petitioner is a registered dealer - Petitioner's Consultant, appointed for filing their GST returns, failed to file returns and also never informed the same to the petitioner - Hence, the respondent cancelled the petitioner's GST registration and thereafter issued show cause notice and subsequently, by virtue of the impugned orders dated 15.12.2021 confirmed the demand made; which orders they came to known only when they received property attachment notice since the petitioner could not have access over GST Portal as registration was cancelled - Moreover, they were not aware of the issuance of show cause notice and did not file any reply and also did not appear for personal hearing; that no notice was served to the petitioner by way of physical mode and was served only through e-Portal and the respondent, despite knowing that the fact that the petitioner's GST registration was cancelled, continued to issue notice through e-Portal, which is not fair enough - Aggrieved by the said orders, the present petitions - Petitioner contends that the impugned orders suffer from violation of principles of natural justice since the petitioner has not been heard before passing such orders.
Held : Grievance of the petitioner that they have not been served with the show cause notice and only when they received property attachment notice, they came to know about the impugned orders appears to be genuine - Respondent, knowing fully well, that the petitioner's GST portal was closed owing to cancellation of GST registration on 08.02.2019, since, it is the respondent, who made such cancellation, ought to have issued the show cause notice directly to the petitioner by physical mode of service and not through e-Portal, which was closed on 08.02.2019 itself - Court is of the view that the impugned orders are in violation of principles of natural justice and liable to be set aside and one more opportunity has to be granted to the petitioner to put forth their contention - Writ Petitions are allowed, the impugned orders are set aside and the matters are remanded to the respondent for re-consideration - Other consequential proceedings initiated against the petitioner by virtue of property attachment notices are also liable to be set aside and accordingly, the same are set aside: High Court [para 7.3, 7.4, 8]
- Petitions allowed: MADRAS HIGH COURT
2023-TIOL-1119-CESTAT-MAD
New Era Travel And Cargo Agencies Vs CGST & CE
ST - Department was of the view that the discounts/incentives received by appellant from airlines and shipping lines is a consideration received for promotion of air cargo service and sea transportation service - A Show Cause Notice dated 20.04.2010 was issued to the Appellant for the period 2004-2005 to 2008-2009 proposing to demand service tax on the discount/incentive, received by the appellant under Business Auxiliary Services, the short paid service tax under CHA services and GTA services - After due process of law, the original authority confirmed the demand with interest and imposed penalties - Aggrieved, the appellant is before the Tribunal.
Held : Member (Judicial) allowed the appeal partly by holding that the demand of service tax, the interest thereon, the penalties imposed under Business Auxiliary Services & under Customs House Agent Services is set aside entirely; that demand of service tax and interest thereon on Goods Transport Agency Services is upheld but penalties are set aside - However, Member (Technical) held that all issues including that of penalty, but excluding the duty demanded on GTA, may be re-examined by the Adjudicating Authority on merits and a speaking order passed, after affording the Appellant a reasonable time to submit their written submissions if they so desire and after hearing them afresh within ninety days of receipt of this order - In view of the difference in opinion, the points of difference were framed and the matter is referred to the President: CESTAT [para 11.1, 12, 38, 39]
- Difference of Opinion: CHENNAI CESTAT
2023-TIOL-1118-CESTAT-DEL
Force Motors Ltd Vs CCGST & CE
CX - GVK Research Institute is engaged in providing emergency medical services to the Government of Karnataka - It invited tender for supply of OEM integrated vans for "conversion" into 367 ambulances - Purchase order was placed on the appellant - The issue that arises for consideration is whether the vans supplied by appellant would merit classification as delivery vans classifiable under 8704 2190 or as ambulance under 8703 3392 - Commissioner, in remand proceedings, classified the vans as ambulances and directed the appellant M/s Force Motors to pay the differential duty with penalty and interest - Commissioner has also imposed penalty on GVK Research Institute(s) - Appellant and GVK are aggrieved by this order and have filed appeals before the Tribunal.
Held: It needs to be noted that the effective rate of central excise duty on Traveller Van is lesser then Traveller Ambulance Van and it is for this reason that the department alleges that Force Motors with an intent to evade payment of duty connived with GVK Research Institute and mis-classified the vehicles as Traveller Delivery vans instead of ambulance vans - It is seen that after the vehicles are received from Force Motors, at the instance of Emergency Management & Research Institute, the fabricators convert the delivery vans into ambulances by fitting them with a stretcher, attendant seats, wailing horn, medical cabinets, fans, hooks for intravenous bottle and oxygen cylinder in the patient compartment - Even after the fabricators fit the above requirements, the delivery vans do not become full-fledged ambulances because after the said vans are received from the fabricators, the vans are equipped with ventilator, defibrillators, pulse oximeters, stretchers, wheel chairs etc., to make them into full-fledged ambulances - These vehicles are then registered with the Regional Transportation Authority as Ambulances - The goods have to be assessed in the form in which they are presented at the time of clearance and not what they may ultimately become after going through various processes - In order to invoke rule 2(a) of the General Rules of Interpretation, the goods should have the essential character of complete/finished articles - What was purchased by the appellant from Force Motors were bare delivery vans without any fittings, and as such they do not have the essential character of an ambulance - As the evidence placed on record clearly shows, it was subsequent to the clearance of the delivery vans, that the work of fabrication of the delivery vans into ambulances was entrusted to the fabricators - The vehicles at the time of clearance did not have the essential character of an ambulance - What was purchased were bare delivery vans without any fittings - It cannot, therefore, be said that the vans had the essential character of an ambulance - Rule 2(a) of the General Rules for Interpretation would not come to the aid of the department - The order passed by the Commissioner classifying the vehicles under Heading 8703 33 92 of the First Schedule to the Tariff Act cannot, therefore, be sustained - In this view of the matter, the penalty imposed upon the other appellants also cannot be sustained - Order dated 28.06.2021 passed by the Commissioner is set aside and the five appeals are allowed: CESTAT [para 24, 29, 30, 32, 33, 35]
- Appeals allowed: DELHI CESTAT
2023-TIOL-1117-CESTAT-MAD
CC Vs M S Alaudeen
Cus - Smuggling of gold - First Appellate Authority has, vide impugned order, dismissed the Department's appeal and partly allowed the assessees' appeals by reducing the redemption fine and penalties - Therefore, the present appeals by, both the department and the assessee .
Held : Initial burden is on the assessee in terms of Section 123 ibid to dislodge the suspicion entertained by the Revenue and prove that the goods in question that was seized from his possession, were not smuggled - It is for the assessee -appellant, who has canvassed to having retracted his statement recorded under Section 108 ibid., to explain before the Revenue authorities as to the source of the gold in question, including the names and addresses of its customers - It is well-settled that when a retraction is made, then both the original statement as well as the retraction statement have to be looked into very carefully and hence, once a retraction is made, the burden is more on the appellant to place on record the identity of his customers since he had only admitted that the gold seized belonged to them - In the Order-in-Original, apparently, the so-called retraction is not considered; as admitted in the said retraction, if the first assessee -appellant is able to place on record the details of his customers, who are the owners of the seized gold, then, the situation may be different, in which event, perhaps, the order of confiscation may vary - These aspects have not at all been considered and discussed in the orders of the lower authorities and hence, to this extent, the Order-in-Original is a non-speaking order - The First Appellate Authority has also not considered these aspects, including the contentions of the assessee -appellant as to retraction and hence, to this extent, the impugned order is also a non-speaking order - Matter remanded: CESTAT [para 8.2, 8.3, 8.4, 9.1, 9.2]
- Matter remanded: CHENNAI CESTAT |
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