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2023-TIOL-174-SC-CX
Savera Industries Vs DCCE
CX - Accused have filed a petition under Section 245(2) of Cr.P.C, seeking for discharge on the ground that they do not come under the purview of Section 2(f) of the Central Exercise Act, 1944 - The High Court held that Revision petitioners are tax evaders or not depends upon the fact that they are the manufacturer or fabricator and hence, the factual position has to be determined by the accused during the cross-examination of department witness and hence, the same cannot be determined at this stage - Therefore, the order of dismissal of discharge petition by trial Court does not suffer from any perversity and is confirmed - Criminal Revision Case was dismissed.
Held - The matter is listed for further hearing on February 02, 2024: SC
- Case deferred: SUPREME COURT OF INDIA 2023-TIOL-1732-HC-P&H-CX
Glaxo Smithkline Consumer Healthcare Vs Joint Secretary Govt. of India
CX - Revision application filed by the petitioner under Section 35EE of the Central Excise Act, 1944 was dismissed on 23.09.2004, therefore, the present petition - Petitioner has challenged the order dated 23.09.2004 on the grounds that there was sufficient cause for it to not to file application with the revisional authority within the prescribed time limit as it was pursuing remedy before a wrong forum under a bonafide plea - It was also submitted that since the application before respondent No.1 had been filed within a period of 10 days from the date of passing order by the tribunal, therefore, there could not be any unjustified delay in filing the revision application and respondent No.1 therefore, committed an error in dismissing the application filed by the petitioner for condoning the delay for filing the revision petition.
Held: As per provision of Section 35EE, a revision application could not be entertained beyond the maximum period of 6 months from the date of communication to the applicant of the order challenged - The well settled proposition of law is that even if a statute imposes embargo upon power of an authority to condone the delay by providing a specific period up to which such delay can be condoned, nonetheless, the time spent by the applicant in prosecuting wrong proceedings which are bonafide with due diligence can be excluded while computing the period of limitation, cannot be ignored - The observation made by respondent No.1 that as there was a specific recital in the preamble attached with the order in challenge that the petitioner could relegate to revisional authority for its remedy, therefore, not resorting to the action of the filing revision application before respondent No.1 amounted to malafide , cannot be accepted in view of the fact that first of all there is nothing on record to show that any such preamble had been attached with the copy of order dated 14.02.2003, which was supplied to the petitioner and secondly, that even if it was so, still it could not be assumed that the petitioner ignored the said recital due to some malafide - It was not a case when the petitioner was not pursuing any remedy and in the opinion of the Bench, as long as the petitioner bonafidely pursued a legal remedy, then even if the said remedy turned down to be abortive later on, the time taken in pursuing that remedy is to be excluded being jurisdictionally deficient as otherwise the results would be anomalous - 23.09.2004 as passed by respondent No.1 being not sustainable and restore the file of the revision application No.195/95/2004-RA to respondent No.1-Joint Secretary (Revision) Government of India, (revisional authority), New Delhi for deciding the application for condonation of delay as well as the revision in accordance with law - Petition allowed: High Court [para 10, 13, 14]
- Petition allowed: PUNJAB AND HARYANA HIGH COURT 2023-TIOL-24-AAAR-GST
Shree Jeet Transport
GST - Applicant sought a ruling as to whether diesel filled free of cost by the service recipient in the engaged chartered (dedicated) vehicles would form part of value of supply of service charged by the Appellant and whether GST would be leviable on value of diesel filled free of cost by the service recipient or otherwise under GTA service.
Held:
Per: Member CGST
Section 15(2)(b) of CGST Act is very clear which stipulates that the value of supply includes any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both - In view of the above, Member CGST finds that any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both is includible in value - Provision in Section 15(2)(b) of the CGST Act, 2017 are different from the provisions of the Service Tax Law - Circular no. 47/21/2018-GST dated 08.06.2018 is inapplicable as the issue therein pertained to capital goods whereas in the present case Diesel which is used for providing the GTA service is a consumable and not capital goods - In the instant case the appellant is aware that there is no input tax credit available on fuel - He is therefore trying to circumvent the GST laws to lessen the GST liability by artificially bifurcating fuel expense and thus not including the same in value of taxable supply - This is clearly not permissible - No reason to differ from the findings of the Authority of Advance Ruling, Chhattisgarh under its order No. STC/AAR/07/2020 Raipur dated 04/01/2021 that diesel to be filled free of cost by the service recipient in the engaged chartered (dedicated) vehicles as per the proposed draft agreement would form part of value of supply of service charged by the appellant and accordingly GST at the applicable rate would also be leviable on the value inclusive of the cost of diesel filled by the service recipient, under GTA service and there is no merit in the appeal. [para 5.7, 5.8, 5.15, 5.18, 5.20, 5.21]
Per: Member SGST
Board Circular 47/27/2018 has clarified that the Moulds and dies provided on FOC basis by the recipient of supply is not consideration - The Board circular has been relied upon by AAR Maharashtra in GST-ARA-19/2018-19/B-80 = 2018-TIOL-306-AAR-GST given in case of Lear Automotive, in this order similar issue of FOC goods supplied by recipient of supply to the supplier as per the terms of the contract was decided - While deciding the issue, AAR Maharashtra had taken on record Australian GST ruling 2001/6 for reasons that the definition of consideration given in section 2(31) of CGST Act, 2017 is identical in Australian GST and AAR, Maharashtra, after examining the issue has held that FOC goods supplied by recipient of supply are not includible in the value of supply. Similar decision has been given by co-ordinate bench of AAAR, Karnataka in case of Nash Industries Ltd. in KAR/AAAR/07/2018-19 = 2019-TIOL-07-AAAR-GST - Therefore, in light of the above, Member SGST view is that the value of diesel which is in the scope of service recipient would not be included in taxable value of supply of the service provider. [para 6.6, 6.7]
Conclusion: In view of the above, issue is not answered and it is deemed that no ruling is issued under Section 101(3) of the CGST/ SGST Act, 2017 because of the divergence of opinion between the two members. [para 7]
- Appeal disposed of: AAAR |
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