|
2023-TIOL-1764-HC-DEL-GST
Grapes Digital Pvt Ltd Vs Pr.Commissioner
GST - In terms of the impugned Order-in-Original, the Adjudicating Authority had allowed the petitioner's claim for the refund of IGST of Rs.24,33,20,306/- but, had adjusted an amount of Rs.5,08,03,767/- on account of interest liability - The interest liability comprised of an amount of Rs.2,26,71,171/-, on account of interest on delayed payment of tax on input supplies on Reverse Charge Method and Rs.2,81,32,596/- as interest on delayed payment of IGST on zero rated supplies - Petitioner inter alia impugns this order - Petitioner claims that its activity of import and export of services is tax neutral and it has no real liability to pay any tax - That, although, the petitioner is liable to pay tax on import of services on RCM, it is entitled to claim refund of the same, either directly, or by availing the Input Tax Credit to pay IGST on its output supplies and claim refund of the IGST - In either of the two options, its net liability to pay goods and services tax is nil, therefore, the petitioner submits that the adjustment of interest on its tax liability against its claim for refund, is erroneous.
Held: In the present case, the adjudicating officer has adjudicated the interest payable and there is no dispute as to the material facts on the basis of which said interest is calculated - In these circumstances, the principles of natural justice are satisfied and there was no requirement for the Adjudicating Authority to issue any further notice - The petitioner has also availed of remedy of an appeal under Section 107 of the CGST Act - In view of the above, Bench finds no infirmity with the process of adjusting interest as payable on the admitted tax against the amount refundable to a taxpayer - The contention that the petitioner would be entitled to refund of ITC paid on RCM for discharging its liability and therefore no interest is payable is, plainly, unmerited - The levy of GST is a statutory exaction and so is interest payable on such tax - If the same is not discharged within the period of time as prescribed, in terms of Section 50 of the CGST Act, an assessee is required to pay interest at the rate of not exceeding 18% as may be notified by the Central Government or recommended by the GST Council - The interest on delayed payment of tax being a statutory levy cannot be avoided on the ground that the petitioner at a subsequent stage is entitled to a refund of the ITC - The assumption that since the transaction of imports and exports is revenue neutral, the same would absolve the petitioner from payment of GST or any interest thereon is contrary to law - It is not open for the assessee to plead that since the supply imported was required to be exported, the petitioner was absolved from the statutory levy under the IGST Act - Refund of unutilized ITC or GST is available only in terms of the relevant statutory provisions - A claim for refund of tax collected in accordance with law is a statutory right and is circumscribed by the statutory provisions - There is little scope for imputing principles of equity in matters of tax, which are covered by the statutory provisions - There is no merit in the contention that the petitioner is not liable to pay interest on the delayed deposit of GST on input supplies on RCM method - Bench directs that the refund sanctioned by the Adjudicating Authority in terms of the Order-in-Original dated 08.08.2019 be disbursed to the petitioner along with applicable interest -The petitioner's claim that the adjustment of interest amounting to Rs. 5,08,03,767/- is illegal is rejected: High Court [para 41, 42, 46, 51, 66, 67]
GST - Appeal - No allowance can be made for extending the period of limitation on account of miscommunication of orders intra-departmentally - Thus, the expression 'communication of the decision or order' as used in Sub-section (2) of Section 107 of the CGST Act, in the context of intra-departmental communication must be construed as the date of issue of the order - Revenue's appeal against the Order-in-Original dated 24.10.2018, was beyond the period of limitation as prescribed and was liable to be rejected on this ground: High Court [para 24, 25]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1763-HC-DEL-GST
BSES Rajdhani Power Ltd Vs UoI
GST - Petitioner seeks quashing and setting aside the clarification issued in para 4(1) of the Circular No. 34/8/2018-GST dated 01.03.2018 - It is stated by the petitioners that in terms of the notification 12/2017-CTR, the petitioners being electricity distribution utilities, were neither collecting GST from its customers for the supplies nor depositing the same with the GST authorities - However, the said Circular clarifies that certain charges collected by the petitioners are not covered under the notification No.12/2017-Central Tax (Rate) dated 28.06.2017 - It is further contended that charges for metering equipment, testing fee for meter, labour charges from customers for shifting of meters, charges for bills and application for releasing connection of electricity are all integral part of services of distribution of electricity - Petitioner relies on the decision of the Division Bench of the Gujarat High Court in Torrent Power Ltd. = 2019-TIOL-419-HC-AHM-GST ; wherein the High Court struck down the impugned circular being ultra-vires to Section 8 of the CGST Act. Held: Bench concurs with the decision of the Gujarat High Court - Since the impugned circular has been set aside and it is clarified that the supplies mentioned in the impugned circular are bundled supplies and form an integral part of the supplies of distribution of electricity, the said supplies are not chargeable to GST - Consequently, the petitioners are also not entitled to collect such charges from their customers - In this view, Bench considers it apposite to direct that any GST collected by the petitioners after 08.11.2023 [date of earlier Court order], be refunded to customers from whom the said GST has been collected - Petition disposed of: High Court [para 10, 17]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1762-HC-RAJ-GST
Raj Kamal Cargo Movers Vs Asstt. Commissioner
GST - Petitioner seeks a direction to the respondent to issue the refund forthwith - Petitioner had filed appeals against orders dated 30/3/2021 & 28/5/2021 and the same were set aside and the amount of demand recovered from the petitioner of Rs.34,88,354/- was ordered to be refunded - Respondent no.1, by order impugned dated 21/2/2023, ordered that in the interest of State before allowing the refund, bank guarantee in the form of solvent security needs to be taken and required the petitioner to furnish the bank guarantee - The petitioner contested the said requirement of furnishing the bank guarantee, however, the refund was not made - Feeling aggrieved, the present petition. Held : It appears that the respondent no.1, who had passed the original order, which came to be set aside by the appellate authority and ordered for refund so made, has been trying to somehow block the refund to be made to the petitioner - The solvent security is that of a person who is entitled to/recipient of the amount - Whereas, the 'bank guarantee' is a guarantee given by the bank on behalf of the applicant to cover the payment obligation to a third party - As such, it cannot be said that the demand of bank guarantee by respondent no.1 could be equated with providing solvent security in terms of the order passed under Section 54 (11) of the Act, 2017 - Action of respondent no.1 in seeking bank guarantee from the petitioner is ex facie contrary to the directions of respondent no.2 and, therefore, the same cannot be sustained - Petition is allowed - Refund to be granted within a period of two weeks: High Court [para 16, 17, 18]
- Petition allowed: RAJASTHAN HIGH COURT
2023-TIOL-1761-HC-DEL-GST
R K Metal Industries Vs CGST
GST - Section 29 of the Act, 2017 - Petitioner impugns an order whereby the petitioner's GST registration was cancelled with retrospective effect from 01.07.2017 - SCN proposed to cancel the petitioner's GST registration on the ground that the petitioner had not filed returns for a continuous period of six months - The petitioner responded to the SCN stating that the firm was closed in September, 2018 due to a sealing drive conducted by the East Delhi Municipal Corporation - The petitioner further stated that an attempt was made to surrender the petitioner's GST registration but the system was showing an error message. Held: Discretion to cancel the registration with retrospective effect cannot be exercised arbitrarily - In the present case, the only reason for proposing to cancel the petitioner's GST registration was that the petitioner had not filed the returns for a continuous period of six months - However, the registration has also been cancelled for a period during which the petitioner had filed the GST returns - As noted, the impugned order provides no reason whatsoever for cancelling the petitioner's GST registration much less the reason for doing so with retrospective effect - Bench directs that the petitioner's GST registration be cancelled from September, 2018 - Petition is allowed: High Court [para 5, 6]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1760-HC-DEL-GST
Cuthbert Winner LLP Vs Asstt. CCGST
GST - Petitioner is essentially aggrieved by the cancellation of its GST registration - In terms of the SCN dated 02.06.2023, the Proper Officer had proposed to cancel the petitioner's registration on the ground that it was found to be non-existent at its registered address. Held: It is material to note that prior to the issuance of SCN, the petitioner had made an application dated 08.04.2023 to reflect the change of its principal place of business in the GST records - According to the petitioner, since it had already changed the principal place of business on 08.04.2023, it was not functioning from the said premises that were visited by the officials on 25.04.2023 - The order dated 25.07.2023 cancelling the petitioner's GST registration is founded on the premise that the petitioner was non-existent at its principal place of business - Bench considers it apposite to direct that the concerned officer shall decide the petitioner's application for revocation of the cancellation order after examining all aspects as to whether the petitioner was existent at its principal place of business at the material time - Proper Officer to conclude proceedings within a period of six weeks: High Court [para 6, 8, 14, 15]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1759-HC-MUM-GST Ahmed Enterprises Vs UoI
GST - Petitioner seeks restoration of their registration - It is submitted that the show cause notice for cancellation of registration was not received by the petitioner, as he was not in Mumbai - Eventually an order dated 1st November 2022 came to be passed by the designated officer by which, the registration of the petitioner was cancelled - appeal has been rejected by the impugned order dated 23rd August 2023 on the ground that the appeal was filed beyond the prescribed period of limitation as provided under Section 107(4) of the CGST Act. Held: In identical circumstances when similar show cause notice was issued without setting out any reasons, as also an order passed without application of mind, this Court had set aside the orders passed by the respondent in the decisions [ Makersburry India Pvt. Ltd. = 2023-TIOL-1578-HC-MUM-GST ] as relied on behalf of the petitioner and - The Court had quashed and set aside the show cause notices, however, remanding the proceedings for a fresh show cause notice to be issued in accordance with law by the designated officer - Order cancelling registration of the petitioner is quashed and set aside, status-quo ante is to be restored - The respondents are directed to issue a fresh show cause notice in accordance with law within a period of three weeks and petitioner to reply within two weeks, thereafter, designated officer to hear the petitioner and pass appropriate orders - Petition is disposed of: High Court [para 7, 9, 10]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-1758-HC-ALL-CUS
Global International Vs UoI
Cus - Petitioner seeks a suitable direction to M/s Container Corporation of India Limited to immediately release the goods without charging any demurrage or rent charges; a direction to the respondent to not take any coercive action of sale or E-auction of the goods of the petitioner lying with them - Commissioner(A) allowed the appeal of petitioner by order dated 23.5.2019 while observing that there is no reason for rejection of transaction value as declared by the petitioner - That since the goods in question were detained by the custom authorities and which was beyond his control, the goods could not be cleared and, therefore, the authorities cannot legally charge any demurrage upon the petitioner. Held: Issue in hand is not res judicata and the same has already been decided by the Division Bench of this Court in the case of M/s Continental Carbon India Ltd. [ 2016-TIOL-1163-HC-ALL-CUS ] - Court was of the opinion that the respondent was not entitled to charge any demurrage charge on the goods so detained by the custom authorities - Petitioner is granted relief to the extent that it would be open for the petitioner to clear off the goods without payment of demurrage charges subject to payment of other charges subsequent to the period of 17.9.2020 till the date of actual clearing off the goods in question - Petition disposed of: High Court [para 10, 11, 15]
- Petition disposed of: ALLAHABAD HIGH COURT
2023-TIOL-1757-HC-MUM-CUS
Sinochem India Company Pvt Ltd Vs UoI
Cus - Petitioner, inter alia, seeks a direction to the Respondent No.2 to issue appropriate order and/or direction and/or detention waiver certificate to the Respondent No.3; to direct the Respondent No.2 to reimburse/refund the detention charges amounting to Rs.46,96,695/- paid by the petitioner to Respondent No.3 forthwith, along with interest thereon @ 18% p.a. Held : Only issue which falls for consideration is whether in the facts of the present case, Respondent No.2 was justified in not issuing detention waiver certificate - The contention of respondent nos.1 & 2 is that on account of mis-declaration of value of goods, the entries found in the bill of entry are not correct, and therefore, the waiver certificate could not be issued - The petitioner vide letter dated 15th February 2021, explained the difference between the price mentioned in supplier's invoice and manufacturer's invoice on the ground that it is due to export incentive received from the supplier - The petitioner also enclosed comparative chart of the suppliers costing chart with export incentive and local price from supplier without incentives in support of its contention and also uploaded clarification letter in that regard - Respondent nos.1 & 2 have not rebutted the same, therefore, respondent nos.1 & 2 cannot contend that the entries in bill of entries are found to be incorrect - The petitioner has filed the documents in support of its explanation which has not been rebutted by the respondents, and therefore reliance placed by the respondent nos.1 & 2 on Section 46(4A) of the Customs Act is not appropriate to deny the issuance of detention waiver certificate - The petitioner on 13th January 2021 sought such permission and which was immediately granted but the same could have been done when the goods were detained for investigation - The petitioner is, therefore, entitled to detention waiver certificate up to the period 13th January 2021 - Respondent nos.1 & 2 to issue detention waiver certificate with respect to Bill of Entry dated 15th February 2021 within a period of four weeks : High Court [para 14, 15, 21, 24]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-1756-HC-DEL-CUS
S K Overseas Vs UoI
Cus - Petitioner impugns an order dated 02.12.2023 passed by respondent no.6 directing provisional release of the goods on the condition that the petitioner furnish a bond equivalent to the value of seized goods, Rs. 2,62,05,685/- and on making a security deposit of Rs. 3,14,46,822/- being 120% of the said value. Held: A plain reading of the impugned order indicates that the said conditions were imposed in the light of paragraph 2.1 and 2.2 of the impugned Circular No.35/2017-Cus dated 16.08.2017; that paragraph 2 of the impugned Circular, to the extent it curtails the decision of the adjudicating authority has been set aside by an order in W.P.(C)15729/2023 captioned M/s Shanus Impex v. Union of India and Ors . [ 2023-TIOL-1750-HC-DEL-CUS ] - Since the impugned order has been passed on the basis of paragraph 2 of the impugned Circular, the same is liable to be set aside - Present petition is allowed - The impugned order is set aside and the matter is remanded to respondent no.6 to decide afresh and the petitioner's application for provisional release of the goods is restored before respondent no.6 - Order to be passed within four working days as the goods are perishable: High Court [para 5, 6, 8, 9]
- Petition allowed: DELHI HIGH COURT |
|
