TODAY'S CASE (INDIRECT TAX)

January 17, 2025

++ GST - Personal hearing - Mandate of s.75(4) are safeguards provided to the assessees so that they can have a say in the hearing process: HC

++ GST - If in decision making, procedure adopted by the authority is de hors the provisions of the Act or rules framed thereunder, it is liable to be rendered as flawed one: HC

++ GST - There is no bar in law in issuing two show cause notices for the same period with a different/distinct subject matter: HC

++ GST - Fraudulent ITC availment - Petitioner is sought to be arrested after more than 05 years and 06 months  from filing FIR - Anticipatory bail granted: HC

++ GST - It is trite law that when a reply is filed, it is incumbent on the assessing authority to apply its mind to the objections raised and return findings on the issues so raised: HC

++ GST - Impugned order is hit by Section 75(7) insofar as it traverses beyond the Show Cause Notice: HC

++ GST - Timelines stipulated in s.129(3) not followed - Proceedings liable to be set aside - Vehicle to be released forthwith: HC

++ GST - Petitioner challenges order passed  u/s 73  consequent upon extension of limitation as granted by 56/2023-CT - Petitioner is not remediless, hence should take recourse to remedy of appeal: HC

++ GST - Extension of limitation - Petitioner challenges proceedings on the ground that notification parallel to 56/2023-CT has not been issued by State government - This cannot be ground for seeking declaration of notification as ultra vires : HC

January 16, 2025

++ GST - Amount received by Electricity Regulatory Commissions under heads of filing fee, tariff fee, license fee or annual registration fee, are not exigible to tax: HC

++ GST - Commission which is constituted under Electricity Act can't be equated with Central or State Governments: HC

++ GST - Contracts executed in pre-GST regime - State Govt. itself had assured that contractors who have paid GST in the matter of such contracts would be refunded - State authorities should immediately process such claims, within an outer limit of 90 days: HC

++ GST - SCN cannot be issued u/s 74 on 'borrowed satisfaction' -Respondent was required to redo the investigation and come to an independent conclusion and only thereafter a SCN could have been issued: HC

++ GST - Coercive measures for recovery of outstanding demand - Petitioner willing to deposit more than the pre-deposit amount required for filing appeal before Tribunal - Hold on Bank account to be lifted thereafter: HC

++ Cus - Notfn 102/2007-Cus - Refund of SAD - Mere conversion of imported logs into Sawn Timber without loss of identity of the original product would not deprive the importer of the benefit of the exemption notification: HC

++ Misc - CA involved in creating fake invoices and passing ITC of 5.08 crores - Punishment by ICAI of removing name from Register of Members - Petitioner should invoke statutory appeal under CA Act, 1949: HC

++ Property Tax - Order passed by the Appellate Authority is amenable to revisional jurisdiction of the High Court - Petition not maintainable: HC

++ GST - Hospital outsources food for in-patients - Such supply made by applicant is not exempted under entry no.74 of 12/2017-CTR: AAR

++ Inter-state movement of goods from head office to other branch is not an incidence of Annual Maintenance Contract; Such movement amounts to branch transfer transactions not attracting central sales tax: CESTAT

++ Mere existences of pre-existing purchase orders, prior to movement of goods, does not automatically imply that entire movement constitutes inter-state sale, particularly when goods are stock transferred in regular course of business: CESTAT

++ CX - Rejection of CAS-4 certificates submitted by assessee during adjudication on grounds of them being photocopies, is arbitrary & contrary to principles of natural justice: CESTAT

++ Cus - Since the deposit is not a tax, question of department retaining the amount even after assessment is finalised does not arise : CESTAT

++ Cus - Commissioner of Customs not vested with authority to modify EPCG licence issued by DGFT or read additional conditions into it, such as imposing a restriction on year of manufacture: CESTAT

++ CX - As settled by CBIC, cross-utilization of credit from common pool without requiring one-to-one correlation between credit on inputs & output service tax, is permissible: CESTAT

January 15, 2025

++ NDPS - Seizure of 20kg ganja - Ordinarily, no taxi driver, before allowing to board, asks for passenger details - No incriminating material seized from person - Contraband not hidden - Passengers fled from spot - No material to link taxi driver with contraband: SC

++ GST - COVID-19 - Period between 15.03.2020 to 28.02.2022 stood excluded for limitation as per SC order - Issuance of notifications 13/2022-CT, 9/2023-CT, 56/2023-CT may be an exercise in abundant caution - Petitioners may avail statutory remedy of appeal: HC

++ GST - 'Ratification' done after issuance of Notification No.56/2023-CT will not provide life to it - 'Ratification' cannot be a substitute of 'recommendation': HC

++ GST - Solar Power Generating System would not answer the description of immoveable property - Supply of the Solar generating Power Station is a 'composite supply' and it would not amount to a 'works contract': HC

++ GST - Survey in business premises - If excess stock is found, proceedings u/s 73 or 74 of the Act will come into play rather than u/s 130 of the Act r/w Rule 122 of the Rules, 2017: HC

++ ST - Once tax is not payable in law, there was no authority for the department to retain such an amount, therefore, s.11B provisions would not stand attracted: HC

++ VAT - Assessment order passed on estimate basis is upheld where assessee does not maintain accurate records or books of accounts: HC

++ Cus - Delays be dealt with liberally, especially when there is no deliberate attempt to delay filing of refund claims; rejecting refund claims on technical grounds of limitation, is not tenable: CESTAT

++ CX - Assessment order passed without granting personal hearing; assessee's difficulties in participating in adjudication due to COVID pandemic overlooked - case remanded: CESTAT

++ CX - Rejection of assessee's refund claims without issuing a Show cause notice or giving valid reasons for rejecting claims, contravenes principles of natural justice: CESTAT

January 14, 2025

++ GST - ITC is not available on Motor Vehicles purchased for providing taxable output supply of 'Automobile benchmarking service': AAR

++ GST - Slack adjusters used in braking system of 'Buses & Trucks' and in 'Trailers' are classifiable under HSN 8708 9900 @28% under HSN 8716 9010 @18% respectively: AAR

++ GST - Violation of the statutory mandate of notice of personal hearing - Order set aside and matter remitted: HC

++ Cus - Additional duty of customs on HSD oil is subject to exemptions under Customs Act, including those granted under Notification No. 43/2002-Cus: CESTAT

++ CX - appeal to CESTAT is valuable right, being final fact-finding body; CESTAT erred in upholding cryptic, single-paragraph order passed by Commr.(A), while overlooking crucial facts; case remanded for re-consideration: HC

++ CX - In case of factory gate sale even though sale is on FOR basis the freight charges shown/ collected separately in invoice shall not be included in transaction value of excisable goods:CESTAT

++ ST - O-i-A is unsustainable given that Department did not appeal the earlier order dropping substantial demands: CESTAT

++ ST - Service Tax paid on insurance premiums to DICGC is mandatory requirement for assessee to operate & provide taxable banking services; Cenvat credit on tax paid is allowed: CESTAT

++ Cus - Customs Broker not expected to be expert in identifying mis-declaration; cannot be made accountable for verifying documents like IEC, which is presumed to be verified by Customs; charges of contravening CBLR not tenable: CESTAT

++ Cus - Seizure & confiscation of gold is invalid where no evidence, such as foreign markings, exist to show it to have been illicitly imported: CESTAT

January 13, 2025

++ Cus - No coercive measures can be taken against Appellant during the period when the limitation for filing of appeal has not expired - Encashment of the bank guarantee deserves to be restrained: HC

++ GST - Authorities cannot be said to be expert for treating the goods differently than as declared, without any basis - Without drawing samples and seeking a test report, it cannot be said on physical verification that the goods were not R.B oil but mustard oil:HC

++ GST - Registration cannot be cancelled on ground for which petitioner was never put to any notice: HC

++ GST - Assessment essentially has been made against a dead person and, therefore, same cannot be sustained: HC

++ VAT - If there has been increase in the amount of interest by the rectification, petitioner was entitled to a notice for being heard - The concept of aggregate demand remaining same is not supported by the provision: HC

++ ST - Issue is one of taxability - Decision of CESTAT would have to be assailed before Supreme Court: HC

++ Cus - Rejection of declared value invalid, where Department fails to discharge burden of proof of establishing that declared value is incorrect: CESTAT

++ Cus - While any breach of duty is blameworthy & subject to penalties, it is important to distinguish between genuine mistakes & dishonest conduct when imposing fines & penalties: CESTAT

++ Cus - As is settled law, imposition of penalty for failing to meet statutory obligations is matter of discretion, which should be exercised judiciously, considering all relevant circumstances: CESTAT

++ CX - Valuation u/s 4 of CEA 1944 is upheld where transactions are made between assessee & its related party: CESTAT

++ CX - Assessee informed Department about returned goods & reflected same in RG-23A & ER-1; re-processing & re-manufacturing of goods confirmed by Chartered Engineer's certificate; charges of suppression/mis-declaration, not tenable: CESTAT

++ ST - Section 67 explicitly states that only gross amount charged to service recipient be deemed gross value for services provided & be subjected to tax; unbilled amounts do not attract Service Tax levy: CESTAT

++ ST - Payments received from foreign principal as incentives for increasing sales or discounts linked to purchase of goods, are not subject to Service Tax: CESTAT

January 11, 2025

++ CX - Provisions of CCR 2004 are not contravened if capital goods are moved between plants for further manufacturing & where all plants are part of same manufacturing unit: CESTAT

++ Cus - Appropriate classification of goods 'Pran Lassi Drink' imported by appellant is under Chapter Heading 04 and not under Chapter Heading 22, demand of customs duty along with interest and penalty confirmed in impugned order is not sustainable: CESTAT

January 10, 2025

++ GST - Petitioner alleges that order is passed in violation of principles of natural justice - Petitioner directed to deposit 10% of disputed taxes within a period of four weeks - Order set aside and matter remanded: HC

++ GST - Petitioner challenges order stating that it suffers from violation of principles of natural justice inasmuch as their request for extension of time to appear for hearing was not considered - Petitioner to deposit 10% of disputed tax and the matter to be re-adjudicated: HC

++ GST - Petitioner challenges order on ground that notices and orders were uploaded under 'View additional notices and orders' tab on the GST Portal and, therefore, they were unaware of the same - Petitioner to deposit 25% of disputed taxes and matter to be re-adjudicated: HC

++ GST - Pre-GST rate contracts - Amount of GST paid to be refunded by State within an outer limit of ninety days: HC

++ ST - Re-submission of a refund claim is not time-barred, where it is continuation of original claim filed within statutory limitation period of 2 years: CESTAT

++ ST - Rejection of refund claim - Non-issuance of Show Cause Notice is a serious procedural lapse which undermines fairness of the proceedings: CESTAT

++ ST - Mere proof of dispatch of Order-in-Original is insufficient to establish valid service thereof; dismissal of appeal without granting personal hearing contravenes principles of natural justice: CESTAT

++ Cus - Correct classification of Metal Core Printed Circuit Boards (MCPCBs) is under CTH 8534; MCPCBs are distinct from standard PCBs, hence classified separately: CESTAT

++ Cus - Motor Controller and Electric Tricycle Spare Parts are correctly classifiable under CTH 8503 0090 which covers parts to be used with motor, rather than under CTH 8708: CESTAT

January 09, 2025

++ CX - Provisions of Section 35FF clearly mandate payment of interest from date of pre-deposit until its refund, irrespective of whether Assessee has specifically requested it: CESTAT

++ CX - Charges of clandestine clearance cannot be sustained where no evidence exists to prove shortage of raw material or clearance of final goods: CESTAT

++ ST - No Service Tax could be levied on construction of residential complexes prior to 01.07.2010 even when the service is rendered either as service simpliciter or as a works contract: CESTAT

++ ST - Demand raised on assessee's activity of leasing on immovable properties for commercial purposes - case remanded to ascertain whether assessee is performing sovereign functions & thereby exempt from tax payment: CESTAT

++ Cus - Penalty imposed u/s 112(a) is invalid where assessee avails of Amnesty Scheme, satisfies tax payment requirements thereunder & where closure letter is issued by DGFT: CESTAT

January 08, 2025

++ GST - S.169 - Service of order - State is obliged to comply with the Clauses (a) to (c) alternatively and thereafter, comply with Clauses (d) to (f): HC

++ GST - Amended formula for computing unutilised ITC - Notification No.14/2022-CT is applicable retrospectively as the amendment brought in Rule 89(5) is curative and clarificatory in nature - Rectification application for differential refund to be honoured : HC

++ GST - Rule 86A permits putting aside of wrongfully utilized ITC, whether actually available in credit ledger or not, and to await appropriate order of assessment & penalty, if any, either u/s 73/ 74 of GST Act r/w/s 122 of GST Act: HC

++ GST - There is no provision in Section 130 which prohibits the interim release of goods seized, pending adjudication of SCN: HC

++ GST - Non-mention of DIN number and absence of signature of assessing officer would render the assessment order invalid: HC

++ GST - It is unjust to deny benefit of waiver of late fee to any dealer, merely because he had filed belated return prior to issuance of amnesty notification: HC

++ Cus - s.153 - Modes of service - Department ought to, in future, follow a system by which, in addition to sending notices by speed post, registered post or courier, notices are also sent on the email address: HC

++ Cus - Once a refund order is sanctioned & not challenged further, it cannot be treated as erroneous for recovery purposes u/s 28 of Customs Act: HC

++ Cus - Denial of refund on allegation of being based on forged documents, cannot be sustained, where no investigation is conducted to bolster such charges: HC

++ Cus - Re-classification of goods under tariff heading 8708 invalid where not substantiated with proper evidence; burden of proof to justify reclassification lies with Revenue, which was not discharged: CESTAT

++ Cus - As is trite law, if an exemption notification is unambiguous, it should be interpreted in favor of the assessee: CESTAT

January 07, 2025

++ GST - Land allotted by GIDC - When the lessee/assignor transfers the land having leasehold rights and building to the assignee, same cannot be considered as supply of service as it would be a transfer of immovable property: HC

++ GST - Appeal - s.107/Rule 108 -It would be retrograde to opine that online filing, which was complete in all respects, including electronic copy of the order, is not valid filing: HC

++ GST - Assessment order invalid where passed in cryptic, templated manner, giving no reasons for rejecting assessee's reply to Show Cause Notice: HC

++ GST - No discussion on the reply filed, except making a reference in the discussion and findings portion - Order not tenable - Matter remanded: HC

++ Cus - s.28(9) - Placing of the matter in call book and taking it up after several years would not be permissible - Facts do not reveal any glaring impossibility for the Department to deal with the SCN: HC

++ Cus - Bench fails to understand as to how respondent authorities could have disposed of the gold in breach of the interim-order passed - Bench directs respondent to pay market price of the goods in case the petitioner succeeds in appeal or in revision: HC

++ ST - Activity of providing security personnel for certain establishments conducted with profit motive, qualifies as commercial activity; service tax is payable thereon - demand sustained: HC

++ CX - Rule 11(3)(ii) of CCR, 2004 is attracted only if there is an absolute exemption - It cannot be said to be applicable to Notification 30/2004-CE: HC

++ ST - Intention to evade payment of Service Tax cannot be attributed to a municipal corporation performing functions as provided in the Constitution; extended limitation not invokable: CESTAT

++ ST - Interest becomes payable three months after receipt of refund application; date from which interest is payable is not postponed by appellate authorities' order: CESTAT

++ Cus - As is trite law, demurrage charges should not be included in transaction value of imported goods: CESTAT

January 06, 2025

++ GST - Writ courts do not interfere where statutory remedies are available unless there is a clear violation of fundamental rights, lack of jurisdiction, or procedural perversity leading to manifest injustice: HC

++ GST - Petitioner's grievances primarily relate to invocation of extended period of limitation, allegations of misclassification of goods and denial of ITC - Each of these issues necessitates a detailed factual inquiry, which is outside the purview of this Court: HC

++ GST - SCN forms the foundation, thus departure from SCN or if order traverses beyond SCN, it is necessary that the petitioner is put on notice on the basis of which the order was intended to be made: HC

++ GST - Royalty services - Petitioner allowed to take re-credit of the tax paid by them on reverse charge basis since they are not entitled for cash refund u/s 142(3): HC

++ GST - Act of respondent in suspending registration pending enquiry would be too harsh as petitioner would not be in a position to conduct his business: HC

++ GST - Bench allows petition to be withdrawn without making any observation as regards merits or the maintainability of appeal if filed beyond limitation: HC

++ ST - SVLDRS, 2019 - Duplication of demand, therefore, dispute raised can be settled by utilising a deposit made under a different SCN - Appeal dismissed: HC

++ CX - As per trite law, when duty is paid on transaction value & no refund is sought, the Assessee is entitled to avail CENVAT Credit: CESTAT

++ CX - CENVAT credit on Excise duty paid on inputs & Service Tax paid on input services used in manufacturing is allowed, where CA's certificate confirms duty-paid character of final goods: CESTAT

++ Cus - Confiscation of imported Solvent Based Paints (Stock Lot) on grounds of being hazardous waste, is not tenable where importer's request to cross examine CPCB officials is denied, in contravention of rules of natural justice: CESTAT

++ Cus - Department cannot take divergent stand & propose new classification where classification of same product in assessee's own case is already settled: CESTAT

++ ST -Short-payment of tax - Burden of proof of establishing such allegation rests with the Department, but was not discharged; service of SCN via email is invalid - duty demand quashed: CESTAT

January 04, 2025

++ Cus - Challenge to Anti Dumping Duty levied on imported Aluminium Strips; speaking order as mandated u/s 17(5) of Customs Act not passed; re-assessment not supported by cogent evidence - procedural flaws warrant case remand: CESTAT

January 03, 2025

++ CX - Once Revenue has accepted the excise duty paid by assessee on clearance of final products, irrespective of the fact whether activity amounts to manufacture or not, assessee is entitled to CENVAT credit on the 'inputs': HC

++ GST - Procedural irregularities and arbitrary nature of action by respondent in freezing bank account - Statutory provisions on limitation should be interpreted liberally in cases where genuine hardships are demonstrated: HC

++ GST - Template order mentioning that reply is 'not comprehensible, conceivable, not perspicuous and is ambiguous' - Abject non-application of mind: HC

++ GST - Petitioner contends that he was unaware of the notice/order issued since it was uploaded under the tab 'Additional Notices and Orders' instead of 'View notices and orders' - Petitioner entitled to the benefit of doubt - Order set aside - Fresh notice to be issued: HC

++ GST - Act, 2017 does not disentitle or render the petitioner ineligible to apply for registration afresh notwithstanding that its registration was canceled on a previous occasion: HC

++ GST - SCN was uploaded under Additional Notices/Orders tab on the Portal - Petitioner came to know about SCN/Order only when bank account attached - No coercive action during pendency of petition: HC

++ GST - Assessment order invalid where it lacks clarity on whether reply to SCN had been filed; absence of reasoned order contravenes rules of natural justice: HC

++ CST - Inter-State stock transfers for stock replenishment, cannot be deemed to be inter-State sales: CESTAT

++ ST - Merely because the appellant have booked expenses of various professional under one head that is legal and professional charges, same cannot be the reason to demand Service Tax from appellant under Reverse Charge Mechanism: CESTAT

++ CX - Clandestine removal - Allegations based on presumptions alone with no cogent evidence to support such allegations; demands quashed, penalties on directors reduced: CESTAT

++ Cus - Broker seriously contravened CBLR by failing to exercise due diligence, obtain proper authorization & maintain proper records; revocation of broker's license, forfeiture of security deposit & penalty are sustained: CESTAT

January 02, 2025

++ CX - Principles of natural justice do not justify delayed adjudication of matters, when a statutory time limit exists therefor: CESTAT

++ Cus - Confiscation under Section 111(d) of the Customs Act 1962 for failure to obtain an import license is upheld: CESTAT

January 01, 2025

++ GST - Since the petitioner has deposited voluntarily the amount of Rs.40,00,000/-, same would not be covered by the provisions of s.54(1) of the Act - However, no interest is payable: HC

++ GST - Adjudicating Authority has failed to provide any opportunity of hearing to the petitioner though he has prayed for same in the written submissions - Breach of principles of natural justice - Matter remanded: HC

++ GST - Under misbelief that earlier notices have been quashed, fresh SCNs issued - Petitioner is not put to any prejudice - SCNs to be disposed of: HC

++ GST - Bonafide error by petitioner in calculating the period of limitation for filing appeal - Benefit of doubt to be given in interest of justice - Matter remanded: HC

++ CST - Movement of goods from manufacturing unit in Rajasthan to depots in Bihar & Jharkhand, qualifies as stock transfer & not as sale; levy of Central Sales Tax on such movement is invalid: CESTAT

++ CX - Duty demand u/s 11D & equivalent penalty u/s 11AC upheld, where assessee engaged in deliberate misrepresentation, misdeclaration & manipulation of records to avail duty refunds & Cenvat credit; mis-used North East industrial policy to evade Excise duty: CESTAT

++ ST - As whole of the demand confirmed against appellant is beyond normal period of one year, the demand raised by invoking extended period of limitation is not sustainable : CESTAT