TODAY'S CASE (INDIRECT TAX)

August 31, 2021

++ Hostel not a 'residential dwelling' - Hostel fees charged per  student per day is much less than Rs.1000/- - services are exempt under Sr. no. 14 of 12/2017-CTR: AAR

++ Cus - Tribunal completely erred in ignoring the true import and misread the binding decision of this court - Complete non-application of mind - Matter remanded: HC

August 30, 2021

++ VAT - Department is precluded from invoking Sec 9(2) of DVAT to deny ITC to purchasing dealer who bona-fide entered into purchase transaction with registered selling dealer: HC

++ CX - There is nothing in SVLDRS which empowers respondent to refuse issuance of discharge certificate on the basis of any subsequent event, apart from the fact of discovery of false statement: HC

August 28, 2021

++ GST - Liaison office  to assist the  World Economic Forum  to undertake Fourth Industrial Revolution activities in India, is not undertaking any 'business' - no supply, therefore, no need for registration: AAR

++ Supply of non-AC buses for transportation of company staff - supply is a rent-a-cab service - chargeable to tax @ 5%/12% depending upon non-availment/availment of ITC: AAR

++ Applicant is only a conduit - Reimbursement by Industry Partner to the applicant of stipend paid to students does not attract GST: AAR

++ Complaint filed for Non-payment - Availment of ITC would indicate that the goods were supplied by complainant and received by applicant - no case made out for pre-arrest protection: HC 

August 27, 2021

++ VAT - High Court while setting aside show cause notice & penalty, should keep option to competent authority open to issue fresh show cause in conformity with provisions of Act & Rules: SC

++ ST - Computation of interest - Petitioner is at liberty to approach Settlement Commission for clarification or for rectification - adjudication cannot be done by High Court in a writ proceeding: HC

++ Cus - Court, in exercise of its extraordinary jurisdiction, cannot enter into a roving inquiry on the basis of conflicting test reports to decide the validity of a seizure memo: HC

++ ST - Ground that  CA cannot give consultancy for export since he is not permitted to do so under CA Act, 1949; that this was professional misconduct on his part and, therefore, tax paid cannot be granted as rebate is traveling beyond the scope of SCN: CESTAT

++ Cus - Though ownership of gold is proved, appellant cannot be held eligible to bring the gold from abroad as per Notification No. 12/2012-Cus : CESTAT

August 26, 2021

++ NDPS - Substantive evidence exists against the petitioner dehors the statement u/s 67 in the form of CCTV footages - Trafficking of commercial quantity of contraband - no bail: HC

++ GST - Tissue paper attracts GST@18%: AAR

++ GST - Applicant, being recipient of SS cans, cannot seek advance ruling in respect of classification of the said cans: AAR

++ Sharkarai Varatty is classifiable under CTH 2008 1940 and attracts GST @12%: AAR

++ Halwa is classifiable under CTH 2106 9099 and attracts GST @5%: AAR

++ GST - Wet land given on lease for fish/crab farming by grama panchayath - lease rent is exempted: AAR

++ GST - Petitioner has not been held guilty of violation of the Act, 2017 and NAPA has no objection if Petitioner is deleted from array of parties - no  locus standi  to invoke writ jurisdiction: HC

August 25, 2021

++ ST - Cenvat credit is allowed in respect of Pest Control Charges, being similar to Cleaning Services & which are necessary to keep business premises safe & clean: CESTAT

++ ST - Refund of Swachh Bharat Cess & Krishi Kalyan Cess is allowed where such cesses were paid as part of service tax paid for inputs used in or in relation to export of goods: CESTAT

++ CX - Cenvat credit - Penalty is not imposable where assessee regularly files returns & where relevant issue involved is open to multiple interpretations & where no mala fide intent on part of assessee is established: CESTAT

++ CX - Appellate Authority is a creature under the statute & hence statutory mandates require strict compliance - Appeal rightly dismissed by CIT(A) on limitation where it is filed beyond condonable period: CESTAT

++ Cus - Handheld Blenders & Handheld Mixers are two different products & have different specifications, mechanisms, performance, speed, power & perform different functions - Both products do not require BIS compliance - Seized goods to be released: CESTAT

August 24, 2021

++ ST - Non-cooperation, no full and true disclosure of duty liability - Findings of Settlement Commission are candid and convincing - no infirmity or perversity: HC

++ Cus - Question having a relation to the rate of duty or to the value of goods for the purposes of assessment, appeal will not lie before the High Court: HC

++ GST - 'Battery powered electric vehicle' when supplied with or without battery pack is an 'electrically operated vehicle' and is taxable @5%GST: AAR

++ VAT - High Court is not obligated to entertain a writ petition against SCNs issued to assessee, where the assessee does not avail the statutory remedies to defend its case & appears to be seeking to prolong the matter: HC

August 23, 2021

++ Cus - Remedy before Tribunal is not only effective but efficacious - There is absolutely no justification on the part of respondent to bypass appeal remedy: HC

++ Cus - A feeble request for cross examination is obviously a plea to protract and delay the proceedings moreso since the witnesses have not retracted their statements and the penalty imposed on them were not challenged: HC

++ Khaman Flour, Dalwada Flour, Dahiwada Flour, Dhokla Flour are classifiable under HSN 2106 and attract GST @18%: AAR

++ GST - Construction of a new administrative building - ITC available on  locker cabinet and Generator but not on Central Air conditioning plant,  rooftop solar plant, lifts, fire safety extinguishers and Architect services: AAR

++ GST - Subsidy portion provided by Govt. shall not be included in the value of supply: AAR

++ GST - In the GST regime, every limb of supply with/between a supplier and receiver is to be considered as a supply - sale-in-transit is also a supply: AAR

August 21, 2021

++ GST - Incentive by govt. is  linked to amount of loan disbursed so as to make  'Atma Nirbhar Gujarat Sahay Yojna' a success - Such incentive pocketed by applicant cannot be equated as subsidy as it does not reduce interest burden on customers; is liable to tax: AAR

++ GST - Supply of manpower services like Drivers, peons, housekeeping, data entry operators and other clerical staff to Govt. Depts. attracts 18% tax: AAR

++ GST - Vouchers are taxable as 'goods' and attract tax @18%: AAR

++ GST - As 'land' stands excluded from 'Plant and Machinery', the services availed and utilized for acquiring such land on lease is restricted u/s 17(5)(d): AAR

++ GST - Bus Body building on chassis supplied by customer is a 'service'; classifiable under SAC 998881 and attracts tax @18%: AAR

August 20, 2021

++ GST - Nominal amount recovered from employees and paid to canteen service provider is not leviable to tax: AAR

++ Cus - Appellate authority is final fact finding authority - Importance attached to appellate remedy at no circumstances be undermined: HC

++ GST - Except under two exceptions for want of jurisdiction and violation of principles of natural justice, writ petitions are not entertained without exhausting appeal remedy: HC

++ VAT - Sec 40(2) applies to case of dealer who is not registered under provisions of KVAT Act and fails to pay taxes or has evaded payment of such tax attracting punishment u/s 79: HC

++ ST - Conducting quiz competition for employees is a recreational activity - Tax paid on such services is not CENVATable: CESTAT

++ ST - Delay in debiting the CENVAT account will not defeat the substantial right of refund of the claimant : CESTAT

++ Cus - The notice having been issued beyond the prescribed period which is itself irregular and therefore, penalty imposed on appellant cannot be sustained : CESTAT

++ GST - ITC of tax paid on canteen facility is blocked credit - no relevance of judgments pertaining to service tax era - ruling is to be given within the confines of GST Act: AAR

August 19, 2021

++ ST - SVLDRS, 2019 - An order to be valid must speak for itself and contain reasoning for the conclusions arrived at - Impugned order is clearly deficient in this regard: HC

++ NDPS - Petitioner, being a citizen of Nepal, has no roots in society and can be considered a potential flight-risk - no bail: HC

++ Cus - Evasion of duty on HSD and the sludge oil does not appear to be of substantial amounts for which bank guarantee of Rs. 35 lakhs can be said to be insufficient: HC

++ Cus - Refund - Law declared by the Supreme Court, unless made prospective in operation in its judgment, is always deemed to be the law of the land: HC

++ Cus - Demand u/s 28 in respect of goods which have not yet been cleared for home consumption is premature and cannot be sustained: CESTAT

++ Cus - CBLR, 2013 is a self-contained set of regulations which provides for penalties for not fulfilling obligations - no penalty imposable u/s 112 on Customs Broker: CESTAT

August 18, 2021

++ CX - Crown debt would not take precedence over a secured liability - Passage of time may result in satisfaction of everybody's claim: SC

++ CX - It is the original date of creation of security which is of relevance - Bank cannot be prevented from exercising its rights as a secured creditor on the pretext that there is a debt to department: SC

++ CX - Even if the Captive Power Plant (CPP) is located away from the factory of the manufacturer of final product, CENVAT credit is admissible on the capital goods purchased and utilised for such CPP: SC

++ GST - Service of borewell drilling is not Support service for agriculture as it would not be possible for tax administration to identify whether driller is exclusively undertaking agricultural drilling only thereby leading to tax evasion: AAAR

++ Cus - Petitioner was not diligent in asserting its rights and pursuing its cause - Delay is quite gross which would disentitle the petitioner to any equitable and discretionary reliefs: HC

++ GST - Proceedings u/s 73 having been taken to its logical conclusion, the purpose for which the order of provisional attachment had been made has also ceased to survive: HC

++ GST - Quashing of repeated summons - Petitioner submits that all records in their possession have been furnished; that no hearing is required - Respondent to conclude pending proceedings: HC

++ GST - In view of the provisions of S.83(2), provisional attachment orders of bank accounts had expired by operation of the statute itself, therefore, Bench is not persuaded to interfere: HC

++ GST - Juzi - Eat fruits, Stay happy - Sealed fruit bowl containing only cut fresh fruits liable to tax @ 5%: AAR

++ GST - Guitar Head Books purchased from Amazon Inc.-USA and supplied to customers located outside India, without bringing into India do not attract any GST: AAR

++ GST - Customer does not have choice of dry fruits or nuts in fruit bowl - supply is a 'mixed' supply - Tax rate as per section 8: AAR

August 17, 2021

++ Issue of SCN and proposal of detention - Window-dressing used to cover-up massive delay: HC

++ ST - 'Building blocks' of taxable event are conspicuously absent - Notices appear to stand as the ;non-sense on the stilts': HC

++ Detention order - Grounds lifted from an altogether distinct case - blatant copy-paste demonstrates clear non-application of mind: HC

++ VAT - Theoretical semantics - Entire amount of input would not figure in the finished product - seeking reversal of ITC on invisible loss is incorrect: HC

++ CX - Writ Petitions are filed with a view to avoid pre-deposits to be made in statutory appeals - Preferring an appeal is the rule: HC

++ COFEPOSA - Detaining Authority had prior interaction with petitioner's case - Dual role in passing Detention Order goes to the root of the matter and defeats very purpose of appointing a 'specially empowered' officer: HC

++ ST - Contention that Writ Court shall not interfere at the stage of SCN cannot be countenanced as a Thumb Rule: HC

August 16, 2021

++ GST - Attachment of bank accounts and cancellation of registration - strict compliance is required as per the Act and Rules - Order stayed till the next date of hearing: HC

++ GST - Since conditions imposed by Court while granting anticipatory bail have not been complied with, bail petitions stand dismissed - Revenue is at liberty to proceed against respondents: HC

++ GST - Jackfruit Chips and Banana Chips, Sharkara Varatty,  Roasted, salted, roasted & salted Cashew nuts/ground nuts,  Salted and masala chips of Potato and Tapioca are not 'Namkeens'; attract GST @12%: AAR

++ GST - Cost of diesel incurred for running DG Set in the course of providing DG Rental Service is nothing but additional consideration - attracts GST @18%: AAR

++ GST - Services of repairs, maintenance, renovation and alterations of residential complex meant for use of Railway employees attract tax @12%: AAR

++ GST - Educational courses conducted by  Indian Institute of Infrastructure and Construction are exempted: AAR

++ GST - Tapioca, Chembu and Pavakka chips are not 'Namkeens'; attract GST @12%: AAR

++ Cus - An order of remand should be unconditional or qualified: HC

August 14, 2021

++ ST - Renting of Immovable Property Service - Duty demand raised merits being upheld where SCN is issued to assessee within 18 months from relevant date & hence is within limitation: CESTAT

++ ST - Reverse charge - Refund of service tax - Assessee eligible for refund as no assessment or adjudication order was passed in determining tax liability payable by assessee under erstwhile statute: CESTAT

++ Seizure of 547.5 Gm of Gold jewellery from airport passenger, is not sustainable, where any provisions of Customs Act r/w Foreign Trade Policy are not contravened & where explanation for source of such jewellery is not faulted: CESTAT

August 13, 2021

++ GST - TN Labour Welfare Board is not a 'Local authority' - Is liable to pay tax on Rental income under forward charge: AAR

August 12, 2021

++ CX - SVLDRS, 2019 -  'Redemption fine' would always remain a 'Penalty' in absence of any express exclusion - CBIC  communication dated 20.12.2019 providing for payment of 'RF' in addition to the settlement amount paid u/s 124  is clearly contrary to the Scheme: HC

++ CX - Appeal filed by aggrieved persons have to be decided on merits in all circumstances: HC

++ Cus - Revision order passed by officer of same rank as Commissioner(A) whose order was challenged u/s 129DD - Revenue informs that revisionary authority has been reconstituted, hence order quashed and matter remitted for fresh consideration: HC

++ Cus - Once remedy provided under the statute is efficacious and capable of dealing with various circumstances including violation of principles of natural justice, then there is no ground for entertaining a writ petition: HC

++ GST - Issue raised is in the process of adjudication - Intermittent intervention by the High Courts are not desirable: HC

++ GST - Claim for ITC has been denied by simply stating that taxpayer has claimed ITC using fake invoices - Impugned order hardly meets the standards to be followed in the framing of reasoned, speaking order: HC

August 11, 2021

++ COVID aftermath - Relationship between shipping lines and their customers was expressly contractual in nature - Powers exercisable under the Disaster Management Act could not, therefore, be so exercised as to restrain collection of penal charges, by the shipping lines: HC

++ Pandemic lockdown - It is not possible for the Court to accede to the petitioners' request to direct waiver or remission of the penal charges, levied by ICDs and CFSs for continuing to store imported or exported goods beyond the permissible 'free period': HC

++ GST - Notwithstanding the statutory remedy, Court is not precluded from interfering where, ex facie , it forms an opinion that the order is bad in law: HC

++ GST -   'Britannia Winkin' Cow Thick Shake' is a beverage containing milk, classifiable under CTH 2202  and not under CTH 0402/0404: AAAR

++ GST -  Potable water is never to be equated to 'purified water' - covered under Entry no. 99 of 2/2017-CT (R) & is exempted: AAAR

++ GST - NIT, Tiruchirappalli is a government entity liable to deduct tax at source u/s 51 of the Act, 2017: AAR

++ GST - Dosai Mix, Idli Mix, Tiffin Mixes, Health Mixes, Porridge Mixes are food preparations classifiable under CTH 2106 and attract GST @18%: AAR

++ High Court is not obligated to entertain a writ petition where the petitioner-assessee has not availed the appellate remedy available : HC

August 10, 2021

++ Recalcitrant attitude of govt. - If there is some element of loss being caused by the inability of the judicial institution to take up matters, this is a direct consequence of there being inadequate number of Judges: SC

++ GST - Arrest -  S.69 and s.132 operate in totally different fields - Contention that unless and until adjudication proceedings determining tax and penalty is completed, the Commissioner cannot form any opinion of 'reason to believe' is contrary to the scheme of the Act: HC

++ GST - Recovered, reusable water obtained by the process of reverse osmosis of 'raw effluent' is  water, which is partly demineralised in nature and attracts GST @18% under CTH 2201: AAR

++ Service Matter - Interim Order of Supreme Court in Rojer Matthew also applicable to appointments made on 22.01.2020: HC

++ GST - Section 74(5) gives a choice to the taxpayer to make any payment but it does not confer any power on respondents to make a demand as if there has been a determination of liability: HC

++ GST - No tax demand can be issued or raised when investigation is in progress - No advisory jurisdiction is conferred on the respondents to issue any 'advises' to make payments: HC

++ COFEPOSA - Entire exercise of passing detention orders is mechanical, as grounds have been lifted from an altogether distinct case - Such a blatant copy-paste by Detaining Authority demonstrates a clear non-application of mind: HC

++ GST - Authority cannot admit the application seeking an advance ruling since the question raised is pending in a proceeding under the Act, 2017: AAR

++ GST - Pure services, of operation of water pump and safeguarding pumping machinery at various Pump Houses, provided to Directorate of Public Health Engineering , Govt. of WB is exempt: AAR

August 09, 2021

++ ST - SVLDRS, 2019 - Mechanical rejection of application without application of mind - Board Circular 1074 not taken cognisance - CBIC should take a decision whether benefit available: HC

++ Great Lawyers and Great Judges have contributed for the march of law in our great Nation -Indian Constitution is not a mere law, it is a visionary document: HC

++ Rights and duties are inseparable - Recent trend is to claim right alone and forget duties - Such a mindset can never be encouraged: HC

++ Crores of poor and middle class people purchasing half litre for their low end two wheelers are not choosing to file cases seeking exemptions - However, rich, affluent persons import ROLLS ROYCE GHOST and file petition without showing their identity and seek injunction forbearing respondents from demanding Entry Tax: HC

++ Obiter dicta - When the duties are reminded upon to citizen, they cannot make a complaint that Court has exceeded its jurisdiction: HC

++ Every citizen is entitled to claim his right - However, while dealing with the rights of the citizen, Constitutional Courts are bound to remind the duties of the citizen: HC

++ GST - Marine diesel engine and parts thereof will attract GST @5% only when used in the manufacture of goods falling under 8901, 8902, 8904, 8905, 8906, 8907 and supplied only to ship building companies/shipyards or Indian Navy: AAR

++ GST - Works contract services received, being Plant & Machinery, the tax raised under Invoice is eligible as credit: AAR

++ GST - Ruling can be sought by recipient of a supply, who are made liable to pay tax u/s 9(3) only with regard to determination of their liability to pay or not: AAR

++ GST - Recipients liable to pay tax u/s 9(3) cannot seek ruling on the applicability of an exemption notification/preferential rates on such supplies received by them: AAR

++ VAT - Imposition of penalty for failure to submit declaration in Form 8FA is sustainable where the statute makes an attempt to evade payment of tax as penal: HC

August 07, 2021

++ GST - Test of commercial identity and not the functionality test is relevant - Air Springs are correctly classifiable under CTH 8708 and not under CTH 4016 - attracts GST @28%: AAAR

++ GST - s.83 - Provisional attachment cannot be ordered without fulfilment of the condition(s) precedent: HC

++ GST - Alleged fraud - To empower a Commissioner to order provisional attachment on account of presence of vitiating circumstances, the statute itself ought to have provided so: HC

++ GST - No two classifications can be adopted for a single activity based on end use or where it is rendered etc.: AAAR

++ GST - Appellant has already classified supply of bore-well drilling under 9954 for the purpose of paying tax - It, therefore, defies logic as well as law that the same activity if done on agricultural land will be classifiable under a different heading 9986: AAAR

August 06, 2021

++ Cus - Adjudication of facts is required - Petitioners have not exhausted the remedy available before the Appellate Tribunal, which is competent to deal with all the grounds raised: HC

++ GST - Refund of IGST - Sitting over claims - Bench directs original Authority to decide refund applications within a period of six weeks: HC

August 05, 2021

++ Cus - 'Ship to' and 'bill to' recognised under GST - Commercial compulsions dictate that transactions are to be structured in most economical and least cumbersome manner - Exports eligible for Duty Credit scrip under MEIS: HC

++ Cus - When the export license was granted pursuant to the declaration and agreement, petitioner is bound to fulfil the same - High Court cannot dilute or grant any relief with reference to the agreed export obligations: HC

++ GST - Section 6(2)(b) - Subject matter should be one and the same - If the summons are kept in abeyance, it would paralyze the entire proceedings and cause prejudice to the interest of the Revenue: HC

++ High Courts can intervene at SCN stage if only such notice is issued by an incompetent authority, has no jurisdiction or if an allegation of mala fide is levelled: HC

August 04, 2021

++ CX - Onus rests with assessee for proper substantiation of facts pertaining to availment of Cenvat credit in respect of relevant services - Denial of Cenvat credit is upheld where assessee fails to discharge such onus: CESTAT

++ Cus - Misuse of EPCG license scheme - Penalty imposed on assessees & confiscation of export goods is unsustainable where value of goods is held to be overvalued, based solely on job work invoice & where assessees endorse shipping bills for the first time using such EPCG license : CESTAT

August 03, 2021

++ Cus - Cannoned - There has to be finality once the law is laid down by a judgment of Apex Court - SCN is not issued by 'the proper officer' - proceedings set aside: HC

++ ST - Re-credit of amount which was not required to be reversed -  Only when reversal/adjustment is made u/r 6(3A) of CCR, the time-limit as prescribed thereunder would apply: CESTAT

++ Cus - Delayed disbursal of refund of Rs.36 crores - No interim order in the appeal filed by the respondents and, therefore, the petitioner is entitled for interest: HC

++ GST - For one tax period and for one dispute, there can only be a single adjudication order - multiple orders passed for overlapping periods - Respondent Revenue admits mistake - Orders quashed and set aside and matter remitted: HC

++ Cus - Decision in Canon India case is not related to the conferment of powers by the Board u/s 4(1) and 5 of the Act - Appointment of proper officer by the Board is not improper: HC

++ Cus -  High Court cannot adjudicate disputed facts with reference to documents and evidences to be produced by respective parties - Writ petition, against a show cause notice, is not entertainable in a routine manner: HC

August 02, 2021

++ Waters (plural) - Tertiary Treated Water (non-potable) obtained by treatment of sewage water is purified water, covered under Entry 24, Schedule III of 1/2017-CTR; attracts GST @18%: AAR

++ Cus - Notification 52/2003-Cus - Installation of machinery within a specific period - Amending notification 34/2015-Cus is to be considered retrospective: HC

++ GST - No E-way bill - Considering that  petitioner wants to start a business of providing ambulance service, it would not be appropriate to allow further detention - vehicles to be released upon furnishing BG/bond: HC 

++ Benefit of exemption provided by way of Notification issued in exercise of powers u/s 10 of Kerala General Sales Tax Act, cannot be denied retrospectively to poultry farms: HC