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TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



June 12, 2021

++ GST - No contract - Tax invoice itself shall be considered as 'a contract' and TDS shall be applied if value of supply exceeds the limit u/s 51: AAR

++ GST - Automatic Weighing Machine is liable to tax @18% and machines like automatic feeder, drying,  grading, pre-stem remover sold to farmers/farmer clusters @12%: AAR

June 11, 2021

++ Cus - In absence of any notification/order specifying the rates to be levied towards Cost Recovery Charges under Regulation, 2009 for deploying its officers, collection of the same from petitioner is without basis: HC

++ Cus - Contention of Revenue that the request made by petitioner for conversion of 'drawback shipping bill' to 'drawback-cum-advance authorization shipping bill' could not be traced cannot be accepted - Matter remanded: HC

++ Cus - Statutory appellate remedy provided under the Act is a valuable right conferred on a litigant - Entertaining a writ petition in the presence of an appellate remedy is not preferable: HC

June 10, 2021

++ Cus - Petitioner has partly acquiesced in SCN proceedings by participating in the same, therefore, it is not open for them to file WP questioning the jurisdiction of respondent: HC

++ CX - Credit in respect of capital goods in terms of Rule 3 of CCR 2004, is allowable if such goods are used by manufacturer of dutiable goods: CESTAT

June 09, 2021

++ GST - Intermediary - Extra-territorial effect given by way of s.13(8)(b) of the IGST Act has no real connection or nexus with the taxing regime; is ultra vires besides being unconstitutional - Difference of opinion: HC

++ IGST - Petitioner solicits purchase orders for its foreign customers - s.13(8)(b) r/w s.8(2) of the IGST Act is definitely an artificial device created to overcome a constitutional embargo - Difference of opinion: HC

++ Cus - Order of the Settlement Commission is a package and it is not a substitute for an adjudication order - Take it or leave it: HC

++ Cus - Calculation of average export performance per annum in the licence was skewed - Issue to be examined afresh and benefit of amnesty schemes to be extended: HC

June 08, 2021

++ GST - Office Memorandum only prescribes the manner of calculation to determine the amount of tax in a particular eventuality in the transitional period of migration to GST Act - No merit in the Petitioner's challenge to the said OM: HC

++ GST - Damodar Valley Corporation fulfils the criterion laid down for 'Government entity' as per Notification No. 31 & 32/2017-CTR: AAR

++ Commercial Tax - Operation of assessment order merits being stayed where passed without granting any hearing to the assessee: HC

June 07, 2021

++ GST - Disconcerting blog - Any slant in the reporting, which is not in line with the orders of the Court, leads to multifarious problems including the embarrassment that counsels appearing in the matter may encounter vis-a-vis their respective principals: HC

++ NDPS - Substance recovered in this case is not of 'commercial quantity', therefore, the bar of Section 37 of NDPS Act is not applicable - Bail granted: HC

++ GST - Rule 86-A(3) of Rules, 2017 - Blocking of the electronic credit ledger cannot be extended beyond the period of one year from the date of imposing such restriction: HC

++ GST - s.83 of the Act, 2017 - Provisional attachment cannot be made against future receivables: HC

++ GST - Attachment proceedings cannot be at the cost of protection of rights envisaged under Article 19(1)(g) of the Constitution of India: HC

++ Sales Tax - Subordinate authority is not empowered to supersede the orders passed by appellate authority & administrative discipline requires that subordinate authorities should follow orders of appellate authority : HC

June 05, 2021

++ NDPS - Sections 41 & 42 - Search of the co-accused was taken by a lady Constable and the same was to maintain the dignity, however, the search was taken in the presence of the ACP concerned and it cannot be said that on that count the search is vitiated: HC

++ ST - SCN issued without pre-notice consultation - In order to avoid any procrastination of proceedings which are at nascent stage, SCN kept in abeyance and in the interregnum, petitioner to be afforded an opportunity of personal hearing in terms of Circular dated 10.03.2017: HC

++ CX - If petitioners have manufactured Ready Mix Concrete, it would be of no significance, given the text of the exemption notification and the clarification that it is used for captive use and not for sale: HC

++ CX - Writ petition cannot be rejected merely because a statutory appeal has not been preferred by the petitioners within the prescribed period: HC

June 04, 2021

++ CX - CESTAT dismissed appeal on 21.08.2017 for non-compliance of pre-deposit of 7.5% of duty demand - Deposit made on/by 28.10.2020 - Appeal restored in the interest of justice: SC

++ GST - It is well settled that the stage of examination of witness u/s 200 of CrPC would not arise before taking cognizance by the Magistrate: HC

++ ST - Prevailing view, even within the Department is that there would be no service tax liability on take away food - No appeals filed against orders that took a similar view: HC

++ ST - Take-away counters are positioned away from main dining area - No provision of niceties such as services of Maitre D', hostesses, liveried waiters and the use of fine crockery and cutlery - No service tax on parcel food: HC

++ GST - Rule 31A(3) of CGST Rules, 2017 travels beyond what is conferred upon the Rule making authority u/s 9 which is the charging section: HC

++ GST - Horse racing - Circular No . 27/01/2018-GST dated 4.1.2018 clarifying that GST would be leviable on the entire bet value is quashed: HC

++ GST - A totalisator does not indulge in betting - Petitioners hold the amount received in the totalisator for a brief period in its fiduciary capacity - there is no supply of goods/bets by the petitioners as defined under the Act: HC

++ GST - Totalisator holds money in trust on behalf of the punter before redistribution to the winner of stake which cannot be construed to be a consideration in terms of Section 2(31) of the Act: HC

++ GST - All that the petitioners would become liable for payment of tax under the Act is the 'commission' that it receives for rendering service of holding the bet in the totalisator for a brief period in a fiduciary capacity: HC

++ GST - Rule 31A(3) insofar as it declares that the value of actionable claim in the form of chance to win in a horse race of a race club to be 100% of the face value of the bet is beyond the scope of the Act: HC

++ GST - Supply of aerobic micro organism/protein derived thereof, which is used in concrete technology - item essentially bears the character of an additive; classifiable under TI 3824 40 and attracts GST @18%: AAR

++ GST - s.132 - Petitioner, a housewife, although a partner, affairs of the firms were being managed by her son, who has been arrested in November 2020 - in the event of arrest, petitioner is to be released on interim bail: HC

June 03, 2021

++ ST - Penalty u/s 78 of Finance Act, 1994 cannot be imposed when there was no deliberate suppression of facts with intention to evade payment of service tax: CESTAT

++ ST - Interest liability is attracted where service tax is payable by a certain date, but is not paid due to lack of data: CESTAT

++ CX - No provisions exist in CEA 1944 which deal with refund of revenue deposit & no rate of interest is prescribed for the same - Guidance is taken from interest provisions of Sections 11AA, 11BB & 11DD of the Act: CESTAT

June 02, 2021

++ GST - Allegation is that petitioner purchased material under various HSN codes but sold the same under a single HSN code (of scrap) and such conduct resulted in defrauding the exchequer by way of wrong ITC of Rs.5 crores - Matter adjourned to enable Respondent to ascertain whether GST rate on purchased items is less or more than 18%:  HC

++ GST - TRAN-1 - Proving that failure to successfully upload was due to technical glitches in portal - Stand of respondents is too narrow - assessee could not have anticipated requirement of Board Circular to collect proof by way of screen shots: HC

++ GST - CENVAT credit has been allowed in favour of Petitioner pursuant to orders passed in 2018-19 - Revenue directed to open portal so as to enable Petitioner to file TRAN-1 Form electronically or to accept a manual form: HC

++ Cus - Courier Imports and Exports Regulations, 2010 - Where authorized courier omits to verify KYC directly from importer, such default is not tantamount to mis-declaration - Revocation of its registration, forfeiture of security deposit & penalty are unwarranted: CESTAT

++ ST - Towers & pre-fabricated shelters form essential ingredient in providing telecommunication service, as they are used for supplying such service & so qualify as inputs - Cenvat credit allowed thereon: CESTAT

++ CX - Where order rejecting refund claimed by assessee is been set aside & assessee is entitled to refund amount, assessee cannot be directed to pay interest on such amount: CESTAT

June 01, 2021

++ Arguable questions - Order of Delhi HC quashing notification 30/2021-Cus imposing IGST @12% on import of Oxygen Concentrator as gift for personal use, as being unconstitutional, is STAYED: SC

++ GST - Anti-Profiteering - Summons by DGAP - Pandemic - Petitioner cannot plead defence of limitation by including the period for which the summons are kept in abeyance: HC

++ GST - TRAN-1 - Filling in of wrong details or omissions - A genuine mistake should not result in the Petitioners' losing out on their accumulated credit which is protected by Article 300A of the Constitution: HC

++ GST - There cannot be any contest regarding the cost factor and profit margin - The tax liability will have to be borne by the respondent Board: HC

++ GST - Failure of petitioner to give relevant details in TRAN-1 Form can only be taken as a procedural lapse which should not cause any impediment to its right to claim transitional ITC: HC

++ ST - Assessee is entitled to claim interest on delayed refunds after three months from date of filing of refund claim till its realization: CESTAT

++ CX - Demand for interest is not sustainable when during the relevant period, there were divergent views of the Apex Court on the relevant issue & where such issue was finally settled later: CESTAT