TODAY'S CASE (INDIRECT TAX)

September 30, 2021

++ TN Entertainment Tax - live music entertainment concert falls under the scope of amusement u/s 3(2-A) & will attract levy of Entertainment Tax u/s 4F: HC

++ GST - Factual matrix indicates that petitioner was given opportunity of hearing, more than twice, and they did appear on the last opportunity - mandatory provisions of s.75(4) followed: HC

++ GST - Appeal was dismissed on the ground of limitation without affording any opportunity of hearing to explain the delay - AA to decide  appeal on merits: HC

++ CX - As appellant has paid excise duty on the basic sale price, which includes element of transportation upto the premises of buyer, they are entitled to cenvat credit of GTA service : CESTAT

++ Cus - Since the appellant accepted while executing transfer bonds the noticed shortage but has failed to explain sufficient cause for silence to contest the same for almost one and half year, subsequent refund application is nothing but an after-thought : CESTAT

++ ST - Since the conduct of appellant clearly shows that he is not interested in pursuing the appeal, same is dismissed for non-prosecution in terms of Rule 20 of CESTAT (Procedure) Rules, 1982: CESTAT

September 29, 2021

++ GST - Since the appeal preferred by petitioner under Section 107 of GST Act, 2017 has been dismissed without hearing the petitioner, an opportunity granted to appear before appellate authority: HC

++ GST - There is no question of invoking Section 83 of GST Act for the purpose of provisional attachment once the final order in form GST DRC-07 is passed: HC

++ ST - Filing 'SVLDR form' under a wrong category is a bonafide mistake - In the interest of justice, an opportunity is to be granted to avail benefit of the scheme: HC

++ ST - Preamble to O-in-O - Indication in Hindi of the requirement to file an appeal within 90 days is erroneous - Petitioner is entitled to the benefit of the error: HC

++ Cus - Nowhere in the Customs Act, there is any prohibition to defer the adjudication process, while the criminal proceedings is underway u/s 135: HC

++ Cus - By no stretch of imagination, it can be stated that merely because adjudication process is being conducted, that will have a prejudice against the petitioner in the criminal proceedings launched against him: HC

++ GST - Cancellation of registration - No credible explanation for filing the petition with more than two years delay - Petition dismissed: HC

++ GST - Non-adherence to Rule 142 is not a mere procedural requirement but tantamount to trampling the rights of writ petitioner: HC

++ CX - Intention of insurance policy is to protect the employees working on site and not primarily for personal use and thus, premium paid on such service should be considered as input service: CESTAT

++ ST - When the same liability has been discharged twice by appellant once inadvertently in inactive account, subsequently, in active account, refund was rightly been filed : CESTAT

++ ST - Relation between appellants and group companies to which their employees have been deputed is not one of an agency and the client, deputation of employees was only in the interest of company : CESTAT

September 28, 2021

++ GST - Bench is unaware of educational qualifications of Commissioner or his expertise in chemical science - Instead of discrediting report of ICT, a counter expert opinion ought to have been obtained: HC

++ GST - Observations by Commissioner in order passed u/r 159(5) are not structured on any referable scientific basis - Order for freezing of bank accounts lifted - matter deserves de novo consideration: HC

++ Cus - Without a 'cause of action', the 'right of action' is meaningless - There being no real threat of infringement of any of its rights, the petitioner does not have the 'cause of action': HC

++ Cus - Law is well settled that writ petitions challenging SCNs ought not to be entertained for the mere asking and as a matter of routine: HC

++ GST - Principles of natural justice are to be read into Rule 86A although no such procedure is provided thereunder: HC

++ GST - Without recording any reason, the invocation of power u/r 86A should be held to be unauthorised, illegal and without jurisdiction: HC

++ Cus - During the complete lockdown period, an extension should have been given by the respondents to the petitioner to properly respond to the SCN - Order set aside and matter remanded: HC

++ ST - Once there is no apparent mala fide on the part of appellant, fastening the allegations as that of concealment, fraud and suppression are held to be highly unjustified: CESTAT

September 27, 2021

++ CX - Since the requisite duty stands paid in full by assessee which entitles them to have credit thereof though in the form of cash in terms of provisions of new Act, refund cannot be rejected: CESTAT

++ Constitution of India - U/Art. 142 r.w. Art. 141, SC is empowered to take suo motu cognizance and issue directions to permit relaxation in period of limitation : SC LB

++ Service Matter - Fundamental Rules - HC can entertain writ petition challenging compulsory retirement u/Rule 56(j) only on grounds of non-application of mind and mala fides and not principles of natural justice : HC

++ GST - s.17(5) of the Act, 2017 - Blocked credit - ITC is not admissible on Air-conditioning and Cooling System and Ventilation System: AAR

++ CX - Not allowing a party to cross examine witness, whose statement was the basis of the SCN to demand duty, is a serious flaw - If the statement of witness is taken out of records, there is no other evidence: HC

++ GST - It is certainly not the import of s.69/70 that an individual who is avoiding appearance without any just excuse can claim that even if he appears after a dozen summons, the authority cannot take coercive action against him, including his arrest: HC

++ VAT - In cases where adverse decision is contemplated, it is statutorily imperative to give opportunity of hearing u/s 75(4) of TNGST Act: HC

++ GST - Anyone intentionally avoiding the mandate in law is not entitled for any protection in law: HC

++ ST - If the invoices and corresponding undertaking can be correlated, though not in a manner provided for, substantive conditions to Exemption Notifications stand fulfilled and exemption cannot be denied:CESTAT

++ CX - Since the product in question is one and only one, i.e. dissolved acetylene gas which is charged to duty @ 14%, applicability of Rules 6(3)(b) of CENVAT Credit Rules is not at all sustainable: CESTAT

++ Cus - When right from the closing position, amount of refund has not been absorbed in cost of final product, question of passing of incident of said amount does not arise: CESTAT

++ ST - The retrospective effect of exemption is applicable to the electrical works executed and the maintenance undertaken by appellant:CESTAT

September 25, 2021

++ VAT - Dispensing with appellate remedy is to be granted cautiously so that appellate remedy cannot be diluted nor benefit be denied to aggrieved person to exhaust same: HC

++ NDPS - As the petitioner is involved in another case also of similar nature, he is not entitled to bail : HC

++ ST - If Department had proposed the demand, it was for the Department to substantiate from records that the proposed demand was justified: CESTAT

September 24, 2021

++ TNVAT - First Appellate Authority cannot travel beyond scope of assessment: HC

++ CX - Once CBIC, by clarification, enlarged the meaning of the word 'quantified' to extend benefit of SVLDRS to more persons, there is neither any wisdom nor legal basis to curtail the same: HC

++ CX - SVLDRS, 2019 is a piece of reform legislation and it commends a purposive construction: HC

++ VAT- Writ against show cause notice can be adjudicated by HC u/Art. 226 only if notice has been issued by incompetent authority sans jurisdiction : HC

September 23, 2021

++ GST - Filing of TRAN-1/TRAN-2 - State was obligated to provide a robust GST Portal: HC

++ GST - Inability to provide a reliable online platform would render the strict time prescription (u/s 140, u/r 117) arbitrary and, therefore, violative of Article 14: HC

++ GST - TRAN-1 - Circular dated 03.04.2018 - CBIC has travelled half the distance and left taxpayers in the lurch: HC

++ GST - TRAN-1 - Producing evidence of attempted filing - To enforce such condition is plainly not protected by any Statute or Rule: HC

++ GST - TRAN-1 - All UP taxpayers should benefit - Respondents shall host the operative portion of order on GST portal to ensure one-time/final resolution of all disputes: HC

++ NDPS - Bail - HC has overlooked crucial requirements and glossed over the circumstances which were material to the issue: SC

++ NDPS - Recovery of 3.3 kg of heroin - HC ought to have given due weight to the seriousness and gravity of the crime which it has failed to do: SC

++ GST - The transfer petitions of cases pending before various High Courts to this Court cannot be entertained for the reason that various High Courts are already seized of the matters.: SC LB

++ GST - Since petitioner failed to upload GST TRAN-1 form on account of some unavoidable and unforeseen circumstances, he is permitted to submit the same either electronically or manually: HC

++ Cus - Inadvertent ticking of 'N' instead of 'Y' in the shipping bill in the reward column - Benefit of MEIS not to be denied: HC

++ GST - Confiscation is in nature of mala prohibita as contradistinguished from mala in se - Confiscation of goods/conveyances does not render them res extra commercium or res nullius : HC

++ GST - Even when proceedings culminate in confiscation, sin does attach to goods/conveyance but only may attach to their owner who can purge it by making payment of tax & penalty: HC

++ GST - Writ petitioner has not got past the threshold barrier qua alternate remedy - Statutory appeal is available - Petition dismissed: HC

++ CX - Despite several orders of Court, demand has not been finalized and still some witnesses are yet to be cross-examined, continuance of proceeding is nothing but an abuse of process of law, matter listed afresh : HC

++ CX - For availing the cenvat credit, it is not necessary that the location from where the output service is provided should be owned by the service provider: CESTAT

September 22, 2021

++ GST - S.130(4) of Act, 2017 - Petitioner not given an opportunity of being heard before passing orders of confiscation in Form GST MOV-11 - Orders quashed and set aside: HC

++ GST - Statute should be read as it is, without distorting or twisting its language: HC

++ GST - Petitioner unable to show that provisions are unreasonable or the object of these enactments are to destroy a fundamental/constitutional right: HC

++ CX - Appellant seeks withdrawal of appeal as matter stands settled under SVLDRS, 2019 - Withdrawal permitted - Appeal dismissed: HC

++ ST - The Commissioner (Appeals) having remanded the matter for fresh adjudication, should not have expressed any findings on the issues: CESTAT

++ CX - The goods whether used for manufacture of final product or lying in the factory of assessee, Cenvat credit on capital goods is admissible: CESTAT

++ CX - Refund - Section 11B of CEA 1944 is special provision - As is settled law, any provision cannot be interpreted in such manner which leads to it being rendered otiose: CESTAT

++ ST - Department cannot question assessee's eligibility for Cenvat credit at the moment of assessee claiming refund: CESTAT

++ Cus - Penalty imposed on CHA u/s 114 of Customs Act is upheld where CHA abets attempt to export improper goods with misleading declarations, rendering such goods liable to confiscation: CESTAT

September 21, 2021

++ Cus - Tribunal has not at all looked into the merits on facetious ground and allowed appeals on superficial evaluation - Order set aside and matter remanded: SC LB

++ GST - There was a reference to unilateral declaration of liability by petitioner and not a quantification of demand by Revenue and therefore, same does not make the petitioner eligible to avail benefit of SVLDR Scheme: HC

++ Cus - Section 149 permits amendment in Bill of Entry even after clearance of goods: HC

++ Cus - haste on part of Revenue to fix personal hearing within 24 hours of issuing of notice, leads to presumption that Revenue did not apply mind before issuing notice - SCN stands quashed: HC

++ CX - Settlement of issues can never be claimed as matter of right - Only that person who approaches Settlement Commission with clean hands is entitled to get relief: HC

++ CX - Adjudication before Settlement Commission cannot be compared with regular investigation or enquiries to be conducted by Competent Authorities under CEA 1944: HC

++ Cus - The charges levelled against appellant under CHALR, 2004 cannot sustain when the acts / omissions / cause of action has happened prior to the introduction of the Regulations: CESTAT

++ CX - When the appellant has discharged excise duty on final product then the department cannot disallow credit alleging that there is no process of manufacture: CESTAT

++ CX - Refund already sanctioned cannot be deemed to be erroneously sanctioned where it was granted in compliance with relevant statutory provisions and Board circulars: CESTAT

++ ST - Mere dispatching of order does not per se imply its receipt by assessee: CESTAT

September 20, 2021

++ GST - Order of provisional attachment is required to be communicated to party affected & such requirement is necessary for meaningful exercise of the right conferred under Rule 159(2) of CGST Rules: HC

++ VAT - Any amount collected from assessee & deposited with Government can be contested by assessee & such amount cannot be retained without adjudication : HC

++ GST - Since the successful attempt of petitioner in uploading the form online was nothing new but the exact copy of earlier form, petitioner is allowed to tender the revised form GST TRAN-1: HC

++ GST - Since a final order has been passed under Section 130 of CGST Act, the proper course would be to file an Appeal as provided for under the Statute: HC

++ ST - Benefit u/s 80 of Finance Act 1994 must be allowed where assessee remits service tax immediately upon being prompted by auditor - Penalties u/s 76 & 78 of Finance Act merit being dropped: CESTAT

++ CX - Cenvat credit is available in respect of inputs cleared without payment of duty to 100% EOU: CESTAT

September 18, 2021

++ CX - Delay in filing appeal merits being condoned where it is attributed to passing away of proprietor of assessee-company: CESTAT 

++ ST - Refund - Notfn No 06/2015-ST - 1 day delay in filing refund is confined where incidence of duty is passed on to Ministry of Defence for whom assessee provided service on contractual basis & where rejection of refund due to delayed filing by assessee, would prejudice the Ministry: CESTAT

September 17, 2021

++ CX - It is settled position in law that charges of clandestine manufacture of goods must be established through concrete evidence - allegations levelled based on third party evidence merit being dropped: CESTAT

++ Cus - CBLR - Principles of natural justice are contravened where adjudicating authority passes order contrary to findings recorded in Inquiry Report & without informing broker about grounds of disagreement with such report: CESTAT

September 16, 2021

++ GST - Besides the surety bond of equivalent amount of value of goods, petitioner is required to furnish security in form of bank guarantee for release of seized goods: HC

++ ST - It is fit case for remand where assessee's application for refund is dismissed in limine on grounds of limitation & without considering application on merits: CESTAT

++ CX- Assessee liable to pay interest on subsequent price variation of manufactured goods, w.e.f. their date of removal: CESTAT

++ CX- Iron & Steel items used in fabrication of capital goods & their accessories inside factory of manufacture, are eligible for Cenvat credit: CESTAT

++ Cus - Seizure of Gold - Penalty u/s 112 cannot be imposed where neither foreign origin of such Gold nor factum of it being smuggled, is established: CESTAT

September 15, 2021

++ ST - Duty demanded in respect of bank guarantee issued by assessee's bank is not tenable, where O-i-O in question fails to establish how such activity qualifies as taxable service: CESTAT

++ CX - Duty demand raised by invoking extended limitation is upheld, where assessee suppresses material facts by evading Audit & by not informing Department about dutiable nature of goods manufactured by it: CESTAT

++ CX - Cenvat credit in respect of Outdoor Catering Service cannot be availed to the extent where contribution of service charges is borne by assessee's employees & not by assessee itself: CESTAT

++ Cus - Where importer accepts enhanced value of goods as computed by Department, this per se cannot become grounds to establish charges of mis-declaration against importer: CESTAT

September 14, 2021

++ Cus - Contravention of CBLR - Revocation of broker's license is not tenable where appellant-broker is found to not have played any role establishing any irregularity: CESTAT

++ CX - Cenvat credit is allowed in respect of certain services utilised at depot outside factory where manufactured finished goods are cleared: CESTAT

++ CX - Business event services - Vishwakarma Puja is auspicious festival for workers where they pray for good functioning of machines - Cenvat credit allowed thereon: CESTAT

September 13, 2021

++ GST - Refund - Rule 89(5) - Inverted duty structure - VKC Footsteps not good law - TRANSTONNELSTROY AFCONS judgment of Madras HC affirmed: SC

++ GST - Refund - s.54, rule 89(5) - Reading the expression 'input' to cover input goods and input services would lead to recognising an entitlement to refund, beyond what was contemplated by Parliament: SC

++ GST - Absence of words 'as may be prescribed' in s.54(3) does not deprive the rule making authority to make rules for carrying out the provisions of the Act: SC

++ GST - Rule 89(5) Anomalies in formula - GST Council urged to reconsider the formula and take a policy decision: SC

++ GST - Summons - In context of Section 6(2)(b) & 70 of CGST Act, the terms inquiry and proceedings cannot be mixed up to infer a bar on invoking power of summons u/s 70: HC

++ GST - When provisions of s. 54(3)(ii) are unambiguous and explicitly clear in nature, there is no requirement of bringing in any uniformity in its implementation by exercising powers u/s 168(1) - Para 3.2 of circular 135/2020 is to be ignored: HC

September 11, 2021

++ CX - In absence of investigation to prove allegation of clandestine removal, demand of excise duty merely based on differences in figures of consumption cannot be sustained: CESTAT

September 10, 2021

++ GST - Applicant is running a bakery business where different items are sold on take away basis - Activities cannot be considered as restaurant Service: AAAR

++ GST - Supply is being undertaken or proposed to be undertaken by the JV company and not the applicant, therefore, an application for advance ruling can be made by the JV only: AAR

++ ED - Director of Enforcement can be appointed for period of more than two years by following procedure prescribed u/s 25 of CVC Act: SC

++ Cus - Relief cannot be granted in anticipation that the Customs authorities would pass an assessment order in contravention of the advance ruling given in favour of petitioner: HC

++ Cus - High Court cannot adjudicate disputed facts and circumstances elaborately in a writ proceedings under Article 226 of the Constitution of India: HC

++ GST - No proceedings under sections 62 or 63 or 64 or 67 or 73 or 74 have yet been initiated against petitioner - Immediate defreezing of bank account ordered: HC

++ GST - Proceedings initiated against an entity different from the entity whose bank account is attached - Respondents directed to forthwith defreeze bank account of petitioner: HC

++ GST - Entitlement of ITC is governed by Act/Rules, 2017- GSTR-2B being made effective only from 01.01.2021 is no reason to allow credit in respect of supplies made in Jan-March 2020 but tax for which was paid in November 2020: AAR

++ VAT - Mere fact that manufacturing unit is located outside State of Tamil Nadu, is no basis for denial of ITC u/s 19(1) of TN VAT 2006 Act: HC

September 09, 2021

++ GST - HC has proceeded on the basis of surmises - Petition ought to have been entertained only in exceptional circumstances - Respondent relegated to the pursuit of alternate statutory remedy: SC LB

++ ST - Narrow or pedantic interpretation cannot be possible in the words 'conduct of examination' - Without university, college cannot impart education on its own - Services rendered by granting affiliation is exempted: HC

++ ST - Renting of immovable property by University for the purpose of bank, post office, canteen are all allied services of education; exempted: HC

September 08, 2021

++ GST - When entire tax liability is deducted from cash ledger, rejecting appeal on the ground that 10% amount deposit not made in terms of s.107(6) is too technical a view: HC

++ Coal syndicate - Paying GST on lesser volume than that actually loaded in the vehicle - forging e-way bills, invoices - If bail is granted, investigation would be hampered - application rejected: HC

++ GST - Rs.2.40 crores of credit blocked in the Electronic Credit ledger - One year period is over, therefore, restriction ceases to have effect - Revenue directed to de-block credit ledger: HC

++ CX - On commission paid to financers for arranging prospective buyers to the appellant for sale of vehicles, appellant is entitled to take cenvat credit as 'sale promotion' is an 'input service': CESTAT

September 07, 2021

++ GST - Orders of AAR & AAAR do not answer the basic question raised by the petitioner - Orders set aside and matter remanded: HC

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

++ CX - CENVAT - Circular transaction - Entities have not utilized the credit but that cannot be the reason for reduction of penalty - Exercise of discretion should be with sound reasons and cannot be arbitrary or whimsical: HC

++ CX - In absence of any investigation to prove clandestine removal of PET bottles, recovery of excise duty merely based on differences in figures of consumption cannot be made by department: CESTAT

September 06, 2021

++ Cus - Furnishing of Bank Guarantee - Petitioner is not able to establish that in the event of opting for Auto Renewal clause, as mandated by RBI based on which Circular was issued, their rights are affected: HC

++ GST - Computer generated SCN fixing a personal hearing on Gandhi Jayanthi, a public holiday - Department to make changes in the software to avoid such predicaments: HC

++ VAT - HC cannot invoke writ powers to rectify factual errors committed by Tribunal: HC

++ GST - Supply of manpower services like Drivers and cleaners for solid waste management system to City Corporation is exempted but supply of group 'D' drivers is not; attracts @18%: AAR

September 04, 2021

++ Cus - Conversion from a foreign going vessel to a coastal run vessel - No CVD can be collected in respect of vessels imported in 2003/2007/2011 - 12/2012-Cus is only prospective in its application: HC

++ Cus - Insolvent Importers - Statutory provisions and regulations cannot be interpreted in a manner so as to deprive the exporter of his title to the goods imported: HC

++ Cus - Perishable goods - Import of Black pepper of Sri Lankan origin - Right of the petitioner to get provisional release of the goods cannot be completely curtailed by any authority: HC

September 03, 2021

++ GST - Rule 86A - Blocking of credit - Sheer misuse of power & non-application of mind - Revisional authority couldn't have passed order merely on the basis of noting and in absence of relevant records: HC

++ GST - Fake invoices - Involvement of Tax consultant - Huge tax evasion of Rs.29 crores - Enlargement on bail would hamper investigation/evidence tampering - petition rejected: HC

++ GST - Transport department holds back vehicle resulting in expiry of E-way bill - GST authorities join them and raise demand while detaining machinery - Power to release on provisional basis should have been activated: HC

++ GST - Tax authorities must make a clear distinction between deliberate tax evasion and technical or minor defects which manifest no intention to evade tax: HC

++ GST - Fake invoices for ITC availment - Witnesses not produced by complainant - prosecution seems uninterested -  benefit of mandate of s.436A of Cr.P.C extended - bail granted: HC

September 02, 2021

++ Cus - Mere pendency of a case before Supreme Court cannot be taken as a ground for the purpose of keeping matters pending before High Court: HC

++ Cus - Prolonging litigation may result in unjust gain to litigants: HC

++ Cus - Suspension of licence is an interim measure to keep Customs Broker away from business transactions to protect interest of Customs area - Prolonged suspension is also bad in law: HC

++ GST - Activity is not transfer of leasehold rights by IPL to INOX but is an activity of 'agreeing to part' with the leasehold interests IPL holds, on the land to be leased to INOX, by SIPCOT - Tax payable on consideration received: AAR

++ GST - To classify a product, complete nature and features of the product should be known - Without specifics of supply, classification cannot be arrived at - application rejected: AAR

September 01, 2021

++ GST - For payment of stamp duty, other charges are excluded but while paying GST such charges are treated as part of construction service - Applicant cannot  approbate and reprobate - Other charges attract 18% on entire consideration: AAR

++ NDPS - s.37 - Materials that are placed before the Court are not sufficient to convict the petitioner or to hold him guilty - Bail granted: HC

++ CX - SVLDRS, 2019 - If adjudication proceeding is allowed to continue during pendency of the declaration made, it would defeat the object of reform i.e. to end 'legacy disputes': HC

++ CX - SVLDRS, 2019 - Second declaration under the category 'arrears' in respect of the adjudication order passed in remand proceedings is non est - it must be ignored: HC