TODAY'S CASE (INDIRECT TAX)

January 31, 2022

++ GST - rule 86A - Duty of officer to permit assessee to utilise credit in ECL after expiry of one year: HC

++ Cus - Proprietor of the firm is no more - Appeal filed, therefore, stands abated: CESTAT

January 29, 2022

++ Cus - Respondents seem to have slipped into deep slumber after calling petitioners for a hearing in 2006 in r/o SCN issued in April 1997 - Respondents do not have unfettered right to conclude proceedings as per their convenience: HC

++ Cus - SCN gathers dust for 23 years - Arbitrariness is writ large - Rs.2 crore deposited during investigation to be returned with interest @12% p.a within two months: HC

++ Cus - Appellate Authority as well as Tribunal are competent to appreciate technical grounds raised - Alternative and efficacious remedy of appeal available, hence petition dismissed: HC

++ GST - Supply of developed plots is construction service - taxable @18%: AAAR

++ GST -  s.16(1) nowhere mandates proving one-to-one correlation of particular inputs with particular outward supply - Payment of output tax on Castor Oil Seeds by utilising ITC taken on Gold & Silver Dore Bars is permissible: AAAR

January 28, 2022

++ Cus - In absence of documentary evidence, the Petitioner cannot be granted MEIS benefit merely on the basis of pleadings: HC

++ Cus - Abduction and bringing into India of a foreign vessel by its crew illegally, without the knowledge of its owner, cannot amount to import: HC

++ Cus - To deny substantive relief to the petitioner on technicalities would amount to denial of justice: HC

++ GST - Whether transport of gold was with an intention to evade tax or not is a matter which requires appreciation of disputed facts - not a fit case for invoking extraordinary jurisdiction under Article 226: HC

++ Services of fitment of Artificial Teeth, Crown, Bridges is classifiable under SAC 999312, attracting Nil rate only when the same are provided as Healthcare Services: AAR

++ Cus - To penalise owner of vessel, when admittedly he had no knowledge of the alleged 'bringing into India' of vessel/goods, is, to say the least, too harsh, arbitrary and not contemplated under law: HC

++ Cus -  To err is human -  Where parties seek to rectify an error arising out of a lapse, the system must accommodate necessary procedure to rectify it: HC

January 27, 2022

++ GST - Attachment order lapses upon completion of one year - Respondents directed to de-freeze bank account and unblock Electronic credit ledger: HC

++ Cus - Public Notices clearly mention that goods covered under Ch. 21 cannot be tested at DYCC Laboratory, therefore, report allegedly submitted cannot be the basis for issuance of seizure memo: HC

++ CX - SVLDRS, 2019 - All for forty paise - Amount mismatch, transfer declined, recredited to account - Amount kept in FD all the while and interest earned - No benefits now as Amnesty scheme has come to an end: HC

++ ST - SVLDRS, 2019 - Contention that Petitioner was not eligible to file declaration and thus question of granting personal hearing was not warranted is totally absurd and without application of mind: HC

++ Cus - Since the amount for which refund was sought for by assessee is not a deposit but it is a duty, refund will be governed by Section 27 of Customs Act, 1962 and all provision of limitation and unjust enrichment is applicable: CESTAT

++ CX - The full amount of pre-deposit, even if it is more than prescribed limit, has to be refunded by Department along with interest @12% from the date of deposit till the date of granting refund : CESTAT

January 25, 2022

++ No GST is leviable on receiver on cash discount/incentive/schemes offered by supplier to applicant through credit note against supply: AAR

++ No proportionate reversal of ITC is required in respect of commercial credit note issued by supplier for Cash discount: AAR

++ GST - Sale of plots is not a supply: AAR

++ Notice pay recovered by applicant from its employees is not liable to GST: AAR

++ GST is NOT payable on recoveries made from employees towards providing parental insurance: AAR

++ VAT - Assessment orders merit being quashed where amount in dispute may be taxable under Finance Act 1994; case remanded for verifications: HC

++ VAT - Tax dues owed by company cannot be recovered through attachment of personal properties of company's MD: HC

January 24, 2022

++ GST - Safekeeping of goods at officer's relatives' place - Error, if any, on part of HC, had been of imposing only nominal costs of Rs. 10,000/- - Enhanced to Rs.69000/- - recoverable directly from the person/s responsible for this entirely unnecessary litigation: SC

++ GST - Rally by political party - Expiry of e-way bill validity due to traffic block - State alone remains responsible for not providing smooth passage of traffic: SC

++ ST - SVLDRS, 2019 - None of the provisions under the scheme contemplates that the investigation should be completed and tax liability should have been finally determined: HC

++ VAT - Issuance of SCN is mandatory in order to ensure compliance with principles of natural justice: HC

++ VAT - Assessee did not reply to notice requiring assessee to file objections prior to passing of assessment order; orders sustained: HC

++ Cus - Where DRI draws different conclusion in respect of provisionally assessed consignment, this per se does not imply fraud by exporter or complicity of Customs Broker in fraud: CESTAT

January 22, 2022

++ GST - Provisional attachment levied by the Respondents u/s 83(2) of the Act, 2017 on 11.10.2019 ceased to have effect on expiry of one year: HC

++ GST - Supply of a package consisting of coaching service as well as goods/printed material/test papers, uniform, bags and other goods to students when supplied for a single price constitutes a mixed supply; taxable @18%: AAR

++ Cus - If goods are not classifiable under chapter heading proposed by revenue thereafter even the goods classified under chapter heading claimed by assessee is correct or not, case of department will fail: CESTAT

January 21, 2022

++ GVAT - Exemption which is erroneously granted to assessee can be revoked in subsequent AYs where assessee does not satisfy pre-requisite conditions for availing such exemption: SC

++ VAT - Assessee is entitled to benefit of 100% waiver of penalty levied upon him u/s 70(2) r/w/s 39 of KVAT Act, if reassessment order was passed prior to cut off date: HC

++ Cus - Extension of warehousing period - Two lockdowns due to COVID-19 pandemic - Petitioner may have a genuine case - Orders to be passed on representation made: HC

++ CX - Whether Superior Kerosene Oil is out of ambit of SVLDRS - Summary rejection of an application without affording any opportunity of hearing would be in violation of the principles of natural justice: HC

++ GST -  Availment of ITC on common input supplies from third-party service vendors on behalf of Branch Offices and further allocation will qualify as 'supply of services' - ISD registration mandated -  cost incurred by HO shall be excluded from value of supply of facilitation services: AAAR

++ ST - Forfeiture of earnest money and retention of compensation damage for not delivery of purchased goods by other party is not the 'declared service' under Section 66E(e) of Finance Act, 1994: CESTAT

++ Cus - Unless Revenue can establish that the betel nuts have been imported illegally into India, they cannot be confiscated: CESTAT

January 20, 2022

++ TN VAT - merely because supplier failed to disclose turnover in it's return does not mean input tax credit is to be recovered from assessee : HC

++ GST - Recovery of GST under reverse charge mechanism on the royalty and District Mineral Fund Contribution paid by petitioners to the State of Jharkhand is stayed: HC

++ GST - Option available was to request customer to issue credit note to neutralize the alleged excess payment of GST - Tax was paid on 20.12.2017 - Refund claim filed on 30.05.2020 clearly time barred: HC

++ ST - Revenue has erred in levying penalty under Section 78 of Finance Act, 1994 when there is neither deliberate evasion of duty nor is there any evasion per se, same is set aside: CESTAT

++ ST - Since there is inordinate delay of more than one year from the intimation received from SIPCOT, rejection of refund claim as time-barred is legal and proper: CESTAT

January 19, 2022

++ GST - Sale of developed land does not constitute a 'supply' within the meaning of s.7 of the Act, 2017 and, therefore, GST is not applicable: AAR

++ GST - If pharmacy located in hospital premises is owned by a separate person then medicines/surgical/consumables supplied by such pharmacy to the in-patient cannot be termed as composite supply: AAR

++ GST - Preparation of product akin to Gutkha in Pan Shop - applicant not entitled to avail Composition Scheme: AAR

++ GST - Body building and mounting of body on chassis supplied by the Principal  by collecting job work charges for such fabrication work is taxable @18% - AAR ruling overturned: AAAR

++ NDPS - 15 Gms of Cocaine seized from bail applicant, is not commercial quantity which would warrant arrest - bail granted: HC

++ ST - An order of rejection of benefit under Voluntary Compliance Encouragement Scheme is appealable under Section 85 of Finance Act, 1994, impugned order cannot sustain: CESTAT

January 18, 2022

++ Cus - Customs cargo service provider is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs: HC

++ CX - MODVAT - Power plant is within approved ground plan - Divisions are not separate legal entities - Credit rightly availed on goods used in erection of Captive Power Plant at two other Divisions: HC

++ CX - RMC - Factual aspects which are required to be analysed by the first appellate authority and the CESTAT cannot be adjudicated under Writ jurisdiction: HC

++ GST - TRAN-1 - Bench appreciates the efforts of the ASG for resolving the problem and making the credit available to the applicants: HC

++ GST - It is for Respondents to decide whether director of the Petitioner shall still be called for recording of evidence after furnishing of documents and information by Consultant: HC

++ GST - s. 13(3) of IGST Act, 2017 - Inspection performed  for foreign clients  on equipment/machinery intended to be exported - Place of supply of service is within India, hence liable to SGST + CGST: AAR

++ ST - Since Cenvat credit is not available, due to implementation of GST w.e.f. 1st July 2017, appellant is entitled to claim refund under transitional provision of Section 142 (3) of CGST Act: CESTAT

++ Cus - While refraining from offering any finding on the role by importer in alleged malpractice, no case has been prima facie, made against appellant so as to warrant the suspension of Licence: CESTAT

January 17, 2022

++ Cus -Maximum liability is to deposit 7.5% of demand in appeal -Hasty and hurried action of encashing bank guarantee of amount in far excess cannot be countenanced: HC

++ GST - Appellate authorities are advised that in the event, people have filed appeals before the wrong forum, the appellant ought to be informed by email about the error committed since all these facilities are fairly new: HC

++ GST - Refund - s. 54 of the Act, 2017 -  Order of Supreme Court dated 27.04.2021 [2021-TIOL-222-SC-MISC-LB] clearly  enures  to the benefit of the writ petitioner - Matter remanded: HC

++ GST - Contempt - Explanation sought of Principal Commissioner - ASG has always come to the rescue of irresponsible erring officers - Paragraph expunged from order: HC

++ GST - Electronic credit ledger not unblocked even after one year - Authority concerned would be personally liable for the loss which the assessee suffers during the interregnum period: HC

++ Cus - Reason for declining amendment is that EGM was closed which may be valid reason for not being able to make amendment in EDI system, but is not a valid reason for not allowing amendment under Section 149: CESTAT

++ Cus - The proposal for confiscation and penalty cannot be segregated from duty demand and therefore, the proceedings for confiscation and penalty cannot survive: CESTAT

January 15, 2022

++ GST - Contract for water loss management with Kolkata Municipal Corporation which includes construction of water distribution networks and O&M shall be treated as an indivisible single contract and qualifies as works contract: AAR

++ GST - Milling of wheat into flour along with fortification with vitamin & supplying the same to Food & Supplies Department for distribution under PDS is a composite supply eligible for exemption: AAR

January 14, 2022

++ GST - Court must adopt a construction which will ensure smooth and harmonious working of the statute and eschew the other which will lead to absurdity: HC

++ GST - S.6 and Circular dt. 5.10.2018 inapplicable - Compelling officer to restrict his investigation and findings and resultant action only to the taxpayer within his territorial jurisdiction would lead to an incomplete and inconclusive investigation/action: HC

++ GST - Refund claim not time barred in view of SC decision in Cognizance for Extension of Limitation : HC

++ GST - Amending TRAN-1 - If Architecture of the Web Portal did not have such facility, petitioner cannot be blamed - ITC once availed is indefeasible and cannot lapse: HC

++ CX - Only because the service is rendered in India, it does not cease to be an export of service in case recipient of service is located outside India: CESTAT

January 13, 2022

++ GST - Question as to whether tax invoice proposed to be issued satisfies the provisions of Act/Rules, 2017 cannot be answered: AAR

++ GST is NOT payable on the notice pay recoveries made from the employees on account of their not serving the full notice period: AAR

++ GST - Classification of 'Non-Dairy Cream' - DG, GST Intelligence, Pune Regional Unit has initiated proceedings in the matter - Application cannot be entertained: AAR

++ GST - Composition taxpayer - Counter sales of Sweets and namkeens - Applicant can opt to pay GST @1%: AAR

++ CX - Since there is no attempt to clear goods clandestinely and the offence at most is only of non accounting of finished goods, lenient view can be taken, accordingly, redemption fine is reduced: CESTAT

++ Cus - No interest can be charged on finalisation of provisional assessment initiated before 2006 as there was no charging Section at that time notwithstanding the fact that such assessments are finalised after amendment : CESTAT

++ Cus - Valuation has to be done as per Section 14 of Customs Act, 1962, i.e. as per transaction value and if there is reason to doubt the truth and accuracy of transaction value, same has to be recorded and after rejecting transaction value, correct value should be determined: CESTAT

January 12, 2022

++ Limitation Act - Considering impact of surge of virus on public health and adversities faced by litigants in the prevailing conditions, it is appropriate to extend period of limitation under various laws - SC LB

++ GST - Traveling in a direction different than the normal route to destination is not a sufficient reason to draw an inference that the intention was to evade tax: HC

++ GST - Does the aforesaid make any sense? What is the object of pre-consultation?, quips High Court

++ GST - Unable to file TRAN-1 - Workable solution - File individual tax credit in GSTR-3B Forms for the month of January 2022: HC

++ ST - Demand of service tax under Commercial or Industrial Construction Services cannot sustain for contracts which are composite in nature and involve both supply of material and rendering of service : CESTAT

++ Cus - A perusal of Section 129DD indicates that a revision may lie before Central Government, thus, as Tribunal does not have jurisdiction to decide the appeal, it stands dismissed: CESTAT

January 11, 2022

++ GST - Cash credit account cannot be provisionally attached - Settled position of law conveniently over-looked - Principal Commissioner is in contempt and he owes an explanation: HC

++ Public servant in December years waiting in departure lounge - service of charge-sheet concerning incidents more than a decade old - no satisfactory explanation therefor - disciplinary proceedings set aside: HC

++ GST - Fortified Rice Kernel (FRK) supplied to Tamil Nadu Civil Supplies Corporation is entitled to concessional rate of tax under notification 39/2017-CTR only from 01.10.2021: AAR

++ Cus - Merely because Section 27 of Customs Act provides for a period of limitation for filing refund claim, it cannot be held that even for purposes of claiming refund in terms of Notfn, same limitation has to be applied: CESTAT

++ ST - Service of construction as meant for agriculture produce is duly covered under negative list to take such construction out of the scope of taxability, demand has therefore, wrongly been confirmed: CESTAT

January 10, 2022

++ GST - Petitioner is permitted to file once again, rectified TRAN-1 Form electronically or manually: HC

++ Cus - Refund of IGST - Inaction on the part of the department to dispose of claim filed in March 2021 - Orders to be passed within six weeks: HC

++ ST - Payment of tax under reverse charge by utilising CENVAT - Explanation added to Rule 3(4)(e) of the CCR, 2004, disallowing such utilisation is w.e.f., 1.7.2012 only: HC

++ GST - Part recovery of charges from employees in respect of transport facility provided to them would NOT be treated as 'supply' - no tax payable: AAR

++ GST - Floor on rent - Electricity charges and Water charges paid by Applicant-Licensor as per meter reading and collected from recipient-Licensee at actuals on reimbursement basis is liable to GST: AAR

++ ST - When no positive evidence has been adduced in SCN to show any wilful suppression of fact on the part of appellant with an intent to evade payment of tax, demand cannot be sustained: CESTAT

++ Cus - The goods which were allowed to be redeemed were also found to be undeclared/misdeclared for which penalty is imposable under Section 114A of Customs Act, same is upheld: CESTAT

++ CX - When cross-examination of witnesses is not allowed u/s 9D of CEA, 1944 then, those statements should not be relied upon for fastening duty/tax liabilities: CESTAT

++ CX - Assessee is not required to pay any amount under Rule 6(3) in respect of LPG cleared under exemption under PDS, therefore, amount paid by them was liable to be refunded: CESTAT

January 08, 2022

++ VAT - Remand order passed by Tribunal is not justified as all relevant materials exist on record before it : HC

January 07, 2022

++ Cus - Tribunal appears to have abdicated its authority to decide and dealt with the matter at a superficial level - Matter remanded: HC

++ GST - Harassment by authorities of the State cannot be tolerated - Cost imposed of Rs. 15000/- which may be recovered from erring officer: HC

++ GST - Mistake in TRAN-1 - Revision of declaration u/s 120A - No coercive action till Commissioner decides on the application: HC

++ GST - By way of filing applications for recalling the orders, applicants have indirectly requested Court to review its own judgment, which is not permissible: HC

++ GST - IPR, 2007 - State government appears to have done a U-turn without justification - No material whatsoever has been placed on record to establish that resolution is in public interest - Costs imposed: HC

++ CX - Though construction service was excluded but since modernization, renovation and repair and maintenance is still continue to be existed in inclusion clause of definition, credit shall be allowed : CESTAT

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

++ Cus - The entire proceedings initiated by Additional Director General, DRI by issuance of SCN is without any authority of law and therefore, same is set aside :CESTAT

January 06, 2022

++ GST/CX - Tax on Tobacco & Tobacco products - Sources of power under Article 246A and 246 are mutually exclusive and could be simultaneously exercised: HC

++ GST/CX - While it is the aspect of 'supply' which is the consideration while levying tax under GST, it is the aspect of 'manufacture' that is of consideration while levying excise duty: HC

++ GST/CX - Taxation is not merely a source of raising revenue but is also recognised as a tool to achieve fiscal and social objective: HC

++ Cus - Government is supposed to be a fair litigant - Egregious on the part of Customs department to raise the argument that consent was not given for plea bargaining: HC

++ Cus - Government is supposed to be a fair litigant - Egregious on the part of Customs department to raise the argument that consent was not given for plea bargaining: HC

++ Cus - Compounding of offence & Plea bargaining - Presence of Section 137(3) of the CA, 1962, will not take away the applicability of Chapter XXIA Cr.P.C : HC

++ Cus - Responsibility of refund of TED would be that of the Authority responsible to implement the FTP: SC LB

++ GST - Frozen bank account - Petitioner should approach authority who has issued garnishee notice for recalling the same and/or appellate authority for expeditious disposal of appeal: HC

++ GST - Communications in Form GST REG-03 are merely a proposal setting out the reasons why request of petitioner cannot be accepted - It is for petitioner to respond to the same: HC

++ GST - Wrong availment of ITC - Amount paid by petitioner during investigation to be treated as paid Under Protest - SCN to be issued within six months and appropriate orders within a year: HC

++ CX - Where a provision is inserted by way of substitution, it is deemed to have been inserted w.e.f. the date of original statute, unless otherwise provided: CESTAT

++ ST - In case of violation of condition of notification which is in the nature of procedural lapse, the substantial benefit of exemption notification cannot be denied: CESTAT

++ Cus - Merely because Section 27 of Customs Act, 1962 provides for a period of limitation for filing refund claim, it cannot be held that even for purposes of claiming refund in terms of Notfn, same limitation has to be applied : CESTAT

++ CX - Since appellant company has fraudulently availed credit without receipt of goods, it is not possible without knowledge of Director, therefore, Director is directly involved in fraudulent availment of credit by his company: CESTAT

January 05, 2022

++ VAT - High Court erred in entertaining assessees' writ petitions where option of appeal to First Appellate Authority was available; orders quashing assessment orders are unsustainable: SC

++ GST - Demand raised is in excess of Rs.2 crores - It cannot be said that Additional Commissioner is not the 'proper officer' competent to issue the impugned SCN: HC

++ GST - Petitioner is entitled to have his appeals that were filed manually, to be treated as having been filed within time, in the light of the failure of department to upload order on web portal: HC

++ PC Act - Exoneration in departmental inquiry cannot draw an iron curtain - No interference is warranted on FIRs and on criminal cases: HC

++ GST - Service of order -  When a statute enacts that something shall be deemed to have been done, the Court has a duty to give effect to that fiction: HC

++ GST - Petitioner's right to pursue an appeal cannot be curtailed solely on account of non-receipt of an order or loss of an order, if law otherwise permits him to pursue the appeal: HC

++ Cus - Merely because Section 27 of Customs Act provides for a period of limitation for filing refund claim, it cannot be held that even for purposes of claiming refund in terms of Notfn, same limitation has to be applied: CESTAT

January 04, 2022

++ GST - 'Diagnostic and laboratory reagents' classifiable under heading 3822 attract tax @12%: AAR

++ GST - Setting up of Wet Limestone FGD plant [SAC 995429] attracts tax @12% and its Operation & Maintenance [SAC 9985] is chargeable to tax @18% - Combined service is not a composite supply: AAR

++ GST - Body building activity on the chassis provided by principal is a composite supply with principal supply being supply of body of the vehicle: AAR

++ ST - Non-service of SCN contravenes statutory mandate; SCN quashed, particularly where no explanation given for its non-service: CESTAT

January 03, 2022

++ Cus - Since the decision of first appellate authority was based on foundations which remain unverifiable, matter remanded to be heard afresh

++ CX - Since nature of construction done in factory is of Renovation and Modernization of existing factory which is covered under inclusion clause of definition of input service, therefore, appellant was entitled for Cenvat Credit of such input service.

++ ST - Mere procurement of land from the farmers and getting necessary approval from government authorities will not create a tax liability under taxable category of 'service'

++ ST - Since the SCN has been issued beyond the period of limitation of one year, demand against the appellant is not sustainable

January 01, 2022

++ GST - Respondent sought to take advantage of its own wrong and deprive the petitioner of its rights under the scheme - Stand of respondents is fallacious as it is not only without substance but clearly illegal: HC

++ ST - Whether taxable service provided - Matter involves disputed question of facts - Petitioner has an alternate remedy by way of an appeal - Petition dismissed: HC

++ GST - Supply of warehoused (FTWZ) goods to any person before clearance for home consumption - Such transactions by virtue of Entry 8(a) of Schedule III do not attract tax: AAR

++ CX - Appellant bought out paint and supplied the same alongwith tower at site on which they have paid duty in value of tower itself, therefore, they are entitled to avail cenvat credit: CESTAT

++ ST - Since the charges for job is on per container basis and appellants are not collecting fixed wages against providing the manpower, said activity cannot fall under Manpower Recruitment service: CESTAT