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Untitled Document

TODAY'S CASE (INDIRECT TAX)

Taxindiaonline.com



Sept 30, 2022

++ Cus - When goods are held not confiscatable under Section 111(d) ibid, then it can be reasonably held that import was not prohibited: CESTAT

++ ST - Restoration of relationship of provider-recipient is contingent upon such additional fee which cannot be anything other than consideration for continuance of 'taxable service' and therefore, liable to service tax: CESTAT

Sept 29, 2022

++ GST - Renting of a residential dwelling by a proprietor of a proprietorship firm for use as residence is exempt - Board clarifies in affidavit; informs that amendment to 4/2022-CTR being contemplated: HC

++ GST - Access to Business premises - Authorization given by Jt. Commr . to Dy./ Asstt . Commr . pursuant to Notification issued by Chief Commissioner in terms of s.2(91) cannot be faulted: HC

++ GST - Cancellation of registration - Next to nothing is stated in SCN - Ironically, onus is put on petitioner to demonstrate that registration has been obtained by fraud - Order set aside: HC

++ GST - Waiting for Godot - State has been waiting, much past the time of filing appeal - Tantamount to a conscious decision to let limitation slip: HC

++ GST - Argument that since appeal requires a deposit of only 10%, order of Single Judge imposing a condition of furnishing BG of 25% is harsh, is without basis since appellant has chosen to file WP instead of participating in adjudication proceedings: HC 

++ GST - s.54(3)(ii) is absolutely unambiguous and does not carve out any exception that ITC under Inverted Tax Structure would not be applicable where input and output goods are same: HC

++ GST - Circular 135/05/2020-GST dt. 31.03.2020 is repugnant and conflicting to parent legislation Section 54(3)(ii): HC

++ GST - Mango Pulp attracts tax @12% and not @18%: HC

++ VAT - Taxability of sand lime bricks - Assessments relating to 2014-15, 2017-18 to be completed within 16 weeks: HC

++ CX - Since there is no requirement as per Cenvat Credit Rules that input services should have been received in registered premises of appellant, the case made out cannot be sustained: CESTAT

++ CX - Neither shortage/ excess of one or more of raw material nor unaccounted finished goods found lying in premises of manufactures can lead to inevitable conclusion of clandestine manufacture and removal: CESTAT

++ Cus - The ground on which penalty has been imposed on appellant i.e he was keeping silent about illicit activities of duty officer, is not a valid ground for imposition of penalty under Section 117 of Customs Act: CESTAT

++ ST - Since the service was received by appellant and invoice is in their name only, there is no need of any ISD invoice and appellant have correctly availed the credit: CESTAT

++ ST - Premium charged by respondent from its customers due to interest restructuring of loans - not liable to tax under BOFS: CESTAT

Sept 28, 2022

++ GST - Allegations levelled in SCN should be clear and specific and the findings cannot go beyond the allegations as levelled: HC

++ CX - Cenvat credit of service tax on inputs like MS Angles/beams/bars/plates which go into fabrication of structures embedded to earth are to be treated as inputs used in relation to final products: CESTAT

++ ST - Unless and until the clear analysis of activity done by assessee is carried out, demand of service tax cannot be confirmed: CESTAT

++ ST - It was a mandate upon Department to sanction refund of amount as was deposited under Section 35F of Central Excise Act : CESTAT

Sept 27, 2022

++ VAT - Amendment to Section 25(1) of KVAT Act substituting words 'five years' to 'six years' is prospective in nature: HC

++ VAT - Re-assessment by AO under DVAT is barred, once assessment had been carried out under CST Act: HC

++ CX - In case of manufacture and sale of Physician Sample, valuation is governed under Section 4(1)(a) of CEA, 1944: CESTAT

++ Cus - Condonation of delay by Commissioner (A) is a discretionary power that can only be exercised favourably in event sufficient cause is shown for such delay: CESTAT

Sept 26, 2022

++ GST - Allegation is that petitioner, a young man pursuing his studies, is an active accomplice to his father, accused of evasion of tax - No  prima facie  case against petitioner - Fit case for grant of anticipatory bail: HC

++ GST - Since petitioner has remitted 50% of disputed tax, he is permitted to furnish a personal bond in respect of balance of tax and penalty: HC

++ CX - If Revenue had any objection to O-I-O they should have preferred an appeal before appropriate authority, by way of issuing second SCN they could not have denied benefit granted to appellant in first round of proceedings: CESTAT

++ Cus - In absence of evidence that product imported by appellant has been chemically modified or it is not known as HDPE in market, benefit of exemption under Sr. No. 477 of Notfn 21/2002-Cus has to be extended to appellant: CESTAT

Sept 24, 2022

++ Cus - Appellant unsuccessful in showing any provision under FTP in terms of which endorsement of certification by main contractor was envisaged sufficient for purpose of refund of TED: HC

++ NDPS - If contraband seized falls within the provisions of NDPS Act, the weight of neutral substance would not be ignored while determining the nature of quantity seized: HC

++ Cus - Anti-dumping duty - Final findings - Petitioner to re-submit representations to ensure that they reach Designated Authority - No opinion expressed on merits: HC

++ ST - SVLDRS, 2019 - Petitioner, a cancer patient - Leeway for extension of time limit for payment of amount declared - Authority to examine merits of representation: HC

++ ST - Whether component of interest levied due to late deposit of tax dues, can be waived under SVLDRS, 2019 - Conflicting views - Competent authority to apply mind and decide: HC

Sept 23, 2022

++ VAT - State of Andhra Pradesh cannot retain central sales tax paid by assessee on transaction of inter State sale with respect to vehicles sold to APSRTC, which was actually payable to State of Jharkhand: SC

++ Cus - Notf. 1/2022-Cus(CVD) dt. 01.02.2022 rescinding countervailing duty imposed by Notf. Dt. 07.09.2017 was an irregular and illegal exercise - Sequitur would be that it would revive the effect of original notification: HC

++ Cus - It is trite that any order of the court does not extend in vacuum or without bringing for the subjects it would govern, necessary consequences: HC

++ GST - Cancellation of registration - SCN gives no clue of infractions; order is bereft of reasons - Entire proceedings, right up to the stage of passing of O-in-A legally flawed - order set aside: HC

++ GST - Blocking of ITC lying in the Electronic Credit ledger - Genuineness of purchases and tax paid being ascertained - Appropriate decision to be taken soon, assures Revenue counsel - Petition disposed of: HC

++ GST - Construction of Airport Terminal building, Greenfield airport, prison, museum, residential school are work contract services attracting tax @18%: AAR

++ Cus - Confiscated goods can be released provisionally u/s 110A, only in favour of owner of such goods: HC

++ CX - Since appellant took over other's business at a much later date from date of procurement of inputs, benefit of cenvat credit of service tax on reimbursable expenses shall not be available to appellant: CESTAT

++ Cus - Classification adopted by assessing authorities fails in face of specific entry which the respondent has not been able to demonstrate as having been excluded from claimed description: CESTAT

Sept 22, 2022

++ GST - More than two years have passed since the provisional attachment was ordered of subject bank account, said attachment order cannot survive: HC

++ GST - 'Kingfisher Radler' is a Carbonated beverage; attracts GST @28% along with Compensation Cess of 12% - FSSAI regulation no guide to decide classification: AAR

++ GST - No ITC available on 'vouchers' issued free of cost to customers under loyalty program: AAR

++ GST - Bus air-conditioning system is classifiable under heading 8415 2010: AAR

++ GST - Printing leaflets for Pharma sector - Where inputs are supplied by recipient of services, tax payable is @12%: AAR

++ GST - Transfer of development rights to developer is consideration for supply of construction service - Liability to pay tax is at the time of transfer of possession of complex/flat: AAR

++ GST - Classification - brand new Aluminum sections cannot be placed on equivalence with Aluminum scrap, as declared by importer; SCN is appealable - writ petition not maintainable: HC

++ SVLDRS - Rejection of petitioner's application is illegal where notice for providing documents to conduct audit was issued belatedly: HC

++ CX - Credit of Service Tax paid on insurance premium on group insurance policy is allowable since the said service is an eligible input service: CESTAT

++ CX - Mere shortage of receipt of coal cannot ipso facto lead to allegation of clandestine removal: CESTAT

++ Cus - Refund arises only after amendment of bills of entry therefore, relevant period of one year should be reckoned from date of amendment and not from date of actual payment of duty: CESTAT

Sept 21, 2022

++ VAT - HC should refrain from entertaining writs against assessment orders by passing statutory remedies: SC

++ Cus - Once the bond is furnished to revenue, concerned authority will release the subject gold, at the earliest: HC

++ Cus - Revenue is directed to furnish copies of all such documents which are in their physical possession after which petitioner shall file their final reply within two weeks: HC

++ ST - Since both sides agree that issue regarding availment of CENVAT Credit and imposition of penalty should be looked into afresh by original authority, matter remanded: CESTAT

++ ST - Since there is violation of principles of natural justice, matter should go back to original authority for fresh adjudication of the issue by giving opportunity to appellant for presenting its case: CESTAT

++ CX - The amendment made in Credit Rules on 07.07.2009 to restrict credit on structural items cannot be considered to be retrospective in nature: CESTAT

Sept 20, 2022

++ UP Trade Tax - Sec 34 can be exercised only if transfer of immoveable property belonging to original assessee is made during pendency of proceedings, with intention to defraud Revenue: SC

++ CX - Bench strength is determinative of binding nature of the Judgment; numerical strength of the Judges taking a particular view is not relevant: SC CB

++ GST - Petitioner to furnish Bank guarantee for the ITC amount allegedly fraudulently taken - Attachment of current account with Axis bank to be lifted thereafter: HC

++ GST - Technical error in portal - Loss due to non-transition of ITC - SC decision in Filco Trade governs petitioner's rights: HC

++ GST - Filing of TRAN-1 in the light of apex court directions - No recovery of tax and penalty now as 90 days given for adjudication: HC

++ Cus - Quantity of liquid import cargo should be taken on actual shore tank received basis and not on the basis of invoice: CESTAT

++ CX - If assessee has not received the amount from buyers, it cannot be held, that he will be unjustly enriched: CESTAT

Sept 19, 2022

++ GST - Interest liability - Credit cannot be equated with cash remittances: HC

++ GST - Proviso to s.50 cannot be rewritten - Risky, from revenue view-point, to state, as a general proposition that mere availability of electronic credit should insulate assessee from interest: HC

++ GST - In view of notification 13/2022-CT, period from 01.03.2020 to 28.02.2022 stands excluded from limitation period - Refund claimed for the month of February 2018 in May 2020 is, therefore, not hit by limitation: HC

++ Cus - Once the goods are exported, Indian Customs has no control over goods and therefore, they cannot be confiscated: CESTAT

++ ST - Services provided by appellant amounts to export of service as were received by company located outside taxable territory irrespective those were group companies of appellant: CESTAT

Sept 17, 2022

++ CX - MODVAT - Classification of a product done at the consignor's end shall be final and that cannot be changed/questioned at the consignee's end: SC

++ CX - Guide car [8603] is not a part of the Coke Oven battery - Credit rightly denied: SC

++ Cus - Once the duty is assessed and paid and proper officer makes an order permitting clearance of goods for home consumption under section 47, assessment is completed, goods cease to be 'imported goods' as per section 2(25): CESTAT

++ ST - Demand raised under Commercial or Industrial Construction Service will not sustain being proposed and confirmed under wrong classification whereas services are correctly classifiable under works contract service: CESTAT

Sept 16, 2022

++ GST - Instruction 2(l) in Circular 41/15/2018 cannot go against the grain of statutory provisions: HC

++ GST - Statute consciously leans towards giving an opportunity to the wrongdoer to rectify his wrongs voluntarily: HC

++ GST - Empowering officer to invoke power of confiscation u/s 130 after he has invoked power of detention u/s 129 amounts to nullifying the right available to owner to get goods and conveyances released: HC

++ Cus - Use of aircraft has been in accordance with scope of non-scheduled (passenger) services and there is no violation of undertaking to use aircraft for non-scheduled (passenger) services: CESTAT

++ CX - When there is no dispute with regard to service availed by appellant and service tax paid by them, credit cannot be denied at service recipient's end: CESTAT

++ ST - An invoice issued by a provider of input service is a valid document for availment of Cenvat credit: CESTAT

++ CX - When there is no dispute that there is excess payment of duty due to bona fide mistakes, refund must be granted to appellant after verifying the facts as regard unjust enrichment: CESTAT

Sept 15, 2022

++ GST - Entitlement to seek release of goods u/s 129 has been carefully and consciously sculpted and is only qua the owner/agent/representative of the owner and not the transporter: HC

++ GST - Refund application cannot be said to be time barred since notification 13/2022-CT has excluded the period from 1st March 2020 to 28 February 2022 for computing limitation period: HC

++ ST - Renting/leasing of shops for a consideration by Mandi Samiti is another method of regulation of Mandi area; cannot be categorised as business/commercial activity - Exemption rightly extended: HC

++ GST - Uttar Pradesh Jal Nigam is a governmental authority - Works Contract Services provided to it by the applicant attract tax @18%: AAR

++ Cus - Department has not made out any case for suspension of custom broker license, as action was too much delayed and does not display any urgency, suspension of license is revoked: CESTAT

++ CX - Since refund claim was filed well within the time limit of 1 year as prescribed under Section 11B of CEA, 1944, same is clearly not time barred: CESTAT

Sept 14, 2022

++ GST - Law Professor providing service - Since last date for filing Appeal was 21.03.2022, only the period from date of communication of order till 28.02.2022 is excludible as per apex court judgment - appeal dismissed since delay is beyond condonable period: AAAR

++ GST - Construction of road and supply of construction of utility services are independent Works contract services and not a composite supply - chargeable to GST@18%: AAR

++ GST - Fraudulent ITC of 36 crores - Even in case of allegation of grave economic offence, it is not a rule that bail should be denied - Bail granted: HC

++ CX - Since Cess on Paper is not a duty of excise, provisions of Section 11B of Central Excise Act would not apply: CESTAT

++ ST - When the amount of discount is not related with service, still applying section 66 D of Service Tax Act for confirming service tax on this amount, is therefore held to be a wrong finding: CESTAT

++ CX - The goods roller and ball bearings would be classified under heading 8482 and same cannot be classified as parts or components of other machines or vehicles: CESTAT

++ ST - Since services are specified for refund purposes and tax was actually paid on 'specified service' pertaining to export activity, in terms of particular scheme of refund under Notfn 41/2012-ST, exporter is eligible for refund: CESTAT

Sept 13, 2022

++ GST - Roving squad works 24x7; knows no distinction between working and non-working days - Expression '7 days' in s.129(3) for issuance of SCN cannot exclude holidays - no impact of s.10 of Act, 1897: HC

++ GST -  To say that Form GST MOV-02 would tantamount to be an order of detention is entirely misconceived: HC

++ Cus - Revenue failed to bring on record any material evidence to justify imposition of penalty, more so when they did not even allege that act or omission on part of appellants led to confiscation of goods: CESTAT

Sept 12, 2022

++ CX - Appellant is entitled to Cenvat credit as inputs on HR Coils/Sheets and welding electrodes used in repair and maintenance of capital goods: CESTAT

++ ST - Lower authorities had not considered the manner in which reversal was to be handled and that 'exempted services' should have been basis for determining ineligibility for continued maintenance of credit availed: CESTAT

Sept 10, 2022

++ CX - In absence of circumstances mentioned in Sec 9D, truth of facts contained in statement made in course of inquiry before Gazetted Excise officer, must be proved by evidence other than statement itself: CESTAT

Sept 09, 2022

++ GST - Rule 25 of CGT Rules - Petitioner firm's registration cancelled without serving notice of inspection of business premises - Presence of AR enhances authenticity of inspection report - Cancellation order to be revoked: HC

++ CX - 10 years after issuance of SCN and submission of reply thereto - Assessee is justified in taking the view that reply is accepted and authorities had given a quietus to the matter: HC

++ Cus - Appellant has filed a representation to Inquiry Report but it has not been considered, matter remitted to Commissioner for passing a fresh order considering the representation: CESTAT

++ CX - Assessee is entitled to CENVAT credit to the extent the inputs are used for production of electricity which is transferred free of cost to its sister unit: CESTAT

++ ST - Overriding nature of exemption afforded by section 26 of SEZ Act, 2005 and breach of conditions being procedural, demand pertaining to rendering of services is set aside: CESTAT

++ CX - Since there is no allegation of misutilization of inputs or that these were used for manufacture of non-entitled output goods, no justification found for denying credit or imposition of penalty: CESTAT

Sept 08, 2022

++ CX - Plastic moulded furniture rejected by distributors - 'Value' of the raw material cannot be considered as the 'value' while determining the refund under rule 173L: SC

++ GST - Seed dressing, coating and treating drum machine is correctly classifiable under HSN 8436 8090 and attracts tax @12%: AAAR

++ GST - Service of Renting of Motor Vehicle to Ahmedabad Municipal Corporation for use by administrative department team is not public health care work - exemption under 12/2017-CTR unavailable: AAR

++ GST is not leviable on amount representing employees portion but is leviable on amount representing contractual worker portion, which is collected by applicant and paid to Canteen service provider: AAR

++ GST - Activity of fabrication and mounting of Tanker and Tipper on the chassis supplied and owned by the principal is supply of Service; SAC 998882; @18%: AAR

++ GST - Suspension of registration without hearing - challenge to omission of words by notification 94/2020-CT - ad interim stay granted: HC

++ ST - Transportation services cannot be classified under GTA services where consignment notes are not issued by transporters: CESTAT

++ ST - Demand of an amount under Rule 6(3) of CCR cannot be sustained even if appellant was rendering exempted services and had taken CENVAT credit on common inputs/input services: CESTAT

++ CX - Clandestine removal is serious charge and requires to be substantiated by evidence encompassing various activities in chain of events, in absence of evidence, allegations raised by department are not substantiated: CESTAT

Sept 07, 2022

++ Cus - Since lower authorities have relied upon Panchnama under which various documents were recovered and used as evidence against appellant, cross-examination of Panch witnesses should be allowed: CESTAT

++ ST - Extended period of limitation is not invokable when there is no failure on the part of assessee to discloses taxable turnover and depositing the admitted taxes: CESTAT

++ CX - Assessee have duly accounted for cash seized from their premises and as they have not dealt in any manner with goods that can be held liable for confiscation, no penalty is imposable on them: CESTAT

Sept 06, 2022

++ Cus - Recovery of dues cannot be made while appeal of petitioner is pending consideration before Tribunal - Monies obtained by Revenue by encashing BGs to be returned: HC

++ GST - Non-filing by due date - Right of filing TRAN-1 governed by apex court decision dated 22nd July in Filco Trade Centre: HC

++ Cus - Petroleum products - There is no material for taking a different view of the observation of Tribunal that the purpose of legislation of sections 28B/11D is fulfilled by the APM Scheme: HC

++ GST - Numerical error in filing TRAN-1 - Right of filing revised TRAN-1 governed by apex court decision dated 22nd July in Filco Trade Centre: HC

++ CX - Dredging service received by appellant for construction of navigation channel is an input service and credit is allowed : CESTAT

++ ST - Service of Commercial or Industrial Construction is composite in nature; service component cannot be seperated for purpose of raising service tax demand: CESTAT

Sept 05, 2022

++ GST - GSTN is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months: HC

++ Cus - DGFT will issue a manual MEIS scrip and same would be honoured by ICD-Tughlakabad Customs without insisting on electronic transmission of the same: HC

++ GST - Expired e-way bill - Another vehicle requisitioned to transport goods as earlier vehicle broke down - Not a case where tax was sought to be evaded - Matter remanded: HC

++ GST - Expired e-way bill - Case  warrants imposition of only a minor penalty as contemplated under Circular 64 of 2018 - Tax and penalty imposed is perverse and illegal warranting interference: HC

++ GST - 197 crores cash seized is admitted as proceeds of clandestine supply -  A prayer for bail is not to be denied merely because sentiments of the community are against the accused: HC

++ CX - Since the issue has been decided by authorities dropping demands for earlier period on same issue, appeal cannot be sustained without any challenge to earlier orders: CESTAT

++ ST - Transportation of coal from pit-heads to railway sidings within mining areas is more appropriately classifiable under head 'transport of goods by road service' and does not involve any service in relation to 'mining of mineral, oil or gas': CESTAT

Sept 03, 2022

++ CX - Even if activity undertaken by assessee does not amount to manufacture, CENVAT Credit availed on inputs cannot be denied when output duty has been paid on final product: CESTAT

Sept 02, 2022

++ GST - Attachment of bank accounts - Order passed in a most arbitrary and illegal manner and in complete disregard of s. 83 r/w rule 159 and the law laid down by apex court - Order quashed with exemplary cost to be paid by Commr., CGST, Ghaziabad: HC

++ GST - Component of GST shown in draft estimate is the cost borne by M/s UPCL & M/s PITCUL on supplies received from vendors - Transaction value is correctly arrived in respect of Works Contract: AAR

++ GST - Transportation facilities to employees - Service provider is using MV having an approved seating capacity of more than 13 persons (including driver) - ITC available: AAR

++ GST - Kudumbasree is acting only as an agent in collecting premium and disbursal of benefit to members - Applicant KSID is, in essence, providing services of insurance - Exempted by 6/2017-CTR: AAR

++ ST - Price of weighing machines included installation and commissioning  charges and on the entire transaction value, CE duty has been discharged - Appellant cannot be taxed separately as a service provider u/s 65(39): CESTAT

++ ST - Extended limitation is invokable only if suppression of facts is deliberate with intent to evade payment of tax: CESTAT

++ Cus - Where there is nothing to prove that amount which is sought to be confiscated is sale proceed of smuggled goods, that must be returned to person from whom it is seized and authorities are not empowered to take said money into custody: CESTAT

Sept 01, 2022

++ GST - Work on housing project commenced in June 2018 - Merely because there were no bookings till 31st March 2019 does not make it an 'Other than ongoing project': AAR

++ GST - Two distinct agreements, one for sale and one for completion of semi-finished works -any agreement which is beyond the scope of initial agreement and is a severable agreement, then the construction made under this contract will attract 18% tax with ITC: AAR

++ ST - Since appellants had paid the amount under protest and SCN was issued to them within less than a month, same cannot be said to be hit by bar of limitation: CESTAT

++ ST- While filing the refund claim claimant has to debit the amount claimed by him as refund under Rule 5 from his CENVAT Account: CESTAT

++ CX - Appellant shall be entitled to interest under Section 35FF @ 12% p.a. from the date of deposit till date of grant of refund: CESTAT

++ Cus - Appellant is entitled to grant of interest @ 12% p.a. under Section 129EE of Customs Act, for period from date of deposit till date of refund: CESTAT