TODAY'S CASE (INDIRECT TAX)

January 31, 2023

++ ST - SVLDRS - While finalizing computation, Designated Committee ought to have deducted 'interest' deposited prior to issuance of SCN: HC

++ ST - SVLDRS - Interpretation of provisions should be to carry forward the object rather than to frustrate - Pragmatic view needed: HC

++ GST - When time limit for issuance of order under s.73(10) has been extended up to 30.09.2023, SCN can also be issued with reference to this date and not with reference to any other date: HC

++ Cus - 'Actual User' is defined to mean a person who utilizes imported goods for manufacturing in his own industrial unit or manufacturing for his own use in another unit - V-23 and M-3 are units are of same person - No breach of EXIM Policy: HC

++ CX - When appellant was prevented from deposit of dues, due to glitch on portal, which is wholly attributable to inaction on part of Revenue, thus, Revenue cannot take advantage of its wrong doing by levy of interest: CESTAT

January 30, 2023

++ VAT - refund payable to assessee cannot be held up when time limit for assessment & re-assessment has lapsed & any such proceeding is not pending : HC

++ Cus - In view of town seizure, Customs Department failed to lead evidence in support of allegation as to smuggled nature of goods, Revenue is directed to release the goods: CESTAT

January 28, 2023

++ Cus - A demand can be made under Undertaking only when DGCA finds that use of aircraft is not in accordance with permit granted by DGCA: CESTAT

++ CX - Since exemption notfn 30/2004-CE is not an absolute notification but a conditional notification, therefore bar of lapsing of credit shall not apply: CESTAT

++ ST - Since construction service was provided under Jawaharlal Nehru National Urban Renewal Mission, the service tax is not leviable to such project: CESTAT

January 27, 2023

++ GST - Petitioner is having efficacious remedy to contest the show cause notice before the adjudicating authority - Petition dismissed: HC

++ ST - SVLDRS, 2019 - There is nothing on record to show that last date was extended beyond 30.06.2020 - Rebated amount paid on first/second July, 2020 is of no avail since it was after the last date statutorily mandated: HC

++ Cus - CESTAT order dated June 2022 to be complied by Adjudicating Authority by passing detailed speaking order within a period of two months, without fail: HC

++ GST - Neither the SCN nor the order of demand clearly sets out the reason for imposing the tax liability as well as penalty - Matter remanded: HC

++ GST - Blatant case of breach of principles of natural justice and total non-application of mind - Personal hearing is mandatory before passing any adverse order: HC

++ GST - No confiscation without seizure - Once the goods are to be treated as seized u/s 67(2), the same would be liable to be provisionally released: HC

++ GST - Notice is issued without application of mind as well as in breach of principles of natural justice qua suspension of registration: HC

January 25, 2023

++ GST - No provision in the GST Act that entitles any officer of GST to merely 'resume' cash from petitioner's residence: HC

++ GST - Seizure is limited to goods liable for confiscation - Cash does not fall within the definition of goods: HC

++ GST - Petitioners had not handed over cash [Rs.1.23 crores] to the officers voluntarily - action taken by the officers was a coercive action: HC

++ GST - Cash galore - WhatsApp chats fixing the time and venue for the meeting are rather cryptic - One of the officers had met the petitioners on more than one occasion - Officers to remain present in Court: HC

++ GST - There does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill - Order of detention quashed: HC

++ GST - Supply of mobile recharge coupons and DTH recharge vouchers to recipients, who are located in other States - Tax already paid as being inter-state supply - Further demand by treating supply as intra-state put on hold: HC

++ ST - Non-mentioning of credit availed in ST-3 return is only a procedural lapse for which substantial relief cannot be denied to assessee:CESTAT

++ CX - When there is no dispute regarding duty paid character and receipt of goods, substantive benefit cannot be denied on procedural grounds:CESTAT

January 24, 2023

++ GST - It is not the law that the moment an issue of jurisdiction is raised, the authority is rendered powerless - Rule 159(5) procedure to be followed: HC

++ GST - Cancellation of registration - Base order is on a very weak edifice - Order is absolutely cryptic, non-speaking and contrary to settled position of law: HC

++ GST - Sawn timber, a natural produce, upon exposure to fury of weather may deteriorate - Authority to permit appellant to provide tarpaulin - Appellant to answer allegations levelled in detention order: HC

++ Cus - Circular 36/2010 looks more like guidelines for the Officers u/s 149; cannot be construed as a regulation issued under the Act: HC

++ Cus - There is no disputed question of fact for verification by appellate authority vis-a-vis subject BE and relegating petitioners to work out the remedy of appeal is avoidable: HC

++ GST - It is quite evident that the attempt of State is to re-agitate same issue as was raised and considered in original round of litigation - Review is not the appropriate remedy: HC

++ CX - The court below has failed to take notice of transitory provisions under CGST Act, refund claim is not barred by limitation, Adjudicating Authority is directed to grant the refund along with interest: CESTAT

January 23, 2023

++ GST - Opportunity of personal hearing is to be provided when any adverse decision is contemplated, even without any request for personal hearing on the part of the party concerned: HC

++ GST - Cryptic and non-reasoned order - Respondent to issue a fresh SCN by incorporating details and thereafter to provide reasonable opportunity of hearing: HC

++ CX - Once Resolution Plan is approved and order has been given under IBC Code, which has been also confirmed by NCLAT, same would have an overriding effect over all other laws including CEA, 1944 and, therefore, appeal does not survive: HC

++ Cus - Petitioner is unpaid seller and wishes to take back the goods - However, Respondent has initiated auction - Buyer to be impleaded, notice issued: HC

++ Cus - Refund claim of security deposit is not governed by provisions of Section 27 of Customs Act and consequently, lower authorities have clearly erred in rejecting refund by invoking provisions of Section 27(1) ibid: CESTAT

++ Cus - If goods are confiscated and allowed redemption on payment of fine such fine has to be recovered from appellant and some security is necessary to cover it if goods are to be released provisionally before adjudication itself: CESTAT

++ ST - Approval of input services by approval committee is only a procedural requirement and due to this procedural lapse, refund cannot be rejected under Notfn 15/2009: CESTAT

++ CX - Amount of Redemption fine which was appropriated from bank guarantee executed by appellant at the time of provisional release of goods cannot be treated as cenvat credit: CESTAT

January 21, 2023

++ GST - Applicant, while working as a 'Project Implementing Agency', is making supplies to State Government Department/Directorate and, therefore, is required to issue tax invoice on contract value: AAR

++ GST - Work being undertaken as a sub-contractor for conversion of Short Welded Rails to Long Welded Rails by Flash Butt Welding process along with supply of labour services shall be treated as composite supply of services; taxable @18%: AAR

++ GST - To qualify as a 'going concern', the business must not have 'intention or necessity of liquidation or of curtailing materially the scale of the operations': AAR

++ GST - Insufficient information - It is not possible for the Authority to figure out whether services which have mentioned in application are covered under Health Care Service or otherwise: AAR

January 20, 2023

++ ST - Definition of taxable services was expanded with effect from 1.7.2010, therefore, demands for the earlier period cannot sustain: SC

++ GST - 'Sneha', 'Snehalata ' and ' Snehadhara ' package services of regular medical monitoring along with other logistic support provided by start-up to its members - Supply is not exempted but chargeable @18%: AAR

++ GST - Supply of Parking space along with apartment is not a composite supply - such supply of car parking space is taxable @18%: AAR

++ GST - Post Occupation Certificate receipt, supply of parking space with apartment is NOT non-taxable: AAR

++ GST - Registration Cancellation - Officers should carefully pen orders and not rely on system generated ones - Those who are willing to be part of tax regime should be given, as far as possible, an opportunity to do so: HC

++ GST - Once order has been passed u/s 129(3), the appropriate remedy is to challenge by way of filing an appeal - Petition dismissed: HC

++ Cus - Seizure of goods - It cannot be said that respondents were solely responsible for the delay - No orders can be passed directing respondent to pay demurrage charges: HC

++ Cus - Calcined Petroleum Coke was free for export-import on day of export, re-import by appellant of rejected goods has to be treated as freely importable under Foreign Trade Policy: CESTAT

++ ST - When assessee discharged entire service tax along with interest soon after the same was pointed out, benefit of Section 73(3) should not have been denied: CESTAT

January 19, 2023

++ GST - ITC - Circular 183 - Wrong GSTIN number shown in Invoices - Error occurred due to bonafide reasons, unavoidable circumstances - Justice oriented approach needs to be adopted: HC

++ GST - ITC accumulation due to inverted tax structure - Inaction in dealing with refund applications - Revenue to take up the same and dispose on merits before 31st March: HC

++ GST - There is nothing to demonstrate that when audit u/s 65 has been kick started by way of a notice, SCN u/s 74 is impermissible - Writ petition does not cut ice or pass muster: HC

++ GST - Rule 26 cannot be rendered redundant - Unless digital signature is put by the issuing authority, that order will have no effect in the eyes of law: HC

++ GST - Gathiya, Khatta Mitha Chevda Mixture, Potato salli, Sev Mamara are correctly classifiable under HSN 2106 9099 and attracts GST @12%: AAR

++ Cus - Since grounds cited are not held to be sufficient cause for reasonably explaining substantial delay of more than two and half years, substantial delay in filing appeal cannot be condoned: CESTAT

January 18, 2023

++ Cus - Weight cannot be the sole factor to determine the factum of portability - Automatic Data Processing Machines with diagonal dimension 18.5 inches is not portable: SC

++ Cus - A-I-O Integrated Desktop Computer is correctly classifiable under 8471 50 00 and is to be valued u/s 4 of CEA, 1944: SC

++ Cus - Classification - Wikipedia is crowd-sourced and user-generated editing model that is not completely dependable and can promote misleading information: SC

++ Cus - If the importer is at fault, demurrage would be liable to be paid - Customs authorities cannot be made to bear this burden: HC

++ Cus - Where assessee through C.A. Certificate and Balance Sheet have shown that amount in question is receivable from department, bar of unjust enrichment cannot be applied upon such assessee: CESTAT

January 17, 2023

++ GST - Activity of Afforestation [plantation of mangrove] is a charitable activity - exempted, if entity is registered u/s 12AA of the Income-tax Act: AAR

++ GST - No clarity on activity proposed to be carried out and insufficient documents submitted - Authority cannot pronounce any ruling - Application not maintainable: AAR

++ GST - Insufficient documents submitted by applicant while seeking advance ruling - AAR cannot pronounce a ruling - Application not maintainable: AAR

++ GST - Readily available food and beverages (not prepared in restaurant) and sold over the counter does not qualify as restaurant services: AAR

++ GST - Supply of Pencil Sharpener along with Pencils is 'Mixed Supply': AAR

++ CX - Storage racks used for storing raw materials is an integral part of final manufacturing activity of assessee and credit has to be allowed: CESTAT

++ CX - The charge of double benefit will sustain only when appellant in one hand claim the refund and in other hand utilise the same amount for payment of duty on their clearance of goods: CESTAT

++ ST - The amount deposited during investigation is ipso facto pre-deposit and interest is payable on such amount to assessee being successful in appeal, from date of deposit till date of refund: CESTAT

January 16, 2023

++ VAT - Appellate authority & Tribunal can always consider new or additional claim with respect to an AY which was not raised by assessee before assessing authority : HC

++ CX - True, Process oil falls in Fourth Schedule to CEA, 1944 but is not excisable since not subject to excise duty - Not hit by embargo of s.125(1)(h) of FA, 2019 - entitled for benefit of SVLDRS, 2019: HC

++ ST - Adjudicating authority is required to consider evidence furnished by appellant that duty liability having been discharged on 'tippers' sourced by them, as now placed on record, before concluding that credit availed therein is ineligible: CESTAT

January 14, 2023

++ Cus - No point in complaining that notice of hearing not sent - Three years ago, a practice was started of uploading all orders, including miscellaneous and daily orders on website: CESTAT

++ Cus - Since 'Starch slurry' is used as immediate input by appellant in manufacturing of its export item-liquid glucose concentrate, it cannot be said that starch was not appellant's input for export item: CESTAT

January 13, 2023

++ CX - Valuation - Costs incurred by buyer after clearance from factory cannot be included in the assessable value: CESTAT

++ CX - Valuation - Advances received much prior to the disputed period could not have possibly influenced the price: CESTAT

++ CX - In remand proceedings, co-noticee ought to have been heard before imposing penalty: CESTAT

++ CX -Tribunal in remand proceedings ordered valuation u/s 11 - Against order passed in denovo proceedings, Revenue cannot now take plea that valuation ought to have been done u/r 7: CESTAT

++ ST - Since sub-contractor was under a bona fide belief that he was not required to discharge service tax liability, extended period of limitation could not have been invoked: CESTAT

January 12, 2023

++ GST - Cancellation of registration - Delayed filing of appeal due to COVID - Business cannot be hampered and made to suffer on mere technicalities of law: HC

++ GST - Notice as provided in Part A of FORM GST DRC-01A was not issued - Any subsequent reminder will not cure inherent defects - Since initiation of proceedings itself is bad, order fails: HC

++ Odisha VAT - penalty u/s 42(5) Odisha VAT Act is straightway attracted once determination of tax payable takes place pursuant to audit assessment u/s 42 of OVAT Act: HC

++ GST - Four out of five pages is a reproduction of ground taken in appeal memo - Only in one paragraph reasoning given - Cryptic order - Matter remitted: HC

++ ST - Value of items supplied free of cost by service recipient to appellant is not to be included in value of mining services provided by appellant: CESTAT

++ CX - Since first appellant had transferred semi-finished goods for machining to second appellant without permission from Department, it is a procedural and technical lapse and same requires imposition of token penalty in terms of Rule 27: CESTAT

January 11, 2023

++ Sales tax - Goods manufactured after diversification must be different goods from goods manufactured before such diversification, for obtaining exemption u/s 4A(5) of U.P Trade tax Act: SC

++ CX - Appellant is not entitled to exemption Notfn 29/2004-CE as amended by Notfn 07/2012-CE as same is available to goods which are made wholly of cotton whereas here, products are not made wholly of cotton: CESTAT

++ ST - Since the role of appellant was limited to being an intermediary in sale of space/ time for media agency on commission basis, demand under category of Advertising Service cannot sustain: CESTAT

January 10, 2023

++ GST - ITC claimed by applicant before AAR pertained to invoices raised by appellants - Before denying ITC, appellants ought to have been put on notice: HC

++ GST - While it is a great judicial virtue to be consistent, it is a greater judicial virtue to be correct - Bench stands corrected - Decision in Shri Tyres case is no longer good law: HC

++ GST - Amendment to Rule 142(1A) -It is not imperative to issue a SCN - Petitioner's campaign stands doused: HC

++ GST - Rule 46 compliance - No reasoning given by lower authorities so as to hold that old and damaged batteries are to be sold according to weight and not per piece: HC

++ GST - Construction of new railway siding is Works Contract and attracts tax @12%: AAR

++ VAT - Interest on tax amount refundable to the assessee, is to be calculated from date on which assessee filed refund claim in prescribed format : HC

++ Service Matter - Department commenced legal proceedings against own employee solely to deny promotion & so displayed conduct of unbecoming manner; CAT order lambasting Department for withholding promotion due to pendency of legal proceedings is upheld: HC

++ CX - Since the original documents are not with Tribunal, therefore, matter remanded to original adjudicating authority to reassess the issue in terms of Rule 5 of Central Excise Valuation Rules: CESTAT

January 09, 2023

++ ST - SVLDRS, 2019 - Non-payment of settlement amount due to moratorium under IBC, 2021 - Appellant cannot be rendered remediless and should not be made to suffer due to a legal impediment: SC

++ GST - It is for the govt. to take a policy decision whether to completely exempt drugs for treatment of  Spinal Muscular Atrophy [SMA]: SC

++ GST - There may be a reason why drugs are to be cleared by CoEs - No mandamus can be issued directing respondents to permit import of SMA drugs without approaching CoEs: SC

++ Cus - SCN issued in 1997 and notice calling for personal hearing was sent in 2015 - Dormant SCN cannot be resuscitated: HC

++ GST - No notice was issued to petitioner requiring his presence at the time of verification of place of business - report also not uploaded - Cancellation of registration improper: HC

++ GST - Now that TRAN-1 has been filed basis SC order in Filco Trade Center, SCN issued for availing ITC without filing form TRAN-1 be kept in abeyance: HC

++ GST - Refund - s.54 - Orders make no reference to which category claims would fall and what would be relevant date i.e. starting point for limitation - Orders quashed and matter remanded: HC

January 07, 2023

++ CX - Even though credit was not utilized but since the credit was wrongly availed, interest is unavoidably chargeable: CESTAT

++ ST - Service of storage after period of three months is purely optional and independent service which can by no stretch of imagination be called technical testing and analysis service, demand cannot be sustained: CESTAT

++ Cus - As the date of dispatch of order is not available with department therefore limitation will start running from date when same was received by appellant: CESTAT

January 06, 2023

++ GST - Appellate authority could have taken into consideration the entire period of Pandemic and condoned the delay in filing appeal: HC

++ GST - Expiry of e-Way bill in transit - Respondent could not establish any element of evasion of tax with fraudulent intent - Seizure of vehicle and goods not permissible: HC

++ ST - SVLDRS, 2019 - So as not to render the petitioner vulnerable and remediless, Bench deems it appropriate to permit petitioner to revive the petition: HC

++ Cus - Continuous detention, surely is not what has been contemplated under law - Procedure adopted by the authority is wholly unknown to the statute: HC

++ VAT - Dismissal of appeal by VAT Tribunal is invalid, where the AO and the VAT Tribunal omitted to consider certain facts w.r.t. inter-State transactions & transport receipts: HC

++ VAT - Dismissal of appeal in limine on grounds of non-prosecution is valid, where VAT Tribunal omits to consider that appellant pre-deposited tax before filing appeal : HC

++ CX - Non registration as ISD in circumstance, where no malafides having found, is not a fact that would disentitle the appellant from Cenvat Credit: CESTAT

January 05, 2023

++ GST - Issues involved are all matters turning on facts; not a fit case for interfering with the impugned notice - Petition dismissed: HC

++ GST - Petitioner has concealed material facts of the case which dis-entitles him to any relief in writ jurisdiction - Cost imposed: HC

++ Cus - NBW received unexecuted - Trial Court was required to issue proclamation against Olga Kozireva for appearance at specified place and at specified time and not drop proceedings: HC

++ ST - The amount paid by IMGR to ZEEL on behalf of appellant cannot be considered as an amount paid to appellant for any service, demand is not sustainable: CESTAT

January 04, 2023

++ Demonetisation carried out by way of Notification u/s 26(2) of RBI Act, was substantially legal: SC

++ CX - Dispute is in relation to whether the assessee was covered by exemption notification - Appeal not maintainable: HC

++ ST - Cenvat credit availed on inputs, input services and capital goods used for providing renting of immovable property services is proper: HC

++ ST - Question of law raised by department concerns classification of services and which would involve determination of rate of tax and, therefore, is not appealable before High Court: HC

++ GST - ITC available of GST charged by service provider in respect of canteen facility provided to direct employees: AAAR

++ CX - Order of Adjudicating Authority cannot stand as same is passed not only without adhering to directions of this Bench, but also omitting to properly take note of contents / job description in work orders reproduced by him: CESTAT

++ ST - Merely because the invoice is for amount towards various expenses but the same were in relation to CHA service by CHA, hence, refund cannot be rejected: CESTAT

January 03, 2023

++ GST - There is nothing for Court to adjudicate except pointing out the limitation of software of respondent department - Feature like 'MAY I HELP YOU' be created by GSTN: HC

++ GST - On filing an Undertaking of maintaining the balance in SB a/c and in Current A/c, petitioner is permitted to operate his Current A/c upon the attachment being lifted: HC

++ GST - State's obligation is to ensure implementation of the law but at the same time not to thwart, in any manner, the business prospects of citizens - Registration to be restored: HC

++ GST - Words 'provisional' and 'attachment' read in conjunction can only mean a 'temporary attachment' - After expiry of the period of one year, such orders have spent their force; cannot be allowed to continue: HC

++ GST - Cryptic notice makes no sense - SCN and order set aside - Registration restored - Costs imposed: HC

++ VAT - As per settled position in law, Revenue is obligated to inform assessee about charges levelled: HC

++ Cus - Commr.(A) gave no reasons for upholding rejection of declared value of imported goods or for upholding redetermination of value; that Commr.(A) was impressed by length of Order-in-Original is insufficient ground to uphold it: CESTAT

++ Cus - Valuation - declared prices cannot be reviewed without any evidence showing that relation between appellants & sellers has influenced declared price or that there was a flow back of money from importer to related supplier: CESTAT

++ CX - Silos are correctly classifiable under 8437 9090 and not 9406 0099 - Just because of change in opinion, appellant cannot be charged with suppression: CESTAT

January 02, 2023

++ GST - WCS to UPJN - UP Jal Nigam is not a 'local authority' but a 'governmental authority' - Applicant is disentitled for lower rate of tax of 12%; supplies attract tax @18%: AAR

++ GST - Supply provided to Indian Railways does not fall under the category of 'new construction' - Applicant is not entitled to benefit of entry 3(v)(a) of Notification No. 8/2017-ITR; attracts tax @18%: AAR

++ GST - Eco-friendly expandable paper wrap (honeycomb paper for wrapping) is classifiable under HSN 4823 9013 and attracts GST @18%: AAR

++ GST - SCN issued and order passed - As matter has been carried to its logical end, petitioner may assail the same, if so desired and if so advised: HC

++ CX - Credit can be availed on amount of insurance premium paid by appellant to insurance company for availing mediclaim of employees who had opted for VSS announced by appellant: CESTAT