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GST - Case Laws
Showing 41 to 60 of 11460 Records
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2024 (5) TMI 266 - GUJARAT HIGH COURT
Applicable rate of tax (GST) - Classification of goods - mango pulp supplied to 100% Export Oriented Unit which further exports such pulp outside the country after minor processing / re-packing - to be classified under residuary entry No. 453 or not - HELD THAT:- Prior to the 22nd meeting of the GST Council, so far as mango sliced and dried are concerned, the GST rate was applicable at 12% from 1st July 2017 as per Notification No. 1/2017 in Schedule – II which was reduced to 5% as per recommendations of the GST Council as per Notification No. 34/2017 dated 13th October 2017. While the GST Council in its 47th meeting has clarified that only mangoes sliced and dried are liable to reduction of rate of tax at the rate of 5% from 12% and therefore, to clarify that mangoes other than sliced and dried, the third category of entry was inserted in the category vide Entry No. 16 of Schedule – II as per Notification No. 6/2022 dated 18th July 2022. Therefore, for all purposes and intention Entry of rate of 12% would govern the product “mango pulp”, which was not specifically included in Entry No. 30A, which provides for mango sliced, dried.
The impugned circular dated 3rd August 2022 only clarifies the insertion of Entry No. 16 vide Notification No. 6/2022 and therefore, the argument and contention raised by the petitioner that by the impugned circular, the GST rate of 12% sought to be introduced is without any basis. For “mango pulp”, the GST rate was 12% from 1st July 2017 as per Notification No. 1/2017 - The “mango pulp” was not included in the Entry No. 30A of the Schedule – II, which came into effect by Notification No. 34/2017. Therefore, there was a need for clarification by the GST Council in its 47th meeting held on 28th June 2022 to clarify that the third category of mango in HSN 0804 other than fresh and dried mangoes are required to be clarified to be taxed at the rate of 12%.
The impugned Notification and circular are not in the nature of amending the tax rate with increasing the tax rate with retrospective effect. In fact, they are clarificatory so far as the product “mango pulp” is concerned, as admittedly, Entry No. 30A does not include the “mango pulp”.
Therefore, the stand of the respondents that “mango pulp” would fall in the residuary category as the same was not included either in the Notification No. 1/2017 or covered by the Entry No. 30A is also not as per clarification made by the GST Council. Therefore, the respondents are also not justified to apply rate of 18% GST as per residuary Entry No. 453 as “mango pulp” would be falling under HSN 0804, which broadly categorized fresh and dried mangoes. Therefore, naturally, “mango pulp” would go with the mango sliced, dried and would be covered by mango sliced, dried attracting 12% rate prior to Notification No. 34/17. The GST Council has only clarified that the third category of mangoes other than “mango sliced and dried” would attract 12% of GST. Therefore, the contention of the respondents to tax on “mango pulp” at 18% is also not tenable.
The case of the petitioners that word “mango” was removed from Entry No. 16, the petitioners would be liable to pay tax at 5% on mango sliced and dried as the “mango pulp” is neither mangosteens nor dried as per Serial No. 16 in Schedule – II under Chapter Heading 0804 nor the petitioners are entitled to exempted category as per Serial No. 51 of exemption Notification No. 2/2017, which pertains to mango fresh is very attractive at the first blush, however, considering the Notification nos. 1/2017, 34/0217 and 6/2022 together, the “mango pulp”, as per the recommendations of the GST Council, was to be taxed at the rate of 12% only as the same would not be falling in Entry No. 30A as mango sliced or dried.
There is no retrospective amendment of Entry No. 16, but the same is clarificatory only inserted by Notification No. 6/2022 and the impugned circular dated 3rd August 2022 where Entry No. 16 in Schedule – II has included “mangoes other than sliced, dried” which includes “mango pulp. Therefore rate can be said to be reduced from 12% to 5% only on “mango sliced, dried” and rate of 12% would continue to be applied to “mangoes other than mangoes sliced, dried” as per notification no. 6/22 as per the clarification of the GST Council as per minutes of the 47th meeting - the GST Council has clarified in its 47th meeting that tax rate would continue to apply at 12% other than “mango sliced, dried” for which the GST rate was reduced to 5% as per the recommendations of 27th meeting of the GST Council.
The petitioner is, therefore, liable to pay GST at the rate of 12% as per Entry no. 16 from 01.07.2017 and not 5% as per Entry No. 30A, which provides for “mangoes sliced, dried” only. The contention of the petitioners that there was an amendment to the rate Notification with effect from 18th July 2022 is not tenable. As such the Notification is only clarificatory and would apply with effect from 1st July 2017 as per Notification No. 1/2017. It is true that Section 9 of the CGST Act does not grant power to amend the rate Notification - The contention of the petitioner that as per HSN 0804, “mango pulp” would be covered by mangoes as per General Chapter Note, which includes fruits and dates, and therefore, only mangoes other than fresh mangoes is required to considered and as “mango pulp” is not a fresh mango and would be covered by entry No. 30A “mango sliced, dried” is not tenable in view of clarification made by the GST Council in its 47th meeting, wherein it is clearly mentioned that only “mangoes sliced, dried” would attract GST at 5% and remaining mango would be attracted GST at 12%. Therefore, the Notification No. 6/2022 is only inserting the word “mango” other than mango sliced, dried so as to clarify that all mangoes would fall in the same category other than “mango sliced, dried”.
Thus, as “mango pulp” would fall under the third category of “mangoes (other than mango sliced, dried)” would be liable to levy at the rate of 12% as per Entry No. 16 which was amended so as to clarify the intention of council to continue to levy GST at 12% on “mangoes (other than mango sliced, dried)” which would include “mango pulp” from 1st July 2017.
The impugned show cause notice is hereby quashed and set aside and the petitioners would be liable to pay GST at the rate of 12% from 1st July 2017 on the product “mango pulp” and not at the rate of 5% (as claimed by the petitioners) or 18% (as claimed by the respondents) for the period from 01.07 2017 to 18.07.2022 - petition allowed in part.
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2024 (5) TMI 265 - GUJARAT HIGH COURT
Exemption from GST - pure services or supply of goods to the Notified Area Authority, Vapi - Notified Area Authority, Vapi is a “local authority” or “governmental authority”? - N/N. 12/2017-Central Tax (Rate) dated 28th June 2017 and the N/N. 12/2017-State Tax (Rate) dated 30th June 2017 - HELD THAT:- The contention of the petitioner that the Notified Area Authority, Vapi is discharging the function that like of the municipality, is not acceptable in view of the decision of the Hon’ble Apex Court in the case of NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VERSUS CHIEF COMMISSIONER OF INCOME TAX & ORS. [2018 (7) TMI 137 - SUPREME COURT] where it was held that 'the appellant is not covered by the definition of local authority as contained in Explanation to Section 10(20)'.
In view of the conspectus of law, the Hon’ble Supreme Court held that the Area Development Authority is not akin to the municipality constituted under Article 243Q(1) of the Constitution of India. The Hon’ble Apex Court, in the case of SAIJ GRAM PANCHAYAT VERSUS STATE OF GUJARAT AND OTHERS. [1999 (1) TMI 531 - SUPREME COURT], held that the Gujarat Industrial Development Act operates in a totally different sphere from Parts IX and IXA of the Constitution and the Gujarat Panchayats Act, 1961.
Considering the conspectus of law laid down by the Hon’ble Apex Court in the case of New Okhla Industrial Development Authority, the Notified Area Authority, Vapi cannot be considered as “local authority” or “Governmental Authority”. Therefore, the Notified Area Authority, Vapi is neither a “local authority” nor a “Governmental Authority” carrying out any activity in relation to any function entrusted to Panchayat under Article 243G of the Constitution or in relation to any function entrusted to Municipality under Article 243W of the Constitution.
Petition dismissed.
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2024 (5) TMI 264 - PATNA HIGH COURT
Interest Liability on Electronic Credit Ledger Payments - Seeking levy of interest only on that part of the tax which is paid in cash - Peremptory recovery sought as against two objections raised on audit, relating to interest payable for the assessment years 2017-18 and 2018-19 - interpretation placed on the proviso fully absolving a debit from the Electronic Credit Ledger from the liability of interest - HELD THAT:- The audit report as was pointed out by the learned counsel for the petitioner at paragraph no. 1 speaks of non-payment of the amount of interest amounting to Rs. 82,57,170/- on delayed payment through DRC-3 in the financial years 2018-19. The taxpayer was found to have offset the GST liabilities only on 12.05.2020 when the last date of furnishing monthly returns was on the succeeding month. The offsetting of GST liabilities occurs only on furnishing of return and the credit to the input tax ledger also occurs only on such furnishing of returns.
The order specifically speaks of a personal hearing afforded at the Monitoring Committee Meeting (MCM) and the Committee having rejected the submissions made and required the assessee to make the deposit of the interest amounts into the government account under the proper head of CGST/SGST interest.
The objections made under audit and the decisions of the Monitoring Committee does not oblige the Proper Officer to follow it verbatim and the Proper Officer is the person who has to consider the matter and arrive at a decision insofar as the final assessment is concerned as also process and effect recovery - The availability of input tax in the Electronic Credit Ledger would be inconsequential since the tax payment is only on furnishing of returns. The credit available in the Electronic Credit Ledger would be set off against output tax only on the furnishing of returns for the tax period, when debit is made from the Credit Ledger.
The writ petition is dismissed.
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2024 (5) TMI 263 - MADRAS HIGH COURT
Time limitation for filing appeal - recovery of short paid duty alongwith interest and penalty - HELD THAT:- There is no dispute that the subject matter of the show cause notice dated 30.06.2023, which has culminated in the order of the first respondent dated 14.02.2024, was the subject matter, in respect of which the petitioner wanted a clarification by filing an application before the second respondent on 05.06.2023, which has now culminated in the order passed by the second respondent dated 26.02.2024. Therefore, the challenge to the order passed by the second respondent on 26.02.2024 cannot be countenanced.
The petitioner is directed to file an appeal before the Appellate Commissioner as mentioned above within the period of limitation under Section 107(2) of the GST Act, 2017 - the writ petition is dismissed.
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2024 (5) TMI 262 - MADRAS HIGH COURT
Validity of assessment order - reply to the ASTM-10 notice was not taken into consideration - violation of principles of natural justice - confirmed tax demand relates to the discrepancy between the petitioner's GSTR 1 and 3B returns - HELD THAT:- On perusal of the impugned order, it is clear that the confirmed tax demand relates to the discrepancy between the petitioner's GSTR 1 and 3B returns. It is also clear from the order that the petitioner's reply to the notice in Form ASMT-10 was not taken into account. In these circumstances, albeit by putting the petitioner on terms, the interest of justice warrants that an opportunity be provided to the petitioner to contest the tax demand on merits.
The impugned order dated 25.09.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand as agreed to within two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is also permitted to submit a reply to the show cause notice.
The petition is disposed off.
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2024 (5) TMI 261 - MADRAS HIGH COURT
Validity of assessment order - petitioner did not have a reasonable opportunity to contest the tax demand on merits - violation of principles of natural justice - tax demand arose entirely on account of belated filing of returns - HELD THAT:- On perusal of the impugned order, it is evident that such order was issued entirely on the basis that returns were filed belatedly by the petitioner. It also follows from the order that the petitioner did not participate in proceedings and that the tax demand was confirmed in view of the petitioner's failure in reply. In these circumstances, solely for the purpose of providing an opportunity to the petitioner to contest the tax demand on merits, interference with the impugned order is warranted.
The impugned order dated 03.03.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand within two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is also permitted to submit a reply to the show cause notice.
Petition disposed off.
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2024 (5) TMI 260 - MADRAS HIGH COURT
Challenge to assessment order and bank attachment notice - assail on the ground that the petitioner did not have a reasonable opportunity to contest the tax demand on merits - mismatch between the GSTR 1 and GSTR 3B - violation of principles of natural justice - HELD THAT:- The orders impugned herein reveal that tax liability was imposed on the basis of a mismatch between the GSTR 1 and GSTR 3B. These orders were issued without the petitioner being heard. In these circumstances, albeit by putting the petitioner on terms, it is just and appropriate that the petitioner be provided a reasonable opportunity to contest the tax demand.
Therefore, the impugned assessment order and the consequential attachment notice are set aside and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is also permitted to submit a reply to the show cause notice.
Petition disposed off by way of remand.
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2024 (5) TMI 259 - MADRAS HIGH COURT
Validity of assessment order - violation of principles of natural justice - tax liability on outward supplies after setting off the ITC - HELD THAT:- The tax liability was imposed because the petitioner replied without annexing documents. As a consequence of such order, ITC to the extent of about Rs. 1.04 crore was reversed. In the petitioner's reply, the petitioner has stated that outward supplies do not give rise to tax liability after setting off ITC. The petitioner has also asserted that proper bills and other documents are available. In these circumstances, it is just and appropriate that an opportunity be provided by the petitioner to contest the tax demand on merits albeit by putting the petitioner on terms.
The impugned order dated 29.12.2023 is set aside on condition that the petitioner remits a sum of Rs. 5,00,000/- towards disputed tax liability as agreed to within three weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (5) TMI 258 - CHHATTISGARH HIGH COURT
Refund of the unutilized ITC of GST Compensation Cess on coal - zero rated supply - rejection of refund on the ground of time limitation - Vires of Clause 5 of the impugned Notification No. 53/2023 – Central Tax dated 02.11.2023 issued by the Central Board of Indirect Taxes & Customs - Rejection of Appeal for Delay - HELD THAT:- It is the case of the petitioner-Company itself that the notification was issued by the Government of India as various orders were being passed by the authorities and they were being uploaded on the web portal of the Department. However, since the orders were uploaded but could not be communicated to the parties concerned, delay was caused in preferring appeals against those orders and the appeals were being dismissed on the ground of delay. To overcome such situation, the impugned notification was brought in so that the appeals could be heard and the delay if any caused in preferring the appeal could be condoned.
In the case in hand, admittedly, the appeals were filed by the petitioner-Company before the Joint Commissioner (Appeals), State Tax with some delay and the said appeals stood dismissed vide order dated 05.12.2023 (Annexure P/1) in light of clause 5 of the impugned notification. The learned Joint Commissioner has observed that the appeal was filed by the petitioner Company after a delay of 1 year and 1 month from the prescribed time limit and no cogent reason was afforded for such an inordinate delay. There are no error in the order (Annexure P/1) passed by the respondent No. 4.
So far as declaring clause 5 of the impugned notification is concerned, a plain reading of the said clause would make it amply clear that no appeal would lie under this Notification in respect of a demand not involving tax. It is a case where the petitioner-Company is claiming refund of tax which was rejected and the appeal before the Joint Commissioner also stood dismissed on the ground of limitation. No cogent reason has been assigned as to how the said clause is ultra vires the Constitution of India.
The appeal filed by the petitioner-Company is barred by limitation and it is not in a position to avail the benefit of extension of time period which has been granted by the Notification and as such, the relief sought for by the petitioner-Company to declare clause 5 of the impugned Notification, does not merit acceptance.
All the writ petitions are dismissed.
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2024 (5) TMI 257 - BOMBAY HIGH COURT
Classification of the mixed spices - classification accepted under the heading 09109100 of the GST Tariff - HELD THAT:- There are substance in the contention of petitioner that the approach of the Additional Commissioner appears to be perverse, to say the least. However, an opportunity given to respondent no. 5 to take an appropriate view of the matter and place his reply affidavit on record.
Let this be done on or before the adjourned date of hearing - the proceedings placed on 15th April 2024, High on Board.
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2024 (5) TMI 256 - MADRAS HIGH COURT
Imposition of GST on vouchers - Validity of assessment order - unreasoned impugned order - violation of principles of natural justice - HELD THAT:- The respondent summarized the contentions of the petitioner. After doing so, the sweeping conclusion that the argument was not valid is recorded. The respondent also records that vouchers are in the nature of actionable claims, which are included within the definition of goods under Section 2(52) of the CGST Act. Conspicuous by its absence in the impugned order, is the recording of reasons as to why the contentions of the petitioner were rejected. Since the impugned order is unreasoned in this respect, such order is unsustainable.
The impugned order is set aside only insofar as it relates to the imposition of GST on vouchers. As a consequence, this issue is remanded for re-consideration by the respondent. After providing a reasonable opportunity to the petitioner, including a personal hearing, the respondent is directed to issue a fresh speaking order after duly taking note of and dealing with each contention raised by the petitioner in this regard.
Petition disposed off by way of remand.
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2024 (5) TMI 255 - MADRAS HIGH COURT
Validity of assessment order - demand confirmed for the assessment year 2017-2018 contrary to the limitation prescribed under Section 73 (10) of CGST Act, 2017 - HELD THAT:- The challenge to the impugned assessment order does not call for any interference under Article 226 of the Constitution of India. If the petitioner is aggrieved, the petitioner can only file a statutory appeal under Section 107 of the GST Act before the appellate Authority. In case, it is the case of the petitioner that the assessment that has been confirmed for the assessment year 2017-2018 thus fell under the VAT regime, unless the assessment order was completed as is contemplated under the provisions of the TNVAT Act, 2006, the demand cannot be said to be time barred, in which case appropriate demand notice under Section 27 of the TNVAT Act, 2006 can be issued. These are aspects, which will have to be considered by the appellate Commissioner on merits and in accordance with law.
Petition dismissed.
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2024 (5) TMI 254 - MADRAS HIGH COURT
Refund claim - determination of the turn over for the purpose of refund - Rule 89(4) of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The issue can be re-examined in the light of the circular No 197/09/2023-GST, dated 17.07.2023, the impugned order is set aside and the case remitted back to the second respondent to pass orders afresh on merits and in accordance with law, in the light of the submissions made by the learned counsel for the petitioner and in the light of the paragraph 3 of the above circular. This exercise may be carried out by the second respondent within a period of 8 weeks from the date of receipt of a copy of this order.
Petition allowed by way of remand.
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2024 (5) TMI 253 - MADRAS HIGH COURT
Cancellation of registration of petitioner - assessment order was made on best judgment basis because the petitioner continued to carry on business during the relevant period - HELD THAT:- The impugned order was issued on 30.11.2022. By that time, the order of cancellation was issued and such order took effect from 31.07.2022. On perusal of the impugned assessment order, it is evident that liability was imposed entirely on the basis of the petitioner's turnover for the month of March 2022 as per the GSTR 3B return. Learned counsel for the petitioner points out that 12.5% of the disputed tax demand was remitted when the petitioner endeavoured to avail of an amnesty scheme for filing of appeals - Since liability was imposed on the petitioner entirely on the basis of the petitioner's turnover of March 2022 and the petitioner asserts that no business was carried on in August 2022, it is just and necessary that the petitioner be provided an opportunity to contest the tax demand.
The matter is remanded for reconsideration - Petition disposed off by way of remand.
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2024 (5) TMI 252 - MADRAS HIGH COURT
Validity of assessment order under TNGST Act - opportunity that has been granted is inadequate and not in compliance with Section 75(4) of TNGST Act - HELD THAT:- Considering the fact that the petitioner's request on 01.04.2021 for 15 days was limited to a week and also during the relevant period there was covid pandemic, which caused unprecedent difficulties. This Court is inclined to accede to the request of the petitioner for one final opportunity.
The impugned orders of assessment are set aside. The petitioner is at liberty to file their objections, along with the documents, within a period of 6 weeks from the date of receipt of a copy of this order - the writ petition is disposed off.
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2024 (5) TMI 251 - MADRAS HIGH COURT
GST on seigniorage fee and mining lease amounts paid by the petitioner to the Government - HELD THAT:- The Division Bench of this Court in TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [2024 (2) TMI 488 - MADRAS HIGH COURT] has held that 'It is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision.'
In view of the said judgment, this petition is liable to be disposed of on the same terms. Consequently, in this case, the petitioner is permitted to submit his reply to the intimation within a maximum period of four weeks from the date of receipt of a copy of this order.
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2024 (5) TMI 250 - RAJASTHAN HIGH COURT
Maintainability of petition - non-constitution of Tribunal - appropriate protection available under Section 112(8) of the Rajasthan Goods and Services Tax, 2017 - HELD THAT:- This petition, at this stage, is disposed off with a direction that in case petitioner makes payment as per provisions contained in Sub-section(8) of Section 112 of the Act, further proceedings shall not be drawn for recovery of the balance amount, provided that the petitioner avails statutory remedy of appeal within a period of three months from the date of the constitution of the Tribunal.
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2024 (5) TMI 249 - ORISSA HIGH COURT
Ex-parte order - in spite of sufficient opportunity being given, the petitioner did not appear - whether the State is interested to earn revenue for the State or adhering to technicalities the authority is keen to harass? - HELD THAT:- Considering the interest of the State for augmentation of revenue, this Court is of the opinion that the order dated 31.01.2024 passed by the appellate authority in Appeal is liable to be quashed and is, accordingly, hereby quashed.
Accordingly, the matter is remitted to the appellate authority to reconsider afresh by giving opportunity of hearing to the petitioner. As such, to short cut the time, this Court fixes 15.03.2024 on which date the petitioner shall appear along with all the records and also reply before the appellate authority, i.e., Joint Commissioner of State Tax (Appeal), Balasore, Odisha so that the very same authority shall consider and pass appropriate order.
The writ petition is disposed off by way of remand.
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2024 (5) TMI 248 - CALCUTTA HIGH COURT
Cancellation of petitioner’s registration - non-filing of return - Petitioner submits that after the cancellation of its registration, it has paid all the revenue due and he further agrees to pay if any revenue due which is required to be paid for restoring of its registration.
HELD THAT:- This writ petition is disposed of by setting aside the impugned order of the adjudicating authority and by directing the respondent GST authority concerned to restore the petitioner’s registration and open the portal for a period of 30 days from date to enable the petitioner to make the payment of revenue due if any to be indicated by the respondent authority concerned within seven working days.
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2024 (5) TMI 247 - PATNA HIGH COURT
Maintainability of petition - availability of appellate remedy which the petitioner availed with gross delay - Cancellation of GST registration - HELD THAT:- An appeal was to be filed on or before 30.06.2022 as permitted by the Hon’ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] and if necessary with a delay condonation application within one month thereafter. The appeal is said to have been filed only on 05.11.2023, after about one year five months from the date on which even the extended limitation period expired. In the above circumstances, there are no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time. The law favours the diligent and not the indolent.
Further, the Government had come out with an Amnesty Scheme by Circular No. 3 of 2023, by which the registered dealers, whose registrations were cancelled were permitted to restore their registration on payment of all dues between 31.03.2023 to 31.08.2023. The petitioner did not avail of such remedy also.
The petitioner does not have any case that the show-cause notice was not received by him. Further, it is also pertinent that the reason stated in the show-cause notice for cancellation of registration is that the petitioner has not filed returns for a continuous period of six months. The petitioner does not have a case that he had in fact filed a return in the continuous period of six months.
The writ petition stands dismissed.
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