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GST - Case Laws
Showing 601 to 620 of 13912 Records
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2024 (10) TMI 605
Recovery of wrongly availed credit, with penalty for wrongful availment of credit - credit on transition to GST regime - stock transfer vouchers not issued by duly registered dealers - petitioner's branches not registered - no correlation between the invoices and the claims made by the petitioner.
Registration status of the petitioner's branches under Rule 9 of the Central Excise Rules, 2002 - HELD THAT:- Rule 9, which requires registration also provides for an exemption under Rule 9(2). Such exemption had been granted, by way of the Notification of the Central Government dated 01.03.2010, which has been extracted above. The certificate of registration produced by the petitioner, before this Court, shows that a centralized registration under Rule-9 had been issued to the petitioner. The annexure has also been filed along with the certificate showing the various branches of the petitioner which are said to be covered under the said registration.
Correlation of the claim of the petitioner with the invoices produced by the petitioner - HELD THAT:- The said issue can only be resolved by the respondent authorities by looking at the documents produced by the petitioner. It appears that at the original stage, documents were rejected on the ground that they have not emanated from the registered entity or branch. At the appellate stage, the appellate authority while affirming this finding of the original authority had taken an additional ground that there was no correlation.
The Order-in-original dated 02.07.2021 passed by the 2nd respondent and the Appellate order dated 31.03.2022 passed by the 1st respondent are set aside - The present dispute is remanded back to the 2nd respondent-Original Authority for determining whether the credit claimed by the petitioner is in accordance with the Rules and Law after verifying whether the registration certificate of the petitioner covered the branches at Mumbai, Tamil Naidu and Telangana etc.
The writ petiiton is disposed off by way of remand.
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2024 (10) TMI 604
Withdrawal of negative blocking of ITC in the electronic credit ledger of the Petitioners - Jurisdiction and authority under Rule 86A of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- As per the eventualities provided in clauses (a) to (d) of Sub-rule (1), the Commissioner or an officer authorised by him in this behalf, not below the rank of an Assistant Commissioner, having reasons to believe that credit of input tax available in the Electronic Credit Ledger has been fraudulently availed or is ineligible after reasons to be recorded in writing, is authorised not to allow the debit of an amount equivalent to such credit in Electronic Ledger for discharge of any liability under section 49 of the GST Act or for claim of any refund of any unutilised amount.
After referring to Circular No. 4 of 2021 dated 24.05.2021 issued by the Office of the Commissioner of State Tax, State Goods & Services Tax Department, Kerala with regard to blocking of the credit, it was observed that if there is Nil or insufficient balance in a particular tax head in the Electronic Credit Ledger, then the balance in another tax head can be blocked only if the cross-utilization from such head is permissible in law. But such cross-utilization between CGST and SGST is not permissible and therefore, the SGST credit ledger cannot be blocked if sufficient credit balance is not available under the CGST head and vice versa.
The issues raised in this petition are already answered in favour of the petitioner as there cannot be any blocking of the credit in Electronic Credit Ledger if there is no sufficient balance available.
The respondents are directed to withdraw the negative block of the Electronic Credit Ledger at the earliest to the extent of Rs. 2,44,05,567/- and whatever balance remained in the Electronic Credit Ledger after the removal of the balance of the negative figure, the same shall not be utilised by the petitioner till the show cause notice is issued, if any, under sections 73 or 74 respectively of the GST Act.
Petition allowed.
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2024 (10) TMI 603
Principles of natural justice - non-service of SCN - seeking that an opportunity should be given to the petitioner to defend themselves along with all the relevant documents - HELD THAT:- In the instant case, it is seen that notice was issued by the respondent but however, the petitioner did not receive the same. On going through the impugned order, it is seen that a total tax liability of Rs. 7,31,116/- , including interest and penalty, Rs. 8,04,226/- has been imposed against the petitioner. The petitioner has come up with a clear case that there are sufficient materials/documents to substantiate the defense of the petitioner to the effect that there was no mismatch between GSTR2A and GSTR3B.
This Court had an occasion to deal with a similar issue in SRI GANESA ENGINEERING ENTERPRISES, VERSUS THE DEPUTY STATE TAX OFFICER, (FORMERLY KNOWN AS DEPUTY COMMERCIAL TAX OFFICER) , CHENNAI [2024 (10) TMI 125 - MADRAS HIGH COURT]. This Court wanted to afford an opportunity to the petitioner therein by putting the petitioner on terms. In order to maintain consistency, a similar order can be passed in this Writ Petition also.
The impugned order passed by the respondent in Reference Number in GSTIN: 33AAEPE7427R1ZE/2017-18 dated 29.12.2023, is hereby set aside. The matter is remanded back to the file of the respondent for fresh consideration on condition that the petitioner will pay 10% of the disputed tax amount to the respondent within a period of four weeks from today - Petition allowed by way of remand.
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2024 (10) TMI 602
Seeking grant of bail - offence under Section 69 of Central Goods and Service Tax Act, 2017 read with Sections 132 (1) (b), 132 (1) (c), 132 (1) (f) of the CGST Act, 2017 - HELD THAT:- This Court is inclined to grant bail to the petitioner in terms of the paragraph-15 of the judgment and order dated 23.11.2023 passed in BLAPL No. 9999 of 2023 [2023 (11) TMI 1156 - ORISSA HIGH COURT], where it was held that 'This Court is inclined to grant the prayer for bail made by the petitioner subject to such stringent terms and conditions imposed.'
The BLAPL is disposed of accordingly.
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2024 (10) TMI 552
Blocking of credit ledger of the petitioner by mentioning ‘Registration of supplier has been cancelled’ - ledger is blocked without issuing any show cause notice - violation of principles of natural justice - HELD THAT:- A conjoint reading of Section 74 and Rule 86A leaves no room for any doubt that the intention and object behind insertion of those provisions is to deprive the person chargeable from a benefit which is wrongly or fraudulently claimed and enjoyed. A ‘Section’ in a statute is always on a higher footing than the ‘Rule’ made under the Act. As noticed, Section 74 statutorily recognizes and mandates that principles of natural justice are to be followed. Rule 86A, on the other hand, is totally silent on the aspect of applicability of principles of natural justice. Thus, if Rule 86A is implemented without following the principles of natural justice, it may cause hardship, inconvenience and injustice. It is difficult to accept that the law makers intended not to follow principles of natural justice while inserting Rule 86A in the statute book.
A plain reading of the judgment in Basanta Kumar Shaw [2022 (8) TMI 50 - CALCUTTA HIGH COURT] shows that the question whether the principles of natural justice are to be read into Rule 86A was not subject matter of discussion. The Calcutta High Court opined that Input Tax Credit is a concession and not a vested right. Thus, Rule 86A neither expressly nor by necessary implication excludes the principles of natural justice, the principles of natural justice for the detailed reasons given hereinabove must be read into the provision.
The action of blocking the electronic credit ledger of the petitioners without following the principles of natural justice and without assigning adequate reasons cannot sustain judicial scrutiny. Thus, the impugned action in all the Writ Petitions is set aside - the impugned action cannot be countenanced - petition allowed.
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2024 (10) TMI 551
Violation of principles of natural justice - Non-service of SCN - show cause notice and Form GST DRC-01 dated 30.09.2023 raised on the petitioner in the GST common portal, and the petitioner was unaware of the same - Wrongful availment of Input Tax Credit (ITC) for the financial year 2017-2018 - HELD THAT:- The impugned show cause notice was uploaded on the GST Portal Tab. According to the petitioner, the petitioner was unaware of the issuance of the show cause notice through the GST Portal and the original of the said show cause notice was not furnished to them.
In such circumstances, this Court is of the view that the impugned order came to be passed without affording any opportunity of personal hearing to the petitioner to establish its case, thereby violating the principles of natural justice and that it is just and necessary to provide an opportunity to the petitioner to establish their case on merits and in accordance with law.
The order impugned herein is set aside and the matter is remanded to the respondent for fresh consideration - Petition allowe by way of remand.
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2024 (10) TMI 550
Maintainability of petiiton - availability of efficacious alternative remedy - Challenge to order u/s 129 of the WBGST/CGST Act, 2017 - seeking release of intercepted goods - HELD THAT:- Although, it is true that the petitioners may have an alternative remedy before the appellate authority in respect of the challenge to the order passed under Section 129 (3) of the said Act, however, in the event, the petitioners intend to invoke their rights as provided under Section 129 (1) (a) of the said Act, the petitioners are entitled to do so. However, in the instant case, there appears to be no formal application filed by the petitioners for invoking the provisions of Section 129 (1) (a) of the said Act.
The petitioners are permitted to apply before the respondents by invoking the provisions of Section 129 (1) (a) of the said Act subject to the petitioners establishing their right to maintain such application. In the event, a formal application is filed with the respondents within a period of 10 days from date, the respondents shall dispose of such application as expeditiously as possible, preferably within a period of 10 days from the date of filing of such application.
Insofar as challenge to the order passed under Section 129 (3) of the said Act is concerned, since an efficacious alternative remedy is available, there is no scope to entertain the writ petition, as regards such challenge.
Petition disposed off.
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2024 (10) TMI 549
Availment of ITC in excess of the credit reflected in the GSTR-2A statement - Mismatch between GSTR-3B and GSTR-2A - ITC not reversed on the basis of debit reflected in GSTR-2A - E-Way bill not generated for the movement of goods - It is submitted by the learned counsel for the petitioner that if the petitioner is provided with an opportunity, he would be able to explain the above discrepancies - principles of natural justice - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax after adjusting the amount of Rs. 1,00,000/- which is already paid, within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the bank attachment shall be lifted. The impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objection is filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner.
This Writ Petition is disposed of.
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2024 (10) TMI 548
Challenge to impugned proceedings of the respondent - scope of SCN crossed - impugned order made without taking into account the submissions made during the course of investigation and the payments made already - gross non-application of mind to the material facts on record - violation of principles of natural justice - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of two (2) weeks from the date of receipt of a copy of this order. The tax already paid by the petitioner in addition to the tax what is disclosed in the assessment order shall be adjusted towards the deposit of 25% of the disputed tax.
On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material.
Petition disposed off.
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2024 (10) TMI 547
Violation of principles of natural justice - Input Tax Credit has been disallowed without considering the petitioner's objection - invocation of Section 161 of the GST Act to enable them to rectify the error apparent on the record - HELD THAT:- This Court is of the view that there is merit in the submission of the learned counsel for the petitioner that the impugned order is a non speaking order. The impugned order is passed without assigning any reason for the rejection of the reply filed by the petitioner, resulting in violation of principles of natural justice.
The impugned order dated 30.07.2024 is set aside. The petitioner may be granted one final opportunity to appear before the respondent authorities along with supporting materials on 14.10.2024 at 11.00 A.M, to put forth his case. If the petitioner does not avail of the opportunity, the impugned order shall stand revived.
Petition disposed off.
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2024 (10) TMI 496
Principles of natural justice - respondent No. 1 has passed a summary of the order dated 13th August, 2019, however no detailed order is made available to the petitioners - HELD THAT:- The impugned summary order dated 13th August, 2019 is based upon ‘NO ORDER’ passed under Section 73 of 74 of the GST Act and therefore, such summary of the order is void-ab-initio and is accordingly hereby to be quashed and set aside and the petitioners are at liberty to take consequential action for the refund of the amount paid in Form GST DRC-03.
Petition allowed.
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2024 (10) TMI 495
Dismissal of appeal of the petitioner on the ground of limitation - prayer for for quashing and setting aside the order passed under section 73 (9) of the Central Goods and Service Tax Act, 2017 - requirement of one chance of hearing - violation of principles of natural justice - HELD THAT:- It is not in dispute that the managing partner of the petitioner-Firm whose Email ID was the only source of communication between the petitioner-Firm and the respondent- Department was critically ill and was suffering from cancer from the month of 2022 to August 2022. Revenue has not been able to controvert these facts.
However, the fact remains that the petitioner-Firm uploaded the return in FORM GSTR 01 and GSTR 3B in the months of March, April and May, 2022 and therefore, the consultant of the petitioner-Firm ought to have been drawn attention of the petitioner about the notice dated 22.02.2022. However, taking into consideration the fact that the managing partner of the petitioner-Firm was not well, the respondent-Department ought to have granted an opportunity of hearing before passing the impugned order dated 04.04.2022 once more so as to comply with the provisions of section 75 (4) of the CGST Act.
The respondent-authority is required to give an opportunity of hearing if any adverse order is passed. The fact remains that the notice in Form DRC 01 is issued by the respondent No. 1 before passing order and failure on the part of the petitioner-Firm to reply to such notice would be the sufficient ground for compliance of section 75 (4) of the Act - However, in the facts of the case, when Managing Director of the petitioner-Firm was not well and the petitioner has pleaded the inability to reply to the notice, one fair chance is required to be given to the petitioner to comply with the principle of natural justice.
The impugned order dated 04.04.2022 and the appellate order dated 04.09.2022 are hereby quashed and set aside and matter is remanded back to the respondent No. 1 to decide show-cause notice dated 22.02.2022 after giving an opportunity of hearing to the petitioner - Petition allowed by way of remand.
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2024 (10) TMI 494
Classification of goods - rate of GST - Fly Ash Blocks - classifiable under Entry No.225B of Schedule-I or under Entry No. 453 of Schedule-III? - HELD THAT:- Circular No. 179/11/2022-GST dated 03.08.2022 has clarified that as per recommendation of the GST Council in 23rd meeting the condition of 90% or more fly ash content was applicable only for Fly Ash Aggregate and accordingly it was clarified that 90% or more fly ash content applied only to Fly Ash Aggregate and not to Fly Ash Bricks and Fly Ash Blocks and w.e.f. 18.07.2022 the condition is omitted from the description.
In view of above clarification, as per the Notification No. 04/2018-Central Tax (Rate) dated 31.12.2018 Entry No. 225B refers to applicability of levy of GST rate of 5% on Fly Ash Bricks and all Fly Ash Aggregate with 90% or more fly ash content or Fly Ash Blocks as per the clarification fly ash aggregate at 90% or more fly ash content would not be applicable Fly Ash Bricks or Fly Ash Blocks and accordingly the rate of GST applicable to the products manufactured by petitioner would be 5% as per the Entry No. 225B.
The orders passed by the Advance Ruling Authority and the Appellate Authority is set aside - petition allowed.
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2024 (10) TMI 493
Order of cancellation of registration passed by the Assessing Officer upheld - appeal was dismissed on the ground of limitation - petitioner challenged the order of cancellation of registration on the ground of not providing an opportunity of hearing as well as such order was passed without assigning any reason for cancellation of the registration of the petitioner - principles of natural justice - HELD THAT:- The Coordinate Bench of this Court in case of M/s. Aggrawal Dyeing & Printing vs. State of Gujarat [2022 (4) TMI 864 - GUJARAT HIGH COURT] has issued the guidelines to the respondent-authorities that 'Our concern is that on account of procedural lapses, the High Court should not be flooded with writ applications. The procedural aspects should be looked into by the authority concerned very scrupulously and deligently. Why unnecessarily give any dealer a chance to make a complaint before this Court when it could have been easily avoided by the department.'
The aforesaid judgment was rendered in the year 2022. However, in spite of the above direction issued by this Court, the respondent-authorities without following such directions are issuing cryptic notice and order for cancellation of registration number of the petitioner.
In the present matter, order of cancellation of registration is passed without giving any reason by the respondent authorities, and appeal filed by the petitioner under Section 107 of the GST Act is also dismissed.
As the Appellate Authority has dismissed the appeal of the petitioner, the respondent authorities will not be able to exercise the revisional power under section 108 of the GST Act. Therefore, the impugned order passed by the Appellate Authority as well as the order of cancellation of registration are required to be quashed and set aside - the matter is remanded back to the Assessing Officer at the show cause notice stage - this petition is partly allowed and accordingly, stands disposed of by quashing and setting aside the impugned order passed by the Appellate Authority as well as order of cancellation of registration and the matter is remanded to the Assessing Officer at show-cause notice stage, however, the registration number of the petitioner shall remain suspended till such show cause notice is disposed of.
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2024 (10) TMI 491
Blocking of ITC in the Electronic Credit Ledger of the Appellants by invoking Rule 86A of the CGST Rules - justification in not providing/granting a pre-decisional hearing to the appellants before passing the impugned order blocking its Electronic Credit Ledger under Rule 86A of the CGST Rules - violation of principles of natural justice.
Whether the respondents-revenue were justified in not providing/granting a pre-decisional hearing to the appellants before passing the impugned order blocking its Electronic Credit Ledger under Rule 86A of the CGST Rules? - HELD THAT:- A plain/bare reading of Rule 86A will indicate that there is absolutely no express provision for compliance with principles of natural justice; however, there could arise occasions/situations when principles of natural justice can be read into statutory provisions though they are not expressly present in the provisions - though Rule 86A does not expressly/specifically provide for adherence to principles of natural justice, the same would necessarily have to be read into Rule 86A and complied with while invoking the said provision. It would also be apposite to state that when the ECL of the appellants was sought to be blocked and such credit cannot be utilised for upto 1 year, the said blocking would entail and result in serious civil consequences for the appellants warranting compliance with the principles of natural justice and providing an opportunity of hearing to the appellants.
The learned Single Judge clearly fell in error in coming to the conclusion that a pre-decisional hearing was not required to have been provided/granted to the appellants by the respondents-revenue prior to passing the impugned orders blocking the ECL of the appellants and consequently, the said findings recorded by the learned Single Judge deserve to be set aside - the issue is accordingly answered in favour of the Appellant and against the respondents-revenue by holding that respondents-revenue committed a grave and serious error/illegality/infirmity in not providing/granting a pre-decisional hearing to the Appellant before passing the impugned order blocking its Electronic Credit Ledger under Rule 86A of the CGST Rules and consequently, the impugned orders deserve to be set aside.
Whether the respondents-revenue were justified in passing the impugned orders blocking the Electronic Credit Ledger of the Appellants by invoking Rule 86A of the CGST Rules? - HELD THAT:- In the instant case, the electronic credit ledgers have been blocked solely on the basis of communication from another officer [Field visit report by the Asst. State Tax Officer, Vasco-D-Gama, (Goa)]. There was no tangible material to form any belief that the ITC lying in the appellants’ ECL was on account of any fake invoice; it had proceeded to take action solely on the basis of a direction issued by another authority - On a perusal of the impugned orders, it is crystal clear that the order to block the ECL provisionally was out of the borrowed satisfaction of the respondent authorities rather than based on any independent analysis.
In the light of existence of a legal mandatory pre-requirement and precondition of recording of formation of opinion which is in pari-materia with “reasons to believe”, it was incumbent upon the officer to arrive at his own satisfaction and not borrowed satisfaction by proper application of mind; the respondents have proceeded solely on the basis that the supplier has been found to be non-existent or not to be conducting any business from the place which it has obtained registration, has blocked the input tax which is impermissible in law without checking the genuineness or otherwise of the transaction and consequently, the impugned orders are bald, vague, cryptic, laconic, unreasoned and non-speaking and deserve to be set aside.
In the absence of valid nor sufficient material which constituted ‘reasons to believe’ which was available with respondents, the mandatory requirements/pre-requisites/ingredients/parameters contained in Rule 86A had not been fulfilled/satisfied by the respondents-revenue who were clearly not entitled to place reliance upon borrowed satisfaction of another officer and pass the impugned orders illegally and arbitrarily blocking the ECL of the appellant by invoking Rule 86A which is not only contrary to law but also the material on record and consequently, the impugned orders deserve to be quashed - the issue is answered in favour of the appellants by holding that the respondents-revenue committed a grave and serious error/illegality/infirmity in passing the impugned orders blocking the Electronic Credit Ledgers of the Appellants by invoking Rule 86A of the CGST Rules.
Whether the impugned order passed by the learned Single Judge warrants interference in the present appeals? - HELD THAT:- It is already concluded that the learned Single Judge committed an error in holding that a pre-decisional hearing was not required prior to passing the impugned orders and that the respondents had satisfied the requirements/ingredients for invocation of Rule 86A and that the said findings recorded by the learned Single Judge deserve to be set aside. Under these circumstances, upon re-appreciation, re-evaluation and re-consideration of the entire material on record, the order of the learned Single Judge is not only contrary to law but also the material on record warranting interference in the present appeals which deserve to be allowed - the issue is answered in favour of the appellants by holding that the order of the learned Single Judge deserves to be set aside and the writ petitions preferred by the appellants-writ petitioners deserve to be allowed by quashing the impugned orders.
The impugned order is set aside - Appeal allowed.
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2024 (10) TMI 445
Recovery of inadmissible income tax return with interest and penalty - Challenge against the order of adjudication - non-application of mind in the adjudication order - principles of natural justice - HELD THAT:- It requires to be seen as to whether the order is an outcome of non-application of mind and whether the order has not taken into consideration the documents which ought to have considered. These issues ought to have been decided in the writ petition, however, the writ petition has been dismissed solely on the ground of availability of alternate remedy. The preliminary ground raised by the assessee in challenging the adjudication order would not involve adjudication into facts and because all that the writ court can go into is as to what effect of the earlier order dated 03.07.2018 and subsequent proceeding can be drawn on the same set of facts. Therefore, the writ petition should be heard afresh after affidavit-in-opposition is filed by the Department.
The writ petition is restored to its original file and number before the learned Single Judge. The appropriate respondent shall file their affidavit-in-opposition within a period of six weeks from date - Appeal allowed.
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2024 (10) TMI 444
Blocking the Electronic Credit Ledger (ECL) - Constitutional validity of Rule 86A of the CGST/SGST Rules, 2017 - HELD THAT:- In the instant case since no pre-decisional hearing are provided/granted by the respondents before passing the impugned order, coupled with the fact that the impugned order invoking Section 86A blocking of the Electronic credit ledger of the petition does not contain independent or cogent reasons to believe/accept by placing reliance upon reports of enforcement authority which is impermissible in law, since the same is on borrowed satisfaction as held by Division Bench, the impugned order deserves to be quashed. It is also pertinent to note that the impugned order except stating that the registered person/ supplier "found to be non-existent or not to be conducting any business from the place for it has obtained registration", no other reasons are forthcoming in the impugned order.
Interestingly respondents have themselves stated that the aforesaid supplier had obtained registration and the same was cancelled only on 20.06.2024 and since the transaction between the petitioner and supplier was prior to 20.06.2024, the respondents clearly fell in error in describing/categorizing the supplier as non-existent or not to be conducting any business at the time of transaction with the petitioner.
The impugned order dated 14.08.2024 deserves to the quashed - Petition allowed.
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2024 (10) TMI 443
Valuation for GST - free supply of fuel can be included / added to the freight consideration? - Whether GST to be charged on value of free diesel filled by service recipient under the accepted terms of contractual agreement in the fleet(s) placed by GTA service provider by adding this free value diesel in the value of GTA service, under the Central Goods and Services Tax Act, 2017 & Uttarakhand Goods and Service Tax Act, 2017 or not?
HELD THAT:- The Supreme Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] was examining Section 67 of the Finance Act, 1994, with respect to the goods / materials supplied by the service recipient while procuring the taxable service of construction if the amount charged is not included in the gross amount charged by the service provider for providing such service under a composite contract of service and supply of goods, then it will lead to the obvious conclusion that the value of the goods / materials provided by the service recipient free of charge is not to be included while arriving at the gross amount simply because no price is charged by the assessee / service provider from the service recipient in respect of such goods / materials. The service tax has to be calculated on the gross amount that was charged from the service recipient.
UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] was another case where the Supreme Court was examining the validity of the expenditure / cost incurred by the service provider in the course of providing taxable services. The Supreme Court in this case also was examining Section 67 of the Finance Act, 1994 which relates to the expenditure / cost incurred by the service provider in the course of providing taxable services. In para 26 of the above said judgment, the Supreme Court held that the value of free supplies of diesel and explosives in respect of service of “Site Formation and Clearance Service” can be included for the purpose of assessment to service tax under Section 67 of the Act. The Supreme Court further held that the value of such material which is supplied free by the service recipient cannot be treated as “gross amount charged” and it is not the consideration for rendering the services. In this backdrop, the value of free supplies of diesel and explosives would not warrant inclusion while arriving at the gross amount charged on the service tax to be paid, and all the appeals filed by the Union of India were dismissed.
The Supreme Court in the judgments referred to hereinabove has consistently held that where diesel is filled free of cost (FOC) by the service recipient and is not included in the value of GTA service, then the cost of fuel cannot be added to the payment made by the service recipient to the transporter, and further GST be charged from the transporter.
Hence, as per the consistent view taken by the Supreme Court in the judgments referred to above the cost of fuel cannot be added in the account of the petitioner, who was a transporter, and was governed by the GST rules. Thus, in the case of the petitioner, as per the agreement (Annexure-2), the cost of fuel was to be borne by the service recipient and this cost of this fuel cannot be subjected to charge of GST by adding the value of free diesel in the transaction value of GTA service done by the petitioner. Hence, value of free fuel cannot be added to value of taxable supply under Section 15 (1) and Section 15 (2) (b) of the CGST Act, 2017.
The order dated 30.01.2023 (Annexure-1), passed by the Appellate Authority for Advance Ruling for the State of Uttarakhand Goods and Service Tax is, hereby, set aside - Petition allowed.
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2024 (10) TMI 442
Refund of unutilized Input Tax Credit - remittance being received in a different branch's bank account - Treatment of Establishments as Distinct Persons under CGST Act - HELD THAT:- It transpires that while originally the writ petitioner, while applying for registration for its Delhi BO had not provided any details of a bank account at Bangalore, at the time of the first core field amendment and review exercise and the filing submitted on 29 December 2020, bank account details including in respect of the one maintained at the Standard Chartered Bank Limited at Bangalore were also uploaded and mapped along with the original registration. It becomes relevant to note that the remittances from VGSL were credited to this account.
While it is true that the aforesaid mapping of the Bangalore bank account has occurred after the remittances were received, they are clearly in validation of the fact that services had been exported by the Delhi BO and which has now clearly disclosed an additional bank account maintained at Bangalore. That these remittances are connected with the services rendered by the Delhi BO to VGSL was neither questioned nor doubted by the respondents. The objection as taken thus clearly appears to be overly technical and unsustainable.
The argument based on sub-sections (4) and (5) is equally misconceived. One must bear in mind that the CGST Act is principally concerned with the levy of a tax on intra-State supply of goods and thus presupposes the possibility of an entity having more than one establishment or a place of business in different States of the Union. It is this basic objective of the enactment that informs subsections (4) and (5) of Section 25 and the Legislature thus, out of abundant caution, having overridden the otherwise jurisprudential precept of branch offices not being separate and distinct juridical entities.
The impugned Order-in-Appeal dated 07 June 2022 which had upheld the Order-in-Original dated 29 June 2021 is quashed - petition allowed.
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2024 (10) TMI 441
Validity of notices issued to a dead person - challenge to assessment orders passed based on such notices are void ab initio or not - violation of principles of natural justice - HELD THAT:- On perusal of records, it is seen that the deceased, viz., Mr.Ramasamy Singaravelan was an assessee on the files of the respondent under the provisions of Tamil Nadu Goods and Service Tax Act, 2017 and the said person died as early as on 07.05.2022, however, the respondent, who is ignorant of the said fact has been continuously issuing notices in the name of the said deceased person and also passed assessment orders and not stopping with that also proceeded to initiate recovery proceedings. The petitioner came to know about the impugned proceedings only when the same was intimated by the respondent through phone call and on receipt of the recovery notice.
Thus, it is crystal clear the impugned orders are ex parte orders, and suffers from violation of principles of natural justice and de hors the same, the notices issued to an assessee, who is no more and assessment orders passed based on such notices are void ab initio and liable to be set aside. Hence, this Court is inclined to set aside the impugned orders.
The orders impugned as well as the consequential orders towards initiation of recovery proceedings are set aside - the matters are remitted back to the respondent for fresh consideration - petition allowed by way of remand.
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