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Showing 261 to 280 of 467 Records

• 2025 (1) TMI 207
  

  Challenge to proceedings under Section 129 of GST Act - Seizure of goods - E-Way Bill not filled - intent to evade tax or not - HELD THAT:- The facts which are admitted and disclosed from the records are these. There was no discrepancy in the goods which were physically found at the time of inspection and details of goods recorded in the E-Way Bill available with the driver of the vehicle. The authorities below have not found any intent to evade tax.

  This Court has set its face against initiation of proceedings under Section 129 of GST Act in the wake of mere technical breaches. When substantial compliance of the provisions is disclosed and when the physical inspection of goods tallies with the goods declared in the E-Way Bill and no intent of tax evasion is made out, proceedings under Section 129 of GST Act become vitiated.

  In VSL ALLOYS (INDIA) PVT. LTD. VERSUS STATE OF U.P. AND ANOTHER [2018 (5) TMI 455 - ALLAHABAD HIGH COURT] this Court has held 'In the present case, all the documents were accompanied the goods, details are duly mentioned which reflects from the perusal of the documents. Merely of none mentioning of the vehicle no. in Part-B cannot be a ground for seizure of the goods. We hold that the order of seizure is totally illegal and once the petitioner has placed the material and evidence with regard to its claim, it was obligatory on the part of the respondent no.2 to consider and pass an appropriate reasoned order. In this case, no reasons are assigned nor any discussion is mentioned in the impugned order of seizure and notice of penalty.'

  Conclusion - When substantial compliance of the provisions is disclosed and when the physical inspection of goods tallies with the goods declared in the E-Way Bill and no intent of tax evasion is made out, proceedings under Section 129 of GST Act become vitiated.

  The impugned order dated 22.12.2023 passed by the respondent no. 2, Additional Commissioner, Commercial Tax Grade-2 (Appeal)-I, State Tax, Noida is unsustainable and is quashed - petition allowed.

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• 2025 (1) TMI 206
  

  Invocation of extraordinary jurisdiction of this Court under Article 226 of the Constitution challenging the impugned notice, primarily, on the ground that any decision taken pursuant to the impugned notice would be violative of principles of natural justice - HELD THAT:- It is found that the expected response from the Petitioner is already reflected at S. No. 9 of Part-B of the impugned notice. That apart, the Petitioner also claims to have filed a detailed representation explaining its position.

  The ends of justice would be served by disposing of this Petition by directing the concerned tax authority to take a final decision in the matter, after considering the representation stated to have been filed by the Petitioner and the response reflected against S. No. 9 of Part-B of the impugned notice.

  Petition disposed off.

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• 2025 (1) TMI 205
  

  Challenge to order issued u/s 130 of the CGST/SGST Act - petitioner's registration had been canceled prior to the proceedings - transportation of goods without proper documentation - HELD THAT:- The petitioner has not made out any case for interference with Ext.P4. Admittedly certain goods were being transported without the cover of any documents. The case of the petitioner that he is a dealer whose registration had already been canceled and the goods that were being transported are items, the expiry date of which was already over and the goods have been taken over/purchased by a person named Lohi cannot be accepted for more reasons than one. Even assuming that the case of the petitioner now put forth before this Court is correct, the registered person ought to have transported the goods under cover of proper documents. The fact that the registration of the petitioner was canceled does not absolve him of the liability to comply with the provisions of the GST laws and even on the petitioner’s own showing there was a sale of goods by the petitioner to the registered person for a consideration of Rs. 1,90,000/-. Therefore it cannot be said that the proceedings under Section 130 were wrongly initiated and concluded against the petitioner.

  Conclusion - Cancellation of registration does not exempt a person from compliance with GST provisions. Proper documentation is mandatory for the transportation of goods.

  Petition dismissed.

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• 2025 (1) TMI 204
  

  Amendment made to Section112 of the Central Goods and Services Tax Act, 2017 substituting “twenty per cent” pre deposit to “ten per cent” for maintaining an appeal before the Goods and Services Tax Tribunal - HELD THAT:- As of now pre-deposit has been reduced to “ten per cent” but however, the same is made effective only from 01.11.2024. It is an admitted position that the GST Tribunals have not been constituted as yet and there is no possibility of an appeal being filed prior to 01.11.2024. In such circumstance we direct that the assessee on payment of “ten per cent” of the tax amounts in dispute shall be entitled to stay of recovery till the Tribunal is constituted and an appeal is filed within such term as provided therein.

  Petition disposed off.

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• 2025 (1) TMI 203
  

  Seeking withdrawal of the writ petition to avail the appellate remedy - HELD THAT:- Liberty granted, but with just exceptions as to limitation which will have to be considered by the Appellate Authority as per the statute and in accordance with law.

  The writ petition stands dismissed as withdrawn.

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• 2025 (1) TMI 202
  

  Challenge to order issued under Section 73 of the Gujarat Goods and Services Tax Act, 2017 - jurisdiction to initiate the proceedings when the respondent No.3 has already initiated the same by issuing the notice in Form GST DRC-01A dated 05.12.2023 - HELD THAT:- Issue Notice, returnable on 05.12.2024.

  By way of ad-interim relief no coercive action shall be taken by the respondent Nos.1 and 2 against the petitioner qua the impugned order only.

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• 2025 (1) TMI 201
  

  Rejection of refund application filed by the petitioner on the ground that it is filed belatedly and beyond the time permitted by Section 54 of the Central Goods and Services Tax/State Goods and Services Tax Acts, 2017 - HELD THAT:- Rule 90 of the CGST Rules deals with acknowledgement of an application for refund. Sub-rule (3) of Rule 90 of the CGST Rules no doubt requires the filing of a fresh refund application after rectification of deficiencies pointed out in respect of the first application. However, the said sub-rule does not contemplate that the date of the fresh application has to be considered for the purposes of determining the period of limitation for filing an application for refund under sub-section (1) of Section 54 of the CGST/SGST Acts - The rejection of the application for refund filed by the petitioner by Ext.P4 communication on the ground that the second application filed by the petitioner was beyond the time specified in subsection (1) of Section 54 of the CGST/SGST Acts cannot be sustained in law.

  Conclusion - The date of the original refund application should be considered for time limit purposes under Section 54, provided deficiencies are rectified. Rule 90(3) should not reset the statutory time limit.

  Petition allowed.

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• 2025 (1) TMI 200
  

  Classification of chewing tobacco - to be classified under the heading 2403 99 10 of Customs Tariff Act, 1975 or under Heading 2401 20 90 of the Customs Tariff Act, 1975? - demanding higher compensation cess leviable under the Goods and Service Tax (Compensation to States) Act, 2017 at 160% at Serial No.26 to Notification No.1/2017 - Compensation Cess (Rate), dated 28.06.2017 - HELD THAT:- The Hon'ble Supreme Court in State of Madras Vs. Bell Mark Tobacco Co.[1966 (10) TMI 106 - SUPREME COURT], while dealing with the levy of sales tax under the provisions of Madras General Sales Tax Act, 1939 concluded that the chewing tobacco was the manufactured product following the decision in State of Madras Vs. Swasthik Tobacco Factory [1965 (12) TMI 90 - SUPREME COURT]. There, the Court has held that the expression "in respect of the goods" in rule 5 (1) (i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, means "on the goods", and therefore only the excise duty paid on the goods sold by the dealer is deductible.

  The petitioner continued to file returns and did not surrender the GST registration. It appears that on 12.11.2018, the petitioner has stated that, the petitioner has also supplied chewing tobacco by classifying the product under heading 2403 99 10 by paying GST compensation cess at 160 % in terms of Serial No.26 of Notification No. 1/2017 – Compensation Cess (Rate), dated 28.06.2017 even during the period of Jan 2018 to May 2018 and that from 1st June 2018 to September 2018, paid cess at 72 % by classifying the same product under Tariff Heading 24 03 99 20 - It is the elementary principle that insofar as the classification of products are concerned an assessee cannot change the classification merely to take advantage or benefit of any rate/concession. Classification can also not be altered because the product will attract higher rate of duty/tax. In this case, admittedly, the respective petitioners have classified their products under Heading 2403 99 10 of the Central Excise Tariff Act, 1985 which is similar to Customs Tariff Act, 1975 which are based on HSN Classification.

  Tariff Heading 2403 99 20 pertains to “Preparations Containing Chewing Tobacco”. Such preparations are clearly banned in terms of the Government orders issued by Government of Tamil Nadu under regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011. The classification adopted by the said petitioner under 2403 99 20 would not have permitted the petitioner to manufacture and sell the products - There is no difference between the Tariff classification under the Central Excise Tariff Act, 1985 under Tariff Heading 2403 99 10 and under Customs Tarrif Act, 1975. Under the respective Customs Tarrif Act, 1975, goods falling under the main Tariff Heading 2403 is “Other Manufactured Tobacco And Manufactured Tobacco Substitutes; “Homogenised” or “Reconstituted” Tobacco, Tobacco Extracts Essences”.

  Conclusion - The petitioners' products are to be classified under Heading 2403 99 10, and the Advance Ruling decisions are binding. The food safety regulations do not affect GST classification.

  Petiton dismissed.

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• 2025 (1) TMI 199
  

  Challenge to order passed under Section 107 of the CGST/WBGST Act, 2017 - delay in filing the appeal - HELD THAT:- Taking note of the fact that the determination on merits would not only involve detailed scrutiny of records but also determination on factual issues and taking note of the fact that the Appellate Tribunal is yet to be constituted, it would be prudent at this stage to remand the matter to the appellate authority under 107 of the said Act subject to the petitioner’s making payment of 20 per cent of the remaining amount of tax in dispute with the respondents towards additional pre-deposit and upon payment of cost of Rs. 25,000/- to the Calcutta High Court Legal Services Committee.

  Petition disposed off.

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• 2025 (1) TMI 198
  

  Maintainability of petition - availability of alternative remedy - All that client wants is an opportunity of hearing pursuant to he being permitted to file reply - violation of principles of natural justice - HELD THAT:- Revenue is directed to accept petitioner’s reply to the show-cause notice, if submitted on or before 11th September, 2024 along with website copy of this order. Revenue will consider the reply and pass order afresh. For the purpose, impugned order is set aside.

  Petition disposed off.

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• 2025 (1) TMI 197
  

  Challenge to assessment order issued u/s 73 of the CGST Act, 2017 - non-application of mind on the part of the first respondent - violation of principles of natural justice - HELD THAT:- It is evident that the petitioner duly filed a reply to the show cause notice on 08.02.2024. However, without considering this reply, the first respondent proceeded to pass the impugned order as if no reply had been submitted, clearly demonstrating a total non-application of mind on the part of the first respondent. Therefore, the impugned order is liable to be set aside and is accordingly set aside.

  The matter is remanded to the first respondent, who shall consider the reply filed by the petitioner on 08.02.2024 and, after issuing a clear 14-days notice specifying a date of personal hearing, pass appropriate orders on merits and in accordance with law, as expeditiously as possible - Petition disposed off by way of remand.

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• 2025 (1) TMI 196
  

  Levy of GST - differential amount received by the petitioner due to foreign exchange rate fluctuation constitutes "turnover" or not - entitlement for deductions from turnover - HELD THAT:- While it may be a fact that the differential amount that is sought to be taxed by the Revenue in fact represents the benefit of an upward exchange rate fluctuation that accrued to the petitioner, it does not detract from the fact that what was received by the petitioner was nothing but the consideration for the sale of equipment’s that it had contracted to supply. Under the KGST Act, the word “turnover” means the aggregate amount for which goods are either bought or sold, supplied or distributed by a dealer, either directly or through another, on his own account or on account of others, whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant, or otherwise, shall be excluded from his turnover. Explanation (1A) to the definition makes it clear that the turnover in respect of a works contract shall be the aggregate amount received or receivable by the dealer for the transfer of goods (whether as goods or in some other form) involved in the execution of such contract.

  Whether, on account of the exchange rate fluctuation, the benefit of which accrued to the petitioner, the receipt in the hands of the petitioner partook of a nature different from turnover for the purposes of taxation? - HELD THAT:- What accrued to the petitioner was nothing but a realisation in Indian Rupees of the turnover attributable to the works contract performed by it, which was expressed in US Dollars. Further, insofar as the permissible deductions under the KGST Act and Rules have already been granted to the petitioner, the differential amount in the hands of the petitioner represents differential turnover that has not been subjected to tax.

  Conclusion - Exchange rate fluctuations affecting the sale price in foreign currency do not alter the nature of the amount as turnover under the KGST Act. The statutory definition of turnover encompasses such amounts when converted to Indian Rupees.

  Revision dismissed.

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• 2025 (1) TMI 195
  

  Jurisdiction and power to issue SCN u/s 61 of the JGST Act - HELD THAT:- This writ petition is disposed of by giving liberty to the petitioner to explain the reason which has been sought in the second show-cause, within two weeks and the authority concerned will consider the same in accordance with law and depending upon the conclusion, follow-up action be taken in view of the mandate of Section 61 of the JGST Act.

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• 2025 (1) TMI 194
  

  Rejection of appeal on the ground of delay - HELD THAT:- The impugned order dated 9th May, 2024 rejecting the appeal is set aside. It is restored to file and number, for being expeditiously dealt with on merits by the appellate authority. Mr. Roy submits, his client will diligently prosecute the appeal to avail opportunity of hearing.

  Petition allowed.

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• 2025 (1) TMI 193
  

  Challenge to summary of order - absence of a detailed order under Sections 73 and 74 of the GST Act - lifting of attachment of bank accounts of petitioner - HELD THAT:- The impugned summary of 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 and ab initio and is accordingly hereby to be quashed and set aside.

  Petition allowed.

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• 2025 (1) TMI 192
  

  Seeking a Writ of Mandamus directing respondents to pay to the petitioner amount towards the applicable GST payable by respondents - HELD THAT:- Petition disposed off in view of [2023 (6) TMI 93 - KARNATAKA HIGH COURT]

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• 2025 (1) TMI 191
  

  Cancellation of registration of petitioner - SCN is not a reasoned one - violation of principles of natural justice - HELD THAT:- Issue decided in the case of M/S. NICE ENTERPRISES VERSUS THE DEPUTY COMMISSIONER ST STUI [2024 (9) TMI 98 - TELANGANA HIGH COURT] where it was held that 'There are substance in the argument of learned counsel for the petitioner that such a notice runs contrary to principles of natural justice and deprives the assessee to file an effective reply to the show cause notice.'

  The impugned order set aside - petition disposed off.

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• 2025 (1) TMI 190
  

  Non-refelction of remitted GST in return GSTR due to some technical reasons - failure to remit GST on the supply made but there are valid tax invoices, proof of payment of the value of goods along with the GST component to the respective suppliers - no clear proof of payment of consideration and tax towards the inward supply and non-receipt of goods in possession - HELD THAT:- Similar questions of facts and law involved in these writ petitions in M/S. M. TRADE LINKS [2024 (6) TMI 288 - KERALA HIGH COURT] where it was held that 'The time limit for furnishing the return for the month of September is to be treated as 30th November in each financial year with effect from 01.07.2017, in respect of the petitioners who had filed their returns for the month of September on or before 30th November, and their claim for ITC should be processed, if they are otherwise eligible for ITC.'

  Conclusion - Procedural amendments to tax laws can be applied retrospectively to ensure fairness, and that remedial measures should be available to address bona fide compliance issues.

  Petition disposed off.

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• 2025 (1) TMI 189
  

  Violation of principles of natural justice - failure to consider the petitioner's reply - singular contention is that the exercise of issuance of show-cause notice should not be an empty formality - HELD THAT:- In furtherance of show-cause notice, the petitioner filed reply which has not been considered. This exercise of issuance of notice and obtaining a reply, in our opinion, is not an empty public relation exercise. Instead, it is the codification of principles of natural justice in the statute and the said principle mandates that said reply be obtained before passing any adverse order and there must be an application of mind by considering the reply of the petitioner. In the instant case, in a hasty manner, without application of mind, the impugned order has been passed.

  Conclusion - The issuance of a show-cause notice and the consideration of any reply thereto are integral to the principles of natural justice. Failure to consider a reply before passing an adverse order constitutes a breach of natural justice.

  The impugned order dated 09.05.2024 is set aside by reserving liberty to the respondents to consider the reply of petitioner and pass a fresh order - Petition disposed off.

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• 2025 (1) TMI 188
  

  Classification of goods - leasing of electric vehicles (E-Bikes/ EVs) without operator - to be classified under the heading 9973 or not - applicability of Sl. No. 17 (viia) or (iii) of the Notification No. 11/2017-CT (R) dated, 28^th June, 2017 as amended vide Notification No. 20/2019 30th September, 2019? - rate of tax - HELD THAT:- On examination of the terms and conditions of the Vehicle Lease Agreement, it is seen that the lessor agrees to give and deliver over to the lessee Electric Vehicles (EVs) on lease for forty-eight months unless termination of the contract/agreement. The lessee shall be responsible for regular repair and maintenance of the EVS at his own cost and shall bear and pay running expenses of the EVs. The lessee shall be solely responsible for timely renewal of all legal documents i.e. Registration Certificate, Road Permit, Fitness Certificate and Insurance Policies etc. mandatory for running of the EVs as per applicable laws during the tenure of agreement. The lessee shall keep the EVs insured at all times during the subsistence of this agreement against all risks and bear all the premiums payable to insurance company. In the event of rejection of insurance claim the onus of bearing the repair cost shall be on the lessee.

  It is also apparent that all the attributes laid down by the Hon'ble Supreme Court are evident in this transaction as per the Vehicle Lease Agreement. The said agreement is very clear that the goods available for delivery are 'e-bikes' which are goods. The said agreement provides legal rights to use e-bikes to the lessee. The lessor, during the continuance of the agreement cannot assign, pledge, mortgage, lend or part with the possession of the EVs and cannot allow the said EVs to be used by anybody else except as per the terms of this agreement. So, in the present transaction, it can be said that effective control and physical possession of the goods have been transferred by the supplier Applicant (lessor) to the recipient of the goods (lessee). While using such e-bikes or during the tenure of agreement, the vehicles continue to be in possession of the lessee and the transaction involves transfer of right to use such goods. In other words, the lessee has the possession & effective control of the goods in all respect.

  Reliance is also placed on the judgment of Hon'ble Apex Court in THE GREAT EASTERN SHIPPING CO. LTD. VERSUS STATE OF KARNATAKA & OTHERS [2019 (12) TMI 225 - SUPREME COURT], wherein the Hon'ble Court while interpreting the expression “transfer of right to use the goods' i.e. in respect of use of a vessel, in a VAT matter (which is the extended definition of deemed sale as per Article 366 (29A) (d) of the Constitution of India) had observed that the vessel was available for delivery and in fact, had been delivered; that there was no dispute as to the vessel and charter had a legal right to use the goods, and the contractor had no right to give the vessel for use to anyone else. This decision is fully applicable to be given fact of the present matter.

  Conclusion - Leasing of electric vehicles (E-Bikes) without operator is classifiable under the heading 9971 i.e. Financial and related services under entry Sl No. 15 (ii) of Notification No. 11/2017-CT (R) dated, 28th June, 2017 as amended vide Notification No. 20/2019-CT (R) dated, 30th September, 2019” and the rate of tax will be the same rate as applicable on supply of like goods involving transfer of title in goods.

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