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Showing 481 to 500 of 17986 Records
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2023 (12) TMI 956
Money Laundering - grant of bail - whether the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded? - HELD THAT:- It is by now well settled and recognized principle of law that, prolonged custody amounts to infringement or violation of Article 21 of the Constitution of India of an accused. There is no debate that, incarceration in custody for long period without trial or completion of trial affects personal liberty guaranteed under Article 21 of the Constitution of India of an accused.
In the present case, as per the submissions of the learned senior counsel for the Petitioner, admittedly the Petitioner is in custody for more than five years and eight months. The trial Court has not yet framed charge in the case and the likelihood of completion of trial of the Petitioner in the present case within reasonable time is very bleak
The maximum sentence prescribed under Section 3 of the PMLA is 7 years. The period of incarceration undergone by the Petitioner has exceeded the substantial part of the prescribed sentence. It appears that, the Petitioner has already completed 3/4 of his sentence, if convicted and sentenced for minimum punishment of 7 years. The fact on record remains that, the Petitioner is in custody/house arrest for last more than five years and eight months for an offence wherein the maximum punishment prescribed is seven years.
The Petitioner is released on bail during the pendency of the present Petition on fulfilment of conditions imposed - bail application allowed.
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2023 (12) TMI 955
Levy of service tax - rental income, compensation amounts received and the legal expenditure displayed on the official Website of Telangana Waqf Board - petitioner-Waqf Board claimed that it has no property nor given any property for lease/rent for commercial purpose - jurisdiction of respondent No. 3 to pass impugned order - time barred by the period prescribed in Section 73(1) of the Act or not - HELD THAT:- The relevant assessment years in the impugned proceedings are between 2014-15 to 2017-18. Indisputably, from April, 2014 to 02.06.2014 as the State was united the jurisdiction was with the Principal Commissioner, Visakhapatnam. The petitioner is not disputing that after 02.06.2014 the respondent No. 3 is having jurisdiction to conduct proceedings over the disputed issue. It is not the case of the petitioner that the properties referred to in the impugned proceedings and the order are not within the territorial limits of the State of Telangana and within jurisdiction of the respondent No. 3 - the location of the tax payer is crucial to determine the jurisdiction. As the petitioner and the related properties are situated within the jurisdiction of the respondent No. 3 by the date of institution of proceedings we find no discrepancy of jurisdiction of the respondent No. 3 in the proceedings.
The other essential contention put-forth is that, as part of cause of action is time barred, the entire proceedings shall fail is also not found acceptable, since the tax liability and its effect is distinct for every assessment period and each lapse would give rise to separate cause of action - Further as the limitation is a mixed question of fact and law, to arrive at just conclusion fact finding is essential, therefore appropriate jurisdiction for scrutinizing the relevant material, would be the appeal. In addition, though the petitioner has asserted that a part of time barred cause of action would effect rest of the period has remained unsubstantiated with any legal position.
The petitioner is statutory body. As per the Wakf Act, 1955 the petitioner has to maintain the finances of the wakf institutions by exercising superintendence over the manager of the wakf/mutawalli and even in audit of the accounts of wakf properties. Further, Section 58 of the Wakf Act contemplates that the petitioner is liable in case of default by mutawalli who refuses or fails to pay any revenue, cess, or tax due to the Government or any local authority. In this statutory prescription, the petitioner’s claim that it has no concern is found untenable. That apart though the petitioner asserted that the services are exempted from the tax no such material has been placed for consideration. Be that as it may, it is open for the petitioner to place the relevant material before the appellate authority and claim.
The contention of the petitioner as to the jurisdiction has no merit and in absence of tenable grounds for judicial review under Writ Jurisdiction, the extraordinary jurisdiction cannot be exercised - petition dismissed.
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2023 (12) TMI 954
Recovery of service tax alongwith interest - sale and renting of space for advertising purposes from 01.05.2006 onwards - invocation of extended period of limitation.
Liability of appellant to pay service tax - HELD THAT:- The appellant is a statutory corporation formed under Road Transport Corporation Act, 1950 and is an instrumentality of the State Government and is operating its buses for the convenience of travelling public within and outside the state of Himachal Pradesh. Further, the corporation is not directly engaged in advertising business and does not possess expertise as an advertisement consultant - In order to prove the payment of service tax, the appellant has also placed on record the affidavit of one Mr. Parveen Bansal, Director of M/s Pisces Communications Pvt. Ltd. alongwith the copies of Challan in order to establish the payment of service tax of Rs. 16,19,883/- in the Government Treasury. They have also placed on record the copies of various challans evidencing the payment of service tax by M/s Pisces Communications Pvt. Ltd. Since, the service tax of Rs. 16,19,883/- stands deposited by the agent of the appellant, the same cannot be demanded again from the appellant - the demand of service tax alongwith interest and penalty is not sustainable in law and therefore the same is set aside.
Extended period of limitation - HELD THAT:- Since the appellant is a State Government Undertaking it cannot be inferred that they had an intention to evade payment of tax - the coordinate bench of the Tribunal in the case of M/S GD GOENKA PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX, DELHI SOUTH [2023 (8) TMI 995 - CESTAT NEW DELHI] has considered in detail the issue of limitation and what is required to be proved by the Revenue in order to invoke the extended period of limitation to confirm the demand - extended period of limitation cannot be invoked.
The impugned order is not sustainable in law on merit as well as on limitation and therefore, the same is set-aside - appeal of the appellant allowed.
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2023 (12) TMI 953
Levy of service tax - amount retained by the appellant from fees of the Doctor on account of infrastructure support to the doctor - non compliance of the procedure of Rule 6(3A) can lead to a demand under Rule 6(3) despite the fact the appellant have reversed the amount in terms of Rule 6(3A) of Cenvat Credit Rules or not - extended period of limitation.
Whether the appellant is liable to pay service tax on the amount retained from the fees received on behalf of the doctors for treatment of patient? - HELD THAT:- This issue is no longer res-integra as in the various judgments, it has been held that the part of the amount of doctor’s fees retained by the respondent towards infrastructure support is not liable to payment of service tax - reliance can be placed in M/S SIR GANGA RAM HOSPITAL VERSUS COMMISSIONER OF SERVICE TAX, NEW DELHI [2020 (11) TMI 536 - CESTAT NEW DELHI] and M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI] - thus, the issue is settled in favour of the assessee, therefore, demand on this count is not sustainable.
Whether demand of cenvat credit is sustainable under Rule 6(3) on the ground that the appellant have not followed the procedure such as intimation to opt for Rule 6(3A) was not given? - HELD THAT:- There is no dispute that the appellant have correctly paid the amount as required under Rule 6(3A) of Cenvat Credit Rules, 2004. The only lapse on the part of the appellant is that they have not given intimation to the department for opting of this option - merely for a procedural lapse when the amount was correctly paid under Rule 6(3A), no demand is sustainable - reliance can be placed in M/S. CRANES & STRUCTURAL ENGINEERS VERSUS COMMISSIONER OF CENTRAL EXCISE [2016 (8) TMI 387 - CESTAT BANGALORE] - it is settled that once the amount prescribed under Rule 6(3A) was paid by the appellant, no further demand is sustainable. Hence, the demand on this count is also not sustainable.
As regard the issue raised on limitation, since the entire case has been decided on its merit, the aspect of limitation not taken up and the same is left open.
The demand is not sustainable, hence, the impugned order is set aside - Appeal allowed.
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2023 (12) TMI 952
Issuance of second SCN invoking extended period of limitation - Recovery of service tax alongwith interest and penalty - Manpower Recruitment or Supply Agency Service - HELD THAT:- The present SCN dt. 22.4.2013 has been issued for the very same period. The work sheet enclosed along with SCN in page 51 of the paper book shows that the figures for the present demand under MRSA service have also been obtained from ST-3 returns of the very same period filed by the appellant. It is brought out from these returns, that in the returns the appellant had declared exempted services for certain amounts. The present demand is raised under MRSA services and not WCS on the basis that these amounts shown as exempted are taxable under MRSA services as it involves supply of labour. The work orders issued by M/s.Comtech, M/s.Espee Tech & M/s.D.R Associates show that the work orders are for executing welding, fabrication works at site - the department would have come across the figures declared as ‘exempted services’, while perusing the ST-3 returns for issuing earlier SCN by invoking extended period. Therefore all information when available before the department a second show cause notice alleging suppression of facts cannot sustain. The department when equipped with all facts as declared in the ST-3 returns ought to have initiated proceedings on all grounds in the first SCN itself.
In regard to work order issued by M/s.Comtech to the appellant for whom welding, fabrication for ship building works were carried out a letter dt. 03.07.2008 is issued by M/s.L&T Ltd. (customer) stating that the activity does not involve rendering of services and would fall under ‘manufacture’ as under Section 2(f) of Central Excise Act, 1994. So also, on perusal of the work orders, the activity rendered by the appellant for the other two customers appears to be identical - The appellant is a sub-contractor of M/s.Comtech, M/s.DR Associates and M/s.Espee Tech. The issue as to whether sub-contractor is liable to discharge service tax was under litigation. During the relevant period, The Board vide its Circular No.23/3/97-ST dt. 13.10.1997, TRU letter F.No.341/18/2004-(pt) dt. 17.12.2004 had clarified that sub contractor is not required to pay service tax.
The second show cause notice issued invoking extended period on the basis of very same ST-3 returns filed by appellant cannot sustain and requires to be set aside - the SCN is time barred. The impugned order is set aside - Appeal allowed.
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2023 (12) TMI 951
Refund of service tax paid - appellant was not able to furnish lorry receipts giving the details of Invoice/Shipping bill issued by the transporters - non-compliance with the condition in Notification No.17/2009-ST dt. 7.7.2009 - HELD THAT:- The department has given the details of the transportation charges in the SCN itself. The appellant has also furnished a Chartered Accountant certificate certifying the correlation with the transportation charges as well as the shipping bills. There is no dispute that these charges were paid by the appellant for export of goods. The non-production of lorry receipts is only a procedural infraction for which the substantive right of refund claim cannot be rejected.
In the appellant's own case, the Commissioner (Appeals) for a different period has allowed the refund claim observing that the non-production of lorry receipt is a procedural infraction and that when the appellant as furnished Charted Accountant certificate, the same has to be accepted. The department cannot take a different view in similar situation of the same appellant for a different period.
The rejection of refund claim on procedural grounds cannot be justified - the appellant is eligible for refund - the impugned order is set aside - appeal allowed.
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2023 (12) TMI 950
Clandestine removal - paints and varnishes - manufacture of goods bearing the brand names “REAL” and “NICE” of another person - ineligible to grant SSI exemption - suppression of facts - extended period of limitation - HELD THAT:- Apparently and admittedly there is no retraction to the admissions that appellants were engaged in clearances/sale of manufactured goods without proper invoices. The fact of having any assignment deed to have been executed in November 2010 was not brought to the notice of the investigation team at the time of search on 13.09.2011. The said assignment deed bears notarization of 24.11.2011 (as recorded by Commissioner (Appeals) in Para 9 of the order under challenge) i.e. the date after the searches were conducted in the appellant’s premises. Thus there are no infirmity in the order of the adjudicating authorities below when the said assignment deed as is stated to have been executed in favour of M/s. Real Industrial Coating (Appellant No. 1) to be an afterthought.
The department has been meticulous in checking the records about brand names/trade marks from the portal for the purpose as is maintained by Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, Controller-General of Patent Designs and Trade Mark as recorded in Para 11 of the order under challenge. It is on record that during the period of investigation also the portal was still recording Shri Gulshan Kumar Matta as the brand owner instead of Shri Rambaksh Matta of M/s. Real Industrial Coating - there are no infirmity with the findings of authorities below that the brands ‘REAL’ and ‘NICE’ were the brands of a different person/third party than the manufacturer in the present case i.e. M/s. Real Industrial Coating was not the owner of these brands - the said exemption has rightly been denied to the appellants.
It is also observed that all the appellants herein while being examined during the investigation have admitted that the goods in question were cleared without the cover of proper invoices. 40% of the goods thereof were sold and purchased on kacchi parchis. The said kacchi parchis were recovered from all the premises as were searched during investigation and were taken on record as relied upon documents. Those documents are held to be the sufficient corroboration to the said admission of the appellants which apparently has never been retracted - The appellants have failed to produce any document which may corroborate the authenticity of the assignment deed of 27.11.2010. No evidence is produced to falsify the website extracts - there are no reason to differ when these admissions have been accepted as the sufficient proof of appellants’ alleged guilt - In the light of the said admission the present becomes a case of suppression of fact, fraud and collusion. Hence, the department has rightly invoked the extended five years period of limitation.
The show cause notice is dated 09.07.2015. The period of limitation (2 or 5 years, as the case may be) has to reckon from the relevant date, as is apparent from Section 11A(1)(a) and Section 11A(4) of Central Excise Act. As per Section 11A(3) of Central Excise Act, the period for issuing show cause notice shall be computed from the date of receipt of information to Central Excise Officer, about payment of duty, in writing, which shall be the date of filing returns - there are no reason to differ from the findings of the adjudicating authorities below that the show cause notice is issued prior the relevant date for the said period. Hence, the order to that extent is also sustainable.
The order under challenge is held sustainable - Appeal dismissed.
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2023 (12) TMI 949
Wrongful re-credit of CENVAT credit while availing the exemption under the Notification No.56/2002 - recovery of erroneous refund - levy of penalty.
It is the case of the Revenue that learned Commissioner has erred in as much as he did not impose penalty equivalent to the duty evaded in terms of Section 11AC.
HELD THAT:- Whereas the Commissioner has confirmed the demand of wrongfully availed credit of Rs.1,05,61,543/- under Section 11A and imposed penalty of Rs.20,39,919/-. Reasoning given by Commissioner was that the time under which the issue was under Stay can be excluded. We are of the opinion that Section 11AC does not provide for any such exclusion. Penalty under Section 11AC is related to the amount of duty evaded. Learned Commissioner could not have upheld the invocation of Section 11AC and imposed reduced penalty. The wordings of the Section 11AC are clear and therefore, there is no scope for any doubt in this regard.
The penalty is required to be imposed equal to the duty evaded or credit wrongfully availed or duty erroneously refunded.
The impugned order is modified to the extent of increasing the penalty imposed under Section 11AC from Rs.20,39,919/- to Rs.1,05,61,543/-. The appeal is, accordingly, allowed.
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2023 (12) TMI 948
Dishonour of Cheque - present complaint was filed without appreciating that the petitioner was not responsible for the conduct of the business of the Company at the relevant time - complaint does not contain any specific allegation against the petitioner to attract sections 138 and 141 of the NI Act - violation of principles of natural justice - HELD THAT:- Section 141 of the NI Act provides for a constructive liability which is created by a legal fiction. Section 141 of the NI Act being a penal provision should receive strict construction and compliance. If the accused played insignificant role in the affairs of the company, it may not be sufficient to attract the constructive liability under section 141 of the NI Act. The petitioner is claiming that he was appointed as the Regional Sales Manager in the accused no. 1 with effect from 01.10.2015 vide offer letter dated 28.05.2015 at a monthly salary of Rs. 50,000/-. The accused nos. 2 and 3 are the first director of the accused no. 1 as per Memorandum of Association.
If the petitioner was not responsible for affairs of the accused no. 1 despite being promoted as Additional Director of the accused no. 1, it can only be established and proved in accordance with law during the trial of the complaint under section 138 of NI Act. The petitioner has not placed or submitted any document which can reflect that the petitioner has never participated in conduct of business of the accused no. 1. The petitioner cannot be absolved from his liability qua the cheques in question by merely pleading that he was not responsible for day to day affairs and conduct of the business of the accused no. 1. The arguments advanced by the counsel for the petitioner are without any legal support.
The present complaint cannot be dismissed qua the petitioner. The present petition alongwith pending application is accordingly dismissed.
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2023 (12) TMI 947
Dishonour of Cheque - Insufficient Funds - legality of judgment of acquittal - existence of legally enforceable debt or not - accused had issued the cheque in discharge of the liability of Surinder Singh and the learned Trial Court erred in ignoring this position - HELD THAT:- The absence of any agreement will not make the case of the complainant doubtful - the cross-examination of the complainant or his witness was insufficient to rebut the presumption and it was duly proved on record that the accused had issued a cheque in discharge of his liability. Learned Trial Court erred in holding otherwise.
Hem Chand (CW-1) stated that the cheque(Exhibit C-1) was deposited with the bank. The cheque was dishonoured due to insufficient funds. He admitted in his cross-examination that the account of the accused was closed. It is apparent from the statement of this witness that the cheque was dishonoured due to insufficient funds, was not challenged in the cross-examination and has to be accepted as correct.
Testimony of this witness will not make the case of the complainant suspect because the cheque was drawn on Oriental Bank of Commerce and the official of the said bank specifically stated that the cheque was dishonoured due to insufficient funds. Therefore, the next requirement that a cheque was dishonoured due to insufficient funds has been duly established - The complainant stated that he issued the legal notice (Ext. C-3) asking the accused to make the payment within 15 days. Postal receipts (C-4 and C-5) and acknowledgement (C-6) corroborates his testimony. The acknowledgement shows that the registered cover was returned after delivery; therefore, it is duly proved that legal notice was duly served.
It was duly proved that the cheque was issued in discharge of the legal liability, which was dishonoured due to insufficient funds and the accused had not made the payment despite receipt of a valid notice of demand - the complainant has proved all the ingredients for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act.
The learned Trial Court did not consider the presumption attached to the cheque and the suggestions made to the complainant and his witnesses. It had taken a view which could not have been taken by any reasonable person. The judgment of the learned Trial Court proceeds in ignorance of the settled position of law and the same is liable to be interfered with even in an appeal against the acquittal.
The present appeal is allowed.
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2023 (12) TMI 946
Seeking immediate action in furtherance to the lock and seal notice and demolish the unauthorised construction of the building - HELD THAT:- When the matter is taken up for hearing, the learned Standing Counsel appearing for the Chennai Corporation/3rd respondent would state that the building in question is now under lock and seal and to settle scores between the parties, they have to approach the appropriate Forum.
Seeking to contribute funds for completing the construction of the unfinished apartments and also to compensate the home buyers for the inordinate delay in completion of the construction and for other reliefs - HELD THAT:- It has been stated that though M/s. Vasavi Builders /25th respondent herein is a partnership firm, most of the financial transactions of Vasavi Builders with that of the Home Buyers were exercised in the Account of M/s.Vasavi Housing and Infrastructure Limited. Further, Section 60(3) of Insolvency and Bankruptcy Code 2016 clearly states that any case relating to the Corporate Debtor pending in any Court or Tribunal shall be transferred to the Adjudicating Authority (NCLT Chennai) dealing with the Insolvency Resolution Process or Liquidation Proceedings of such Corporate debtor. In the present case, the connected proceedings are pending before National Company Law Tribunal, therefore, any further action can be settled before NCLT.
Petition closed.
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2023 (12) TMI 945
Professional misconduct - power of High Court to revise an order passed by the Council under Section 22 A of the Chartered Accountants Act, 1949 - HELD THAT:- A reading of the case of RADHEY SHYAM & ANR & JAGDISH PRASAD VERSUS CHHABI NATH & ORS & IQBAL KAUR & ORS [2015 (7) TMI 376 - SUPREME COURT] would to a conclusion that all Courts and Tribunals which are functioning in the territorial jurisdiction of this Court are subordinate to it. The control and working of the Subordinate Court while exercising their statutory appellate or revisional authority are subject to the jurisdiction of the Court under Article 227 of the Constitution of India. Despite the curtailment of the power of this Court to revise an order pursuant to the amendment to Section 115 of Code of Civil Procedure under Act 46 of 1999, the power of this Court to exercise superintendence and control over courts and tribunals and exercise revisional jurisdiction continues to be recognised by virtue of Article 227 of Constitution of India. Being a Constitutional Court, the power is inherent, as it were.
An adjudication implies that there is a lis before the Court of Tribunal and the Tribunal decides the same after hearing both the parties. The mere fact that the parties are heard does not make a body - a Tribunal. Principles of natural justice have grown to such an extent that even without a body being a Tribunal, it has been called upon to comply with the principles of natural justice. The basis of this principle is attributed to the Act of the Almighty. God did not punish Adam, banishing him from Paradise, without hearing him. If principles of natural justice applies to Almighty, all the more it applies to his frail creatures. Therefore, the test is not whether the parties are heard and examined, but, whether there is a transfer of judicial power from the State to a body and that body is clothed with the power of adjudication of a lis.
In case on hand, a professional misconduct not being a lis, the Board of Discipline cannot be held to be a Tribunal within the meaning of Article 227 of the Constitution of India. Consequently, it is not amenable to my revisional jurisdiction. Therefore, the Civil Revision Petition is dismissed as not maintainable.
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2023 (12) TMI 944
Cancellation of petitioner’s GST registration with retrospective effect - failure to furnish the returns for a continuous period of six months - HELD THAT:- In the present case, the impugned order does not set out any intelligible reason for cancelling the petitioner’s GST registration, let alone doing so with retrospective effect - it is also material to note that the learned counsel for the petitioner had confined his challenge to the cancellation of the petitioner’s GST registration with retrospective effect. It is stated that the petitioner had no objection to his GST registration being cancelled but the same cannot be done with retrospective effect, as the same has a cascading effect on the petitioner’s customers whom the supplies were made.
The impugned order to the extent that it directs cancellation of the petitioner’s registration with retrospective effect, is set aside - petitioner’s GST registration shall stand cancelled from the date of the issuance of the Show Cause Notice, that is, with effect from 06.06.2023.
Petition disposed off.
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2023 (12) TMI 943
Recovery of IGST - Validity of demand / show cause notice - Jurisdiction of CAG to issue notices / SCN - Conditions and procedure for issuance of SCN u/s 73(1) - HELD THAT:- Prior to issuance of a show cause notice under Section 73[1] of the CGST Act, 2017, it is mere discrepancy. At that stage, the alleged discrepancy would only be a discrepancy simplicitor but at the stage of issuance of Demand-cum-Show Cause Notice under Section 73[1] of the CGST Act, 2017, there is formation of a prima facie opinion on the part of the Proper Officer that there is an act, which is in violation of the statutory obligation cast on the noticee. Admittedly in the case in hand, the Form GST ASMT-10 was not issued to the petitioner. A contention has also been raised that the CAG is not the Proper Officer to issue any kind of letters regarding the discrepancy.
This Court finds force in the contentions advanced by the petitioner that an act of issuance of the impugned Demand-cum-Show Cause Notice dated 05.09.2023 under Section 73[1] of the CGST Act, 2017 by the Proper Officer was without compliance of the mandatory conditions precedent, prescribed under the CGST Act, 2017 and the CGST Rules, 2017, more particularly, the provisions of Section 61 of the CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017, to derive jurisdiction to issue such a Demand-cum- Show Cause Notice under Section 73[1] of the CGST Act, 2017, impugned herein.
Thus, it is ordered that the operation of the impugned Demand-cum-Show Cause Notice shall remain stayed, till the returnable date.
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2023 (12) TMI 942
Manner of payment of pre-deposit - Blocking of Input Tax Credit - request of adjustment towards the pre-deposit under Section 107(6) to file an appeal came to be rejected by the Appellate-Authority - prayer for a direction to the Respondents to consider the deposit of Rs. 1 Crore as sufficient compliance of Section 107(6) of the CGST/MGST Act - HELD THAT:- In the present case, the Petitioner is in no manner disputing that the Petitioner is required to comply with the provisions of sub-section (7) of Section 107 of the CGST Act, in filing the appeal. In other words, the Petitioner is ready and willing to make the payment/deposit of the tax as per clauses (a) and (b) of sub-section (6) of section 107 of the CGST Act. However, the question raised by the Petitioner is that for fulfilment of such condition, the amount of tax, which is voluntarily deposited by the Petitioner, under protest under sub-section (5) of section 73 of the CGST Act, by permitted to be reckoned for the purposes of a pre-deposit for compliance of sub-section (6) of section 107 of the CGST Act. In our opinion, such request for the Petitioner is not something, which is opposed to law, inasmuch as, on a holistic reading of section 73 of the CGST Act, it can be said that an amount deposited under sub-section (5) section 73 of the CGST Act is not an amount, which is deposited in pursuance of any demand or any assessment order. It is certainly a voluntary deposit and which is subject to all the contentions of the assessee.
Thus, when it comes to the compliance of sub-section (6) of section 107 of the CGST Act, namely, the mandatory payment of the tax, being a condition precedent, mandated in terms of the provisions of subsections (6)(a) and (6)(b) of section 107 of the CGST Act, the principle as laid down in Supreme Court in VVF (India) Ltd. [2021 (12) TMI 477 - SUPREME COURT] would become applicable considering that the provisions of the CGST Act on pre-deposit are not too different from the provisions of the MVAT act, which fell for consideration of the Supreme Court.
Blocking of input tax credit - HELD THAT:- The input tax credit is contended to have been blocked on 19th April 2022 and the period of one year expires on 19th April 2023, hence, by operation of law as per Section 83(2) of the CGST/MGST Act, the said attachment ceases to exists.
The Respondents are directed to treat sum of Rs. 1 Crore as pre-deposit for the purpose of Section 107(6) of the CGST/MGST Act and the appeal be decided on merits - The input tax credit alleged to have been blocked vide order dated 19th April 2022 stands defreezed by operation of law - Petition disposed off.
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2023 (12) TMI 941
Maintainability of petition - availability of alternative remedy - Validity of assessment order - rejection of appeal on the ground of limitation - It is urged that the assessment order itself was an ex parte order - HELD THAT:- Having not availed the statutory remedies available, the petitioner cannot seek to approach this Court under Article 226 of the Constitution of India to challenge an assessment order especially with respect to the computation of the turn over and the determination of the taxable turnover and the tax payable, as arrived at by the Assessing Officer. In the BGST Act, an appellate remedy is provided under Section 107, which has to be availed within a period of three months or with a delay within a further period of one month.
It is trite law that when there is a specific period for delay condonation provided, there cannot be any extension of the said period by the Appellate Authority or by this Court under Article 226 of the Constitution.
The petitioner by his own failure has not availed the appellate remedy and in that circumstance, there can be no invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India - there is no jurisdictional error, violation of principles of natural justice or abuse of process of Court averred or argued by the petitioner in the above writ petition. The gross delay also stands against the petitioner.
Petition dismissed.
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2023 (12) TMI 940
Classification of goods - rate of GST - Stadiometer being diagnostic medical equipment - Infantometer being diagnostic medical equipment - taxable at 12% GST Slab? - HELD THAT:- Infantometer as the name suggests, is used for purpose of measuring height/length of infants. As per Wiktionary definition, Infantometer is an instrument for measuring the size of young children. The product is described as useful for research, clinical and hospital purpose - Stadiometer is described as piece of medical equipment used for measuring human height. It is used in routine medical examination and for clinical tests and experiments - The above definitions make it clear that both these instruments, the Stadiometer and the Infantometer have clinical used and are described as diagnostic instruments and apparatus.
Stadiometer is diagnostic medical equipment and is covered under tariff item 90189019 (other category) with rate of tax being 12% - Infantometer is diagnostic medical equipment and is covered under tariff item 90189019 (other category) with rate of tax being 12%.
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2023 (12) TMI 939
Liability of GST - Whether Purchase of raw cotton from Kacha Arhtiya who is a registered dealer constitutes a purchase from agriculturist - Reverse Charge Mechanism in view of section 9(3) of CGST/PGST Act, 2017 - HELD THAT:- To understand whether the Kacha Arhtia is liable to pay GST under reverse charge basis, it is pertinent to go through the Circular No. 57/31/2018-GST issued vide CBEC-20/16/4/2018-GST dated 4th September, 2018(to be read with the corrigendum dated 05th November, 2018) which has explained the Scope of Principal-Agent relationship in the context of Schedule-I of the CGST Act - As clarified vide above circular, the crucial component for covering a person within the ambit of the term 'agent', as contained in sub-Section (5) of Section 2 of the CGST Act and PGST Act, 2017, is corresponding to the representative character identified in the definition of agent under the Indian Contract Act, 1872. The said circular further clarifies that a key ingredient for determining whether the agent is wearing the representative hat and is supplying or receiving goods on behalf of the principal would be whether invoice for further supply or goods on behalf of the principal is being issued by the agent or not.
Since the scope of supply under the GST Act also covers the activities specified in schedule-I by or undertaken through an agent, the key ingredient for determining relationship would be whether the invoice for the further supply of goods on behalf of the principal is being issued by agent or not. In other words, the crucial point is whether or not the agent has the authority to pass on the title of the goods on behalf of the principal.
As soon as the auction for a lot is over, the auctioneer (Market officer) shall fill in the particulars in a book to be maintained in Form-H and shall secure the signatures of both the buyer and the seller or their respective representatives, whoever may be present at the spot. H register will have all details of date, Kacha Arhtia, name and address of seller, description of produce, quantity, rate, name of buyer. The responsibility of paying the market fee as prescribed under APMC Act and Rules shall be of the buyer in terms of provision of APMC Act and Rules and M/s Bansal Industries being a buyer in instant case, is liable to pay such fee and not the Kacha Arhtia or Agriculturist. Delivery of agricultural produce is made only after the Kacha Arhtia or the buyer gives to the seller a sale voucher in Form J clearly mentioning the details of the buyer and other details of the produce. On delivery of agricultural produce to a buyer, the Kacha Arhtia executes a memorandum in Form-I and delivers the same to the buyer on the same day or the following day clearly mentioning the name of the buyer corresponding to the Form-J issued to the seller.
Kacha Arhtia does not fall under the Scenario 4 given in the CBIC Circular No. 57/31/2018-GST dated 04.09.2018 cited by M/s Bansal Industries in their supports as at no time during the process of sale-purchase of agricultural goods in the grain markets does the Kacha Arhtia have the authority to pass or receive the title of the goods on behalf of the agriculturist. At all times during the purchase of raw cotton at the Mandi, the title of the agricultural produce and the authority to pass on the title of the agricultural produce is vested exclusively with the agriculturist himself. During the auction, it is the agriculturist who has to agree to the price offered by the bidders and thereafter when the delivery of goods is to be made to the successful bidder, i.e. buyer, at that point also the consent of the agriculturist is required before the goods can be transported to the buyer's premises - the provisions of APMC Rules also provide an opportunity to the buyer to remit money to the seller either directly or via the Kacha Arhtia. It is in fact only as an option of convenience wherein the money is transmitted via Kacha Arhtia after deduction of their commission etc which is the regular market practice.
M/s Bansal Industries i.e. the applicant is the recipient of supply of goods(raw cotton) by an agriculturist and not the Kacha Arhtia. As such, the applicant is liable to pay GST under reverse charge basis being a registered person in terms of Notification No. 13/2017- Central Tax (Rate) dated 28th June 2017 as amended vide Notification No. 43/2017-Central Tax (Rate) dated 14th November 2017 read with corresponding Notifications issued under Punjab State GST Act 2017.
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2023 (12) TMI 938
Government Entity or not - Urban Improvement Trust (UIT) Kota - constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota - taxability under GST law - paid tax shall be refunded to the assessee along with appropriate interest or not - Applicability of change in tax rate during continuing of a works contract, where the works contract has pre-fixed terms and conditions including total tender rate.
Whether Urban Improvement Trust (UIT) Kota is “Government Entity”? - HELD THAT:- UIT Kota is established by Govt, of Rajasthan (State Legislature) in 1970 under The Rajasthan Urban improvement Act 1959 and it is established by Govt, of Rajasthan with 90% or more participation by way of equity or control to carry out a function entrusted by the State Government. Thus UIT Kota falls under the category of “Government Entity”.
Whether constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota, is a taxable service under GST law and if yes, then determination of the liability to pay tax after applicable exemption and deductions? - HELD THAT:- The applicant is liable to pay GST on supply of this services and there no exemption and deduction is available to applicant in respect of aforesaid service provided to UIT Kota.
If no, then whether the paid tax shall be refunded to the assessee along with appropriate interest? - HELD THAT:- This question need not be answered.
Applicability of change in tax rate during continuing of a works contract, where the works contract has pre-fixed terms and conditions including total tender rate - HELD THAT:- The benefit of the reduced tax rate, i.e., 12% instead of 18% on works contract supplied to a Governmental Authority or a Government Entity regarding the works contract services mentioned in the corresponding entry, stands discontinued with effect from 01.01.2022. The revised rate applicable for the said supply is 18%. The revised rate is applicable from the 01st day of January, 2022. In case, where the time of supply of the work completed is on or before 31st December, 2021, GST at pre-revised rate is applicable and in case where the time of supply of the work completed is on or after, 01st day of January, 2022, GST at the revised rate is applicable.
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2023 (12) TMI 937
Stage of payment of GST - Time of supply - delayed payment of interest that is not still paid by purchaser of goods - time of demand of interest/debit of interest in the account of purchaser of goods - Requirement to issue fresh invoice of interest for delayed payment be issued in spite of non-receipt of interest? - GST payable on accrual basis or not?
HELD THAT:-As per Section 15 of CGST Act, 2017, 'The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply Further, as per Section 15(2) of CSGT Act, 2017, lists out the compulsory inclusions in the value of supply wherein as per Section 15(2)(d) it has been clarified that - 'interest or late fee or penalty for delayed payment of any consideration for any supply', thus GST provisions have clearly outlined Interest will be a part of value of supply.
Sec. 12(6) The time of supply to the extent it relates to an addition in the value of supply by way of interest, late fee or penalty for delayed payment of any consideration shall be the date on which the supplier receives such addition in value - Further applicant may raise debit note for interest on delayed payment under Section 34 of Act.
GST on interest recovered is to be paid on the date on which the supplier of goods receives such addition in value on delayed payment of any consideration.
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