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2024 (12) TMI 12
Classification of services - Services falling within the definition of “mining services” or “Site formation and clearance, excavation and earthmoving and demolition” - scope of section 65(105)(zzzy) of the Finance Act, 1994, which was introduced on 01.06.2007 - HELD THAT:- The activities undertaken by the appellant amounted to mining activity ipso facto. Following the decision of Doypack Systems P Ltd [1988 (2) TMI 61 - SUPREME COURT] we also find that the activity relates to the mining of lignite which is mining of mineral. Accordingly, the services provided by the appellant are falling in the scope of clause (zzzy) of sub-section (105) of section 65 of the Act.
Since we have already explained the necessity to read the contract in its entirety and finding the ‘mining service’ to be more specific, appropriate and applicable category, we do not delve upon the classification of such services as transportation of goods.
The services provided by the appellant under the said contract were not preparatory work to mining activities but they were carried out to win the minerals and constituted mining activities per se, we hold that the views expressed by Commissioner of Central GST (A) in para 8 of the impugned order are incorrect and contrary to the statutory provisions. We also carefully referred to the circulars cited in impugned order, however in view of discussion and plain reading of law as it stood at the relevant time, we do not find any merit in the decision taken in the impugned and thus we hold that the services provided by the appellant under the said contract are in the nature of mining services so defined in clause (zzzy) of sub-section (105) of section 65 of the Act and not falling within the meaning of “Site formation and clearance, excavation and earthmoving and demolition” defined in clause (97a) of section 65 of the Act. We also hold by following the principles laid down by the Apex Court that the said services cannot be subjected to tax prior to 01.06.2007 and accordingly the appellant merits refund of amounts paid by them.
Facts relating to the contract number 53223 dated 07.12.2004 are not verifiable since the appellant have neither supplied the copy of the contract nor the relevant invoices. All the issues involved in the present case are significantly and dominantly factual issues in nature and therefore careful examination of the facts emanating from contemporaneous evidences is indispensable before reaching to any conclusion otherwise that will be complete miscarriage of justice to the other side. Thus, in absence of relevant materials, we do not wish to interfere in the impugned order to the extent that related to the services provided by the appellant under contract number 53223.
Refund of service tax - Since, we have held that the services are classifiable under clause (zzzy) i.e. mining services, brought to taxability w.e.f. 01.06.2007, the amount denoted as [D] above i.e. Rs. 2,04,87,723 is not eligible whereas the amount denoted as [C] above i.e. Rs. 4,60,77,978 is found eligible in facts as well as law. Thus, we hold that the appellant is eligible for refund.
Unjust enrichment - We find from the facts and submissions made by the appellant, more particularly the invoices attached to the refund applications and certificate from the chartered accountant that the incidence of such tax was borne by them and therefore bar of unjust enrichment was not applicable. We also find that said documentary evidences were furnished by the appellant to the lower authorities and against which no plausible explanations or contemporaneous evidences have been brought on record by the revenue to inflict bar of unjust enrichment. Therefore, we hold that the appellant has crossed the bar of unjust enrichment since the burden of tax was borne by themselves.
Interest on refund prayed by the appellant - As we find that the adjudicating authority in order-in-original ordered to deny the interest on refund to the appellant. As held by us above, the Appellant is eligible for refund of Rs. 4,60,77,978 and since the interest is consequential in terms of Section 11BB of the Central Excise Act, 1944 we hold that the Appellant is eligible for interest on delayed payment of interest in terms of Section 11BB of the Central Excise Act, 1944 which is made applicable to service tax provisions vide Section 83 of the Finance Act, 1994, by following the decision of Supreme Court in case of Ranbaxy Laboratories Ltd v. UOI [2011 (10) TMI 16 - SUPREME COURT] held the liability of the revenue to pay interest u/s 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund u/s 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.
Thus the appellant is entitled for interest from the expiry of 3 months from the date of original application filed for claim of refunds before the jurisdictional authority till the date of sanction.
Thus finding from the facts and records that services provided by the appellant under contract are not preparatory work but they are mining activities per se, services provided prior to 01.06.2007 were not taxable and thus the impugned order is modified to that extent and the appellant is allowed refund with consequential relief of interest as per above. The appeal filed by the Appellants is partly allowed in the above terms.
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2024 (12) TMI 11
Demand of Service Tax on Amount retained through forfeiture of earnest money/security deposits of contractors - Declared Service - consideration for tolerating the act of poor performance by service providers /contractors - Applicability of section 66E(e) of the Finance Act, 1994 - HELD THAT:-From the perusal of these decisions it becomes abundantly clear that the issue of considering a forfeited amount as an amount of consideration towards declared services stands already settled in favour of the assessee. The same is already held to not to be the consideration towards rendering declared service defined u/s 66E(e) of the Finance Act, 1944. In fact the cancellation of contract itself is held to not to be a service. We find no reason to differ from these findings.
We further observe that department also vide Circular No.214/1/2023-ST dated 28th February, 2023 has clarified about leviability of service tax on the declared services, “agreeing to the obligation to refrain from an act or to tolerate an act or a situation, or to do an act” under clause (e) of section 66E of Finance Act, 1994 and has clarified that the activities contemplated under section 66 E (e) i.e. when one party agrees to refrain from an act or to tolerate an act or a situation, or to do an act, are the activities where the agreements specifically refers to such an activity and there is a flow of consideration for this activity.
The decision of this Tribunal in the case of Dy. General Manager (Finance), Bharat Heavy Electricals Limited [2022 (9) TMI 1005 - CESTAT NEW DELHI] wherein the earlier decision of the Tribunal in the case of M/s. South Eastern Coalfields [2020 (12) TMI 912 - CESTAT NEW DELHI] was dealt with, has been referred in this Circular. The Board has decided to not to file any appeal against the decision in M/s. South Eastern Coalfields [2023 (8) TMI 606 - SC ORDER]. The said decision has also been upheld by Hon’ble Supreme Court [2023 (8) TMI 606 - SC ORDER] passed in the case of Commissioner of Central Excise and Service Tax vs. South Eastern Coal Fields Limited in Civil Appeal No. 2372/2021.
We hold that the amount retained has wrongly been held to be the amount towards rendering declared service. The order under challenge is therefore set aside and consequent thereto, the appeal is hereby allowed.
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2024 (12) TMI 10
Clandestine manufacture and removal - alleged fraudulent availment of cenvat credit on the strength of invoices issued by their Unit-II located at Coimbatore without actually receiving the goods - levy of penalty on the appellants - HELD THAT:- The appellant’s factory was visited on 14.09.2005 on the basis of intelligence about indulgence in clandestine manufacture and clearance of electrical stampings and parts of motors and also fraudulent availment of cenvat credit on invoices without receiving the inputs. Voluminous records have been seized during the search operation and subsequently statements of various persons including the employees of the appellant have been recorded. The evidences that have been brought on record revealed that the appellant has indulged in clandestine manufacture and clearance of the excisable goods without payment of duty; also in the truck load cleared excess quantity of goods than the quantity mentioned in the invoices for clearance.
The argument of the appellant that only on the basis of these statements and without any corroborative evidence from the suppliers of raw materials, consumption of electricity, purchaser of the goods since not investigated and brought on record, the confirmation of the demands and recovery of cenvat credit alleging fraudulent availment cannot be sustained. Similar arguments have been raised by the appellant before the Special Court for Economic Offences at Bangalore which has been dealt at length and ultimately the Court analysing the evidences and statements of witnesses called for who were subjected to examination-in-chief and cross-examination, and also referring to various documentary evidences placed before the Court by the prosecution and taken on record, arrived at the conclusion that there had been manufacture and clandestine clearance of excisable goods and consequently convicted all the accused who are appellants.
The requirement of evidence to prove a case in a criminal case is more rigorous than in comparison to confirmation of demand by the adjudicating authority on the principle of preponderance of probability. In the present case, on a trial to criminal liability, the Court has arrived at the conclusion that there has been evidence of clandestine manufacture and clearance of the goods and fraudulent availment of cenvat credit which rests on the evidences and the witnesses who have admitted before the Court in addition to their admission before the authorities which have been recorded under Section 14 of the Central Excise Act, 1944. The argument of the learned advocate disputing the said evidences cannot be acceptable. Further, it is found that the learned Commissioner analysing the records recorded a detailed finding which corroborates the statements furnished by the witnesses. Therefore, the contention of the appellant that allegation of clandestine clearance of goods cannot be sustained is also devoid of merit.
The confirmation of demand of duty on goods manufactured and cleared clandestinely amounting to Rs.27,46,833/- confirmed in the impugned order with interest and equivalent penalty under Section 11AC of the Central Excise Act, 1944 is upheld. Also, wrong availment of cenvat credit of Rs.2,72,388/- only on the basis of invoices without receipt of inputs confirmed in the impugned order with interest and equivalent penalty under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 is upheld.
The penalty imposed on the other appellants viz. Mr. G.R. Govindarajan, Managing Director, Mr. S. Rajamannar, CEO, Mr. R. Rajendran, Manager-Accounts and Mr. R.N. Ramesh, In-charge of Despatches under Rule 26 of the Central Excise Rules, 2002 is upheld but reduced to Rs.25,000/- each in respect of Mr. G.R. Govindarajan, Managing Director, Mr. S. Rajamannar, CEO; to Rs.5000/- each in respect of Mr. R. Rajendran, Manager-Accounts and Mr. R.N. Ramesh, In-charge of Despatches. Similarly, the penalty imposed under Section 26 of Central Excise Rules, 2002 on M/s. Raaja Magnetics (RML-II), Coimbatore is reduced to Rs.25,000/- to meet the ends of justice. Penalty imposed under other provisions on all appellants are set aside.
The impugned order is modified to the above extent - the appeals filed by the appellants are disposed of.
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2024 (12) TMI 9
Admissibility of CENVAT Credit availed on inputs at B-59 transferred to Unit B-165 - credit on inputs used in the final product not amounting to manufacture - credit on rejected goods and procedural discrepancies.
Admissibility of the credit availed on inputs received in their factory and later transferred to their other Unit B-165 having separate Central Excise registration - HELD THAT:- The appellant had accounted for the receipt of the inputs and its transfer to their other Unit at B-165 under proper challans which have been accounted there in their records, later consumed in the manufacture of finished goods cleared for export on payment of duty. Thus, the entire movement of the inputs from the stage of receipt at B-59 till the clearance of the final product on payment of duty from B-165 had been duly recorded. On going through the said documents, it is opined that the appellant could able to establish the receipt and transfer of inputs and its proper use at Unit B-165 to the satisfaction of the authority. In these circumstances, there is no justification for denial of the cenvat credit of Rs.72,97,860/- merely because necessary permission was not obtained for clearance of finished goods on payment of duty from Unit B-165 , instead of bringing it back to their Unit at B-59.
CENVAT credit of Rs.18,24,719/- availed on inputs that were used in the manufacture of finished goods was denied on the ground that the process of conversion of inputs into final products does not amount to ‘manufacturer’ - HELD THAT:- This issue has been considered by this Tribunal in their own case and it has been observed that the process viz. drilling, burr removal, grinding, blackening etc. as per the specification of customers undertaken by the appellant result into the emergence of a new product having distinct identity, use and hence amount to manufacture, vide Final Order [2023 (10) TMI 958 - CESTAT BANGALORE]. Thus, the credit on this count is also admissible.
Admissibility of cenvat credit of demand of Rs.5,60,978/- on rejected goods - HELD THAT:- Credit cannot be denied merely on the ground of affixation of wrong seal indicating the receipt of returned goods at Unit B-165, which pertains to B-49, when the documents submitted reveal that the rejected goods were duly received recorded as inputs and reprocessed and cleared on payment of duty on the processed goods.
Extended period of limitation - penalty - HELD THAT:- The demand pertains to the period December 2004 to July 2005 and the show-cause notice was issued on 08.08.2007 invoking suppression of facts which cannot be sustained when all movements of inputs from B-59 to B-165 had been duly recorded by the Appellant and clearance of finished goods effected on payment of appropriate Central Excise duty. Therefore, the demand is also barred by limitation and cannot be sustained. Further, we find that the transfer of raw materials and utilisation of credit availed on inputs used in the manufacture of finished goods later cleared on payment of duty relate to the appellant’s own units at B-59 and B-165, therefore imposition of penalty on the appellant also cannot be sustained.
The impugned order is set aside - appeal is allowed.
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2024 (12) TMI 8
Liability to pay Excise duty on the scrap/waste generated during the job work - whether the appellant who is the principal manufacturer and has sent these raw materials to the job workers for conversion in terms of Notification No. 214/86-CE dated 25.03.1986, is required to pay Central Excise duty in respect of waste and scrap generated at the job workers factories and cleared by the job workers without payment of duty for the disputed period? - HELD THAT:- The Tribunal Chennai vide its Final Order No. 41199/2024 dated 10.09.2024 [2024 (9) TMI 1245 - CESTAT CHENNAI] has decided the issue in favour of the assessee.
The Impugned Order dated 15.03.2016 of the Commissioner of Central Excise (Appeals-I), Chennai cannot sustain and so ordered to be set aside - Appeal allowed.
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2024 (12) TMI 7
Default in timely payment of duty on goods cleared - Contravention of Rule 8(3A) of the Central Excise Rules, 2002 (Rules) - extended period of limitation - penalty - period from April 2011 to July 2011 and August 2011 to December 2011 - doctrine of merger - HELD THAT:- The issue as to whether the Assessee can utilise the CENVAT credit toward payment of duty when in default is no more res integra and many judicial authorities have held that the provision of Rule 8(3A) of Central Excise Rules, 2002 as ultravires to the Main Act. The Hon’ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [2014 (12) TMI 585 - GUJARAT HIGH COURT] struck down the condition in Rule 8(3A) for payment of duty “without utilizing the CENVAT credit” as unconstitutional and invalid.
It is found that the Department had preferred an appeal against the decision passed in Indsur Global Ltd. before the Hon’ble Supreme Court. The Ld. Counsel for the appellant has submitted before us that the appeal filed by the Department in Indsur Global Ltd. has been disposed by the Hon’ble Apex Court in UNION OF INDIA & ORS. VERSUS INDSUR GLOBAL LTD. [2024 (7) TMI 1559 - SC ORDER (LB)]. The appeal was referred to the Lok Adalat proceedings before the Hon’ble Supreme Court and settlement has been arrived at. The effect is that the stay order having merged with the order of settlement, stands vacated. The decision rendered by the Hon’ble High Courts of Gujarat and Madras in the above cases would revive and be in force as a precedent.
The demand raised alleging violation of Rule 8(3A) cannot sustain and requires to be set aside. Ordered accordingly. Since the demand itself does not sustain, the invocation of extended period and imposition of penalties does not arise.
The impugned order is set aside - appeal allowed.
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2024 (12) TMI 6
CENVAT credit - denial of credit paid by sender units, based on the allegation that sender units inflated the value of Soap Noodles stock transferred to the appellants, as compared to the cost of such materials debited by each of the sender units, and the appellants took excess credit - recovery alongwith interest and penalty - whether appellant is entitled to take Cenvat credit of duty paid on inputs in terms of Rule 3 of Cenvat Credit Rules, 2004 or not? - HELD THAT:- Admittedly, the appellant has paid duty on the invoices issued by the sender unit of 115% / 110% of the cost of production in terms of Rule 8 of Valuation Rules, therefore, the appellant is entitled to take cenvat credit of what duty they have paid.
The said issue has been examined by the Hon’ble Punjab & Haryana High Court in the case of VG. STEEL INDUSTRY VERSUS CCE [2011 (5) TMI 154 - PUNJAB AND HARYANA HIGH COURT], wherein the Hon’ble High Court has observed 'even if the duty has been paid in excess of the amount finally held to be payable, unless the excess duty paid has been refunded, the assessee could claim cenvat credit as the department could not get the duty twice'.
Thus, the appellant has correctly taken the cenvat credit as higher duty paid by the supplier which has not been challenged by the Revenue and not the higher duty paid has been refunded to the sender unit.
The Cenvat credit of duty paid on procurement of inputs is admissible and cannot be asked to reverse. In these circumstances, no penalty can be imposed on the appellants - the impugned order is set aside - appeal allowed.
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2024 (12) TMI 5
CENVAT Credit - input services - Air Travel Agent service - Architect service - Business Support Service - Clearing & Forwarding service - Club Membership service - Telephone service - GTA service - Housekeeping service - Design & Development service - Chartered Accountant Services - Sponsorship services - Outdoor Catering services - denial of credit on the ground that the disputed services are not in conformity with the definition of ‘input service’ as per Rule 2(l) of the CENVAT Credit Rules, 2004 - period of dispute involved in the present case is from January, 2005 to January, 2014 - HELD THAT:- The case of the appellants is covered under both the un-amended as well amended definition of ‘input service’. Such definition clause, effective upto 31.03.2011, has specifically provided the phrase “activities relating to business”, for consideration of certain taxable services as ‘input service’, for the purpose of availment of CENVAT Credit of Service Tax paid thereon. Since the appellants are a corporate entity and maintained adequate records to demonstrate that the expenses incurred were in context with the services used by them for their business activities, the disputed services received prior to 01.04.2011 should be considered as input service for the purpose of taking of CENVAT Credit of Service Tax paid thereon.
The definition of ‘input service’ was substituted by Notification No. 03/2011-C.E. (N.T.) dated 01.03.2011 w.e.f. 01.04.2011. The effect of the substituted definition is that the phrase “means” was enumerated in the said definition clause, which covers any services used directly or indirectly, in or in relation to manufacture of the final products and clearance of the finished products upto the place of removal for consideration as ‘input service’. Since such definition clause is very wide and cover various services for consideration as input service, narrow interpretation cannot be placed to deny the benefit of CENVAT Credit availed by the appellants on the disputed services - the CENVAT Credit availed by them on the disputed services are in fact, input services and denial of the benefit of such credit in terms of Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944, shall not stand the scrutiny of law.
Considering the submissions of the appellant that they are not contesting the credit of Service Tax paid by them on cable operator service and rent-a-cab service, we hold that the appellants are liable to reverse the CENVAT Credit amounting to Rs.68,709/- availed on such services. Learned Advocate fairly concedes that the said amount of Rs.68,709/- has already been reversed by the appellants. Since such aspect of reversal is required to be examined at the original stage, the original authority is directed to examine such reversal of CENVAT Credit.
The impugned order to the extent it has denied the CENVAT Credit benefit amounting to Rs. 9,49,18,339/- is set aside and appeal to such extent is allowed in favour of the appellants - the original authority should examine the records to ascertain whether, the CENVAT Credit amounting to Rs.68,709/- has already been reversed by the appellant and if such amount had already been reversed, no proceedings shall be initiated by the Department for recovery of the same from the appellants.
Appeal disposed off.
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2024 (12) TMI 4
Rejection of prayer of the petitioners for representation by their advocate - challenge to quash CR Case - Prosecution proceedings against the Partners of the Firm for evasion of Tax - HELD THAT:- From the record of proceeding, it is seen that having registered the C.R. case, a summon has already been issued to the petitioner and the petitioner had entered appearance through the learned counsel before the learned trial Court below. Though it is contended in this petition, the prayer for representation of the petitioner is disallowed, the order sheets annexed along with this petition donot disclose anything to that effect rather the order sheet reflects that the petitioner’s application for adjournment and for his absence was duly considered by the learned trial Court below by order dated 13.12.2012.
This Court has also perused the complaint filed by the authorities as recorded hereinabove, and reading of the aforesaid materials if taken on its face value discloses the offences as alleged inasmuch as this Court in exercise of its power under Section 482 of Cr.P.C. cannot go into the factual dispute and allegation as raised in the present case more particularly, when such facts are not admitted by the Taxation department.
The criminal petition stands dismissed. Interim order, if any, passed earlier stands vacated - LCR be returned back.
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2024 (12) TMI 3
Reopening the assessment u/s 147 - valid sanction being granted by the competent authority, before issuing the impugned Notice of reopening of assessment or not? - as decided by HC [2018 (5) TMI 1551 - GUJARAT HIGH COURT] Addl. Commissioner of Income tax had not only put his remarks on the proforma presented before him by the Assessing Officer but also separately conveyed his satisfaction to the Assessing Officer in a separate letter. The application of mind and grant of sanction was, thus, one integrated exercise. Even independently, we have no reason to believe or hold that this was a case of nonapplication of mind
HELD THAT:- Our attention is invited to order [2018 (9) TMI 476 - SC ORDER] passed by this Court while issuing notice on this Petition. We find that the contentions which are recorded in the said order were raised only by way of a rejoinder in the writ petition filed by the petitioner. We find from the impugned judgment that this factual contention was not agitated before the High Court.
As petitioner submits that in fact, this contention was agitated before the High Court. The High Court has recorded the contentions raised by the counsel for the petitioner. Therefore, if the case of the petitioner is that this contention was raised at the time of hearing, but was not noted and considered, the remedy of the petitioner is before the High Court.
Petitioner seeks permission to withdraw this Petition on the ground that the petitioner wants to file an appropriate application before the High Court. We dispose of the Special Leave Petition as withdrawn.
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2024 (12) TMI 2
Valuation of goods transferred to sister units - clinkers transferred by the appellant to their sister concern - to be valued under Rule 4 or Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000? - Revenue Neutrality - Extended period of limitation - suppression of facts or not.
HELD THAT:- This Tribunal in appellant’s own case for their own unit for the period from March 2011 to November 2013 held that Rule 4 read with Rule 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 be adopted following the judgment of the Larger Bench of the Tribunal in the case of Ispat Industries case [2007 (2) TMI 5 - CESTAT, MUMBAI-LB]. This Tribunal in M/S. ULTRATECH CEMENT LTD., (UNIT: RAJASHREE CEMENT WORKS), VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS [2024 (1) TMI 663 - CESTAT BANGALORE] observed 'we have no hesitation to hold that the appropriate rules for determination of the assessable value of the goods for the transferred clinkers to sister units will be Rule 4 read with 11 of the Central Excise Valuation Rules, 2004 rather than Rule 8 of the Central Excise Valuation Rules, 2000 for the period in question.'
Revenue Neutrality - HELD THAT:- The appellant has argued that the aspect of revenue neutrality is not considered while deciding the case for earlier period. In support, they have referred to the judgment of the Hon’ble Supreme Court in Nirlon Ltd.’s case [2015 (5) TMI 101 - SUPREME COURT]. It is found that the said argument of the learned advocate is misplaced and the principle of law laid down by the Hon’ble Supreme Court has been misunderstood in ascertaining the correct method of valuation applicable for clearance of goods to own unit on stock transfer basis.
The revenue neutrality is not a statutory concept but a principle of equity developed by courts as a mitigating factor in appreciating the intention of the persons while applying the principle of law to a particular situation to determine the reason for non-payment of duty. Revenue neutrality cannot be considered as an incentive not to follow the statutory provision governing principle of valuation solely on the ground that the other unit could avail the benefit of credit of the differential duty payable.
Extended period of limitation - suppression of facts or not - HELD THAT:- This Tribunal for the earlier period while applying the principle of valuation under Rule 4 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 to the circumstances of the case has set aside the demand for the extended period of limitation holding that the same cannot be applicable to cases involving interpretation of statutory principles of valuation and in absence of suppression or misdeclaration of facts on the part of the assessee.
Appeal is modified to the extent of setting aside the demand for the extended period of limitation and the demand with interest to be confirmed for the normal period of limitation. All these appeals are remanded to the adjudicating authority to redetermine the assessable value applying the principle of Rule 4 read with Rule 11 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 and compute the differential duty with interest for the normal period. As the issue pertains to interpretation of provision of Central Excise (Valuation) Rules, 2000 imposition of penalty is also not warranted and accordingly not sustainable, hence, set aside.
Appeal disposed off by way of remand.
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2024 (12) TMI 1
Dishonour of Cheque - application filed u/s 482 of CrPC for quashing complaint under Section 138 of NI Act - HELD THAT:- Admittedly, the petitioner has issued two numbers of post-dated Cheques bearing No. 622623 and 622624 for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- respectively. The parties have entered into an agreement with certain stipulations/terms and conditions. The terms and conditions of the Deed of Undertaking duly executed between the petitioner and the respondent provides that the petitioner will clear the GST, amounting to Rs. 9,63,00,000/-in respect of the firm-M/s Kurung Kumey Enterprises for execution of the work. An amount of Rs. 9,63,00,000/-, of which 10% GST amount will be Rs. 33,00,000/- shall be paid by the petitioner to the respondent. If the GST of 2% is reflected by the Department of Municipal Corporation, the amount to be paid by the petitioner will be Rs. 1,54,00,000/- to the respondent.
Perusal of the Deed of Undertaking goes to show that the two Cheques have been issued as post-dated for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- to the respondent on fulfillment of certain conditions. Having considered the said stipulation, it is afraid that such an stipulation could be a valid stipulation insofar as the issuance of Cheques are concerned.
This Court finds no ground to quash the proceedings of C.R. No. 100/2022 and taking cognizance by the learned Judicial Magistrate First Class, Yupia, as if at all, the issues/grounds that have been raised appears to be a matter of trial before the competent Court.
It is not inclined to invoke the inherent power of this Court for quashing of the proceedings in the instant case - The criminal petition is rejected and stands dismissed.
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2024 (11) TMI 1406
Cancellation of the GST registration without providing opportunity to be heard - violation of principles of natural justice - appeal preferred by the petitioner has been rejected on the ground of being filed after expiry of Limitation period as envisaged under Section 107 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It appears that a show cause notice was issued to the petitioner (Annexure-2) which indicates that the reason for issuing show cause notice is that the petitioner failed to furnish the return for a continuous period of six months which is mandatory as per the CGST Act - The petitioner during course of argument had submitted that in the order of cancellation, it has been mentioned that the undersigned has examined the reply but fact remains that no reply was filed by the petitioner within the stipulated period and as such principles of natural justice has been denied to him.
It is true that no reply of the petitioner was on record as informed by the CGST counsel; however, the fact remains that the petitioner failed to furnish return for a continuous period of six months. It further transpires that the appeal of the petitioner was also rejected on the ground of limitation as the same was filed after a lapse of more than 1 year and 20 days; whereas the normal period for filing appeal is three months as prescribed under section 107 (1) of CGST Act 2017.
There are no hesitation in holding that the petitioner firm is not entitled for any relief on the ground of being lethargic in approach, inasmuch as, on the one hand, the petitioner did not file return for a continuous period of six months and on the other hand the petitioner filed appeal before the appellate forum after a delay of 1 year and 20 days which is admittedly beyond the period of three months for filing appeal as prescribed under the Act.
Thus, neither there is any perversity in the order of cancellation of GST registration; nor is there any necessity for interference with the appellate order, inasmuch as, the same is filed beyond the statutory period of limitation - Accordingly, the instant writ application stands dismissed.
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2024 (11) TMI 1405
Constitutionality of Section 16 (2) (c) of CGST/SGST Acts - violation of Articles 14 and 19 (1) (g) of the Constitution of India - non-application of mind - violation of principles of natural justice - HELD THAT:- From a bare perusal of the order dated 08.12.2023 it is clear that the 1st respondent has not applied its mind and the said order has been passed in a mechanical manner.
Order bearing No. CTO/LGSTO-510/2023- 24/8814 dated 08.12.2023 by the 1st respondent (Annexure-D) is quashed - writ petition is allowed in part.
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2024 (11) TMI 1404
Challenge to order of assessment and the DRC-07 notice and the order passed in the rectification application - order of assessment made without giving opportunity to the petitioner based upon which the notice of DRC-07 was issued - violation of principles of natural justice - HELD THAT:- Considering the fact that no reasons whatsoever have been assigned except to make the statement that no satisfactorily reasons attached to the annexure had been made out, the first respondent had not given any reasons. Section 161 of the TNGST Act indicates that when such an application is made and if no error on the face of record had been made out to the applications for rejection are to be rejected.
In the present case, the petitioner has pointed out an error in his return, which he seeks to rectify for passing the revised order of assessment. The said reasons had not been considered by the first respondent and therefore, the impugned order dated 04.06.2024 rejecting the application of the writ petitioner for rectification alone is hereby set aside and remitted back to the first respondent for passing a fresh order after considering the reasons and pass appropriate orders. If the authorities decide not to entertain the said request, he shall give detailed reasons as to why the said order is being made. Further proceedings, pursuant to DRC- O7 notice dated 02.01.2024 shall be kept in abeyance.
This writ petition stands disposed of.
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2024 (11) TMI 1403
Availability of Input Tax Credit in respect of demo vehicles - issuance of Circular No. 231/25/2024-GST (F.NO.CBIC-20001/6/2024-GST], dated 10.09.2024 - HELD THAT:- The clarification has been also taken note of by the Haryana Government, and they have issued similar clarification vide Circular No. 231/25-HGST/2024/GST-II (CBIC Circular No.231/25/2024- GST, dated 11.09.2024), dated 13th September 2024 - Said circular discussed the availability of Input Tax Credit on demo vehicles, which are motor vehicles for transportation of passengers having approved seating capacity of not more than 13 persons in terms of clause(a) of section 17(5) of Haryana Goods & Services Tax Act, 2017.
Further, it deals with the availability of the Input Tax Credit on demo vehicles in cases where such vehicles are capitalized in the books of account by the authorized dealers.
The observations of not giving benefit of Input Tax Credit to vehicles, which have been initially used as demo vehicles, is accordingly, set-aside in view of the extension of grant of availability of Input Tax Credit with respect to the demo vehicles, as clarified by the aforesaid circulars.
The petitioner is entitled to the benefit of ITC.
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2024 (11) TMI 1402
Challenge to order passed by the respondent on the premise that the same was made in violation of principles of natural justice - HELD THAT:- The impugned order dated 10.04.2024 is set aside and the petitioner shall deposit 10% of the disputed tax within a period of four weeks from the date of receipt of a copy of this order. 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 weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are 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.
The Writ Petition stands disposed of.
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2024 (11) TMI 1401
Violation of principles of natural justice - impugned order has been made on a gross non-application of mind to the objections filed by the petitioner - rejection of petitioner's claim for ITC - HELD THAT:- This Court finds that there is some merits in the submission of the petitioner inasmuch as the impugned order does not even make a reference to the documents that have been filed in the form of E-way bill, Tax invoices, etc., while rejecting the petitioner's claim of entitlement to Input Tax Credit. Further more, in this matter the petitioner is also in possession of lorry receipts, weighbridges, etc. In the circumstances, this Court is of the view that the petitioner may be granted one final opportunity to produce all the related documents.
The impugned order is thus set aside and the petitioner is granted liberty to submit objections, if any along with the relevant documentary evidence within a period of two weeks from the date of receipt of copy of this order. If such reply or documents are produced within the stipulated period i.e., two weeks from the date of receipt of copy of this order, order would be passed afresh, after considering the reply or document and after affording the petitioner a reasonable opportunity therein.
This writ petition is disposed of.
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2024 (11) TMI 1400
Challenge to final order framed under Section 73 (9) of the Central Goods and Services Tax Act, 2017 - personal hearing on the scheduled date not availed - principles of natural justice - HELD THAT:- All that the competent authority has chosen to observe is that the reply has not been found to be satisfactory. Since the order impugned is bereft of any reasoning, it is rendered unsustainable.
The impugned order dated 20 August 2024 is quashed - petition allowed.
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2024 (11) TMI 1399
Violation of principles of natural justice - impugned order came to be passed, without affording an opportunity of personal hearing to the petitioner - HELD THAT:- In the present case, the only issue raised by the petitioner is that before issuing the impugned order, no opportunity of personal hearing was provided to the petitioner, but the first respondent passed the impugned order after affording an opportunity of personal hearing to the petitioner. However, considering the submission made by the learned counsel for the petitioner that, the petitioner is willing to deposit 10% of the disputed tax amount, this Court is inclined to set aside the impugned order dated 31.05.2024.
The impugned order dated 31.05.2024 is set aside and the matter remanded back to the respondents on condition that the petitioner shall deposit 10% of the disputed tax demand of the impugned assessment year, within a period of four (4) weeks from the date of receipt of a copy of this order and thereafter, the petitioner is directed to file a reply within a period of two (2) weeks.
Petition disposed off by way of remand.
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