GIST OF RECENT PRONOUNCEMENTS ON GST (PART-XVI)

[Dr. Sanjiv Agarwal]

Goods and Services Tax (GST), introduced from July 1, 2017 is more than thirteen months old now but has resulted in operational and implementation disruptions affecting all stakeholders.  GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council is however, making regular changes to fix the anomalies and hardships faced by taxpayers.  29 meetings of GST Council have been held till 4^th August, 2018.

Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with about 200 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. Recently, CBIC has issued directions to be officers to defend the writs. Further, we have now rulings from Authority for Advance Ruling and Anti-profiteering Authority also. Even the orders from Appellate Authority for Advance Ruling have also started pouring in.

Here are few more judicial pronouncements for information and guidance of various stakeholders. It is expected that the litigation by way of writs is bound to go up as time passes by unless the Government comes out with proactive approach and solutions.

• In Assistant State Tax Officer v. Indus Towers Ltd. 2018 (7) TMI 1181 - KERALA HIGH COURT, where the assessee transported goods procured by him for own use to site where goods were to be consumed and also issued a delivery challan under rule 55, however no declaration was made under rule 138 of the KGST Rules, before transport commenced, section 129 would operate and confiscation would be attracted, it was held that the assessee would be entitled to an adjudication, but it would have to prove that in fact there was a declaration made under rule 138 before transport commenced. If they do prove that aspect, they would be absolved of the liability; otherwise, they would definitely be required to satisfy tax and penalty as available under section 129.

• In Gati Kintetsu Express (P.) Ltd. v. Commissioner,Commercial Tax of MP 2018 (7) TMI 1097 - MADHYA PRADESH, HIGH COURT , where the assessee was a Private Limited company engaged in the business of multi model transportation of shipments, supply chain management and other allied services such as door to door pick-up and delivery of the shipments etc. and was transporting goods from Pune to Noida via different places but had not filed Part-B of national e-way bill giving all details including vehicle number before goods were loaded in vehicle, it was held that since the distance to be travelled was not short but more than 1200-1300 kilometers it was mandatory for petitioner to file said Part-B, Authority had rightly imposed huge penalty of ₹ 19,52,264 under section 122 computed on basis of value of loaded goods of ₹ 1,12,61,419 rejecting petitioner’s stand that at time of generation of said bill it could not fill vehicle number in Part-B due to inadvertence and it was a technical error, and, therefore, minor penalty could only be levied as in cases where tax is upto ₹ 5,000.

• In Print Vision (P.) Ltd. v. Commissioner of Central Excise, Ahmedabad 2018 (6) TMI 1213 - CESTAT AHMEDABAD , where assessee was engaged in printing of Books, Magazine, Posters, Letter Head, Letter Pad, Envelop, Calendar, Flayers Receipt Book, Product Folders, News Letter, Invitation Cards, Officer Stationary, Pad, Scriber Pad, Lebel, Stickers, Non-Corrugated Box, Diary, etc, it was held that as items manufactured by appellant-printer were partly printed and balance was to be printed/filled by the user, the same to be classifiable as 'stationery items'.

• In Zebronics India Pvt. Ltd. v. State of UP ; 2018 (4) TMI 1074 - ALLAHABAD HIGH COURT , where the Proper Officer of the Uttar Pradesh Goods and Services Tax Department had seized the goods (stock transfer) of the assessee under transport from Chennai to Dehradun as well as the vehicle on the plea that the good were not accompanied with the Transit Declaration Form [TDF]. He also imposed the penalty upon the assessee.

The petitioner filed writ to get the release of goods. It was observed that the goods have been detained, seized and penalty has been imposed merely because of TDF was absent and the Proper Officer was himself not satisfied as to the intention to evade tax being present in the facts of the case. There was nothing to dispute the claim made by the assessee that it was effecting the stock transfer of goods from Chennai to Dehradun and therefore, the goods were only passing through the State of V.P. There was no allegation or intention on the part of the assessee to unload the goods with the State of V.P. It was therefore, held that since there was no allegation on intention on the part of assessee to unload goods within the State of UP, seizure order as well as penalty order were wholly unsustainable and deserved to be quashed. Proper officer was directed to release goods and vehicle without furnishing of any security by the petitioner.

• In Air Transport Corporation (Assam) Pvt. Ltd. v. State of UP  2018 (6) TMI 108 - ALLAHABAD HIGH COURT , where writ petition was filed seeking a writ of certiorari quashing order and notice passed u/s 129 of CGST Act, 2017 as well as seeking a writ of mandamus for release of goods.

It was held that order of direction to deposit penalty in excess of 50% of the value of goods is appealable before appellate authority. Also vehicle in which goods were found to be loaded was directed to be released forthwith without demanding any security from the assessee.

(Some more cases to follow)

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