M/S. KHERIWAL ENTERPRISES VERSUS UNION OF INDIA AND OTHERS

Acceptance of FORM GST TRAN-1 and TRAN-2 of the petitioner (hard copy) – Input Tax Credit/CENVAT credit – period running from 1st April, 2017 to 30th June, 2017 – pre Goods and Service Tax (GST) regime – Held that:- The GST portal of the Central Government was not accessed by the petitioner for varieties of reasons, as stated in Annexures-5, 6, 7 and 8 of this writ petition. Time and again, there is correspondence to that effect.

The respondents are directed to accept the hard copies of the FORM GST TRAN-1 and TRAN-2 and to scrutinize the same on or before the next date of hearing.

No.- W.P. (T) No. 3028 of 2018

Dated.- August 20, 2018

MR. D.N. PATEL AND MR. AMITAV K. GUPTA JJ.

For the Petitioner : Mr. M.S. Mittal, Sr. Advocate Mrs. Varsha Ramsisaria, Advocate Ms. Amrita Sinha, Advocate Ms. Priyanka Singh, Advocate Mr. Naveen Kumar, Advocate

For the Respondent-UOI : Mr. Neeraj, A.C. to A.S.G.I.

For the Respondent-State : Mr. Atanu Banerjee, G.A.  

Oral Order

Per D.N. Patel, J.

1. This writ petition has been preferred mainly seeking permission upon the respondents to accept the FORM GST TRAN-1 and TRAN-2 of the petitioner so as to avail Input Tax Credit/CENVAT credit totalling to ₹ 8,75,039/- for the period running from 1st April, 2017 to 30th June, 2017 which is a pre Goods and Service Tax (GST) regime.

2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that Section 140 of the JGST Act, 2017, which is pertaining to transitional arrangements for Input Tax credit to be read with Rule 117 of the JGST Rules, 2017 provides that within 90 days application should be preferred for receiving credit of the Input Tax/CENVAT.

3. Thus, from 1st July, 2017 onwards within 90 days such application should have been preferred by the petitioner, but, this date has been extended up to 27th December, 2017, thereafter, up to 31st May, 2018 for TRAN-1 and filing date has been extended up to 30th June, 2018 for TRAN-2.  

4. Looking to the facts, it appears that the GST portal of the Central Government was not accessed by the petitioner for varieties of reasons, as stated in Annexures-5, 6, 7 and 8 of this writ petition. Time and again, there is correspondence to that effect.

5. Learned counsel appearing for the Union of India is seeking time.

6. We, therefore, direct the respondents to accept the hard copies of the FORM GST TRAN-1 and TRAN-2 and to scrutinize the same on or before the next date of hearing.

7. The matter is adjourned on 24th September, 2018.

M/S MASHA ENTERPRISES VERSUS STATE OF U.P. AND 3 OTHERS

Seizure of goods alongwith the vehicle – expired E-Way bill – whether the expiry of the delivery time mentioned in the E-Way Bill would be construed as contravention of the provisions of GST Act? – HELD THAT:- List for admission/final disposal after a month.

In the meantime, the goods and the vehicle seized on 10.08.2018 shall be released in favour of the petitioner on its furnishing security of the amount other than cash and bank guarantee equivalent to the proposed tax and the penalty already imposed.

No.- Writ Tax No. 1144 of 2018

Dated.- August 21, 2018

Mr. Pankaj Mithal and Mr. Saral Srivastava, JJ.

Counsel for Petitioner :- Ankur Agarwal,Suyash Agarwal

Counsel for Respondent :- C.S.C.,A.S.G.I.,Vaibhav Tripathi

ORDER

Heard Sri Suyash Agrawal, learned counsel for the petitioner and Sri C.B. Tripathi, learned counsel appearing for respondent Department.

The goods of the petitioner in transportation from Ghaziabad to Meerut were seized along with the vehicle on 10.08.2018 as the E-Way Bill had expired.

The submission of Sri Suyash Agrawal, learned counsel for the petitioner is that there is no intention on the part of the petitioner to evade the tax and that no such intention is reflected from the seizure order. The transportation of the goods could not be completed within the time mentioned in the E-Way Bill due to traffic jam on account of “Kanvar Yatra” in Western U.P.

Sri Tripathi, on the other hand, contends that contravention of the provisions of the Act and Rules ipso facto entitles the seizure of the goods under Section 129 of the Act. The Act only provides that the goods in transportation shall accompany the E-Way Bill.

The question that arises is whether the expiry of the delivery time mentioned in the E-Way Bill would be construed as contravention of the provisions of the Act.

Sri Tripathi may seek instructions and file counter affidavit to the petition within a period of three weeks. One week thereafter is allowed to the petitioner to file rejoinder affidavit.

List for admission/final disposal after a month.

In the meantime, the goods and the vehicle seized on 10.08.2018 shall be released in favour of the petitioner on its furnishing security of the amount other than cash and bank guarantee equivalent to the proposed tax and the penalty already imposed.

M/S. ANKIT ISPAT PRIVATE LIMITED VERSUS THE GST COUNCIL REPRESENTED BY ITS FINANCE SECRETARY, THE GOODS AND SERVICE TAX NETWORK (GSTN) , THE COMMISSIONER OF GST AND CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF GST & CENTRAL EXCISE, THE GOVERNMENT OF PUDUCHERRY

Transitional credit – grievance of the petitioner is that even though they are entitled to claim transitional credit as per Section 140 of the CGST Act, 2017 r/w Section 140 of the TNGST Act, 2017, such input tax credit fails to appear in the electronic credit, despite the fact that the petitioner duly complied with the requirements for transition of credit on input tax.

Held that:- It is not in dispute that a circular has already been issued on 03.04.2018 by the Central Board of Indirect Taxes, by setting up a Grievance Redressal Mechanism to address certain grievance of the Assesses, which contemplates the appointment of a Nodal Officer to address the problem faced by the tax payers in the GST portal during the transitional period – it is for the petitioner/Assessee, to submit their application ventilating their grievance in accordance with the said circular, before the concerned Nodal Officer – petition disposed off.

No.- W. P. No. 21337 of 2018

Dated.- August 21, 2018

K. Ravichandrabaabu, J.

For the Petitioner  : Mr.S.Muthuvenkataraman

For the Respondents : Mrs.R.Hemalatha, Mr.V.Sundareswaran, Mr.J.Kumaran

ORDER

Mrs.R.Hemalatha, learned Senior Standing Counsel takes notice for the respondents 3 & 4. Mr.V.Sundareswaran, learned Senior Panel Counsel takes notice for the respondents 1 & 2. Mr.J.Kumaran, learned Government Advocate (P) takes notice for the fifth respondent. By consent of the parties, the writ petition is taken up for final disposal at the admission stage itself.

2. The petitioner seeks for mandamus directing the respondents herein to allow the petitioner to avail the credit of ₹ 36 Lakh (Approx), being the amount of Cenvat Credit carried forward in the return relating to the period ending with the day immediately preceding the date on which the provisions of the new tax regime, the Goods and Service Tax Act, 2017, came into force, as credit on input tax under the new tax regime.

3. Heard both sides.

4. The petitioner-Company is an Assessee under Range-III, Central Excise Division, Kalaikal. The main grievance of the petitioner is that even though they are entitled to claim transitional credit as per Section 140 of the CGST Act, 2017 r/w Section 140 of the TNGST Act, 2017, such input tax credit fails to appear in the electronic credit, despite the fact that the petitioner duly complied with the requirements for transition of credit on input tax, the un-utilized amount in the return relating to the period ending with the day immediately preceding the date on which GST Act, 2017 came into force. It is contended that the petitioner had duly filled declaration electronically in Form GST TRAN-I on 05.09.2017. Therefore, it is stated that the petitioner vide their communication sent by E-mail dated 26.01.2018, informing the respondents that due credit which ought to have been forwarded from the old tax regime to GST had not materialised. As the said request has not been considered, the petitioner has chosen to file the present writ petition.

5. It is not in dispute that a circular has already been issued on 03.04.2018 by the Central Board of Indirect Taxes, by setting up a Grievance Redressal Mechanism to address certain grievance of the Assesses, which contemplates the appointment of a Nodal Officer to address the problem faced by the tax payers in the GST portal during the transitional period. Therefore, when such Grievance Redressal Mechanism has already been formed by the Central Board of Indirect Taxes and consequently, a Nodal Officer is also appointed by the State Government, it is for the petitioner/Assessee, to submit their application ventilating their grievance in accordance with the said circular, before the concerned Nodal Officer.

6. Accordingly, this writ petition is disposed of, without expressing any view on the merits of the matter, only with the following directions:

(a) The petitioner shall submit their application in accordance with the circular dated 03.04.2018 to the respective Assessing Officer/Jurisdictional Officer/GST Officer, within a period of two weeks from the date of receipt of a copy of this order

(b) On receipt of such application, the Assessing Officer/Jurisdictional Officer/GST Officer is directed to forward the application to the respective Nodal Officer within a period of one week.

(c) The Nodal Officer in consultation with the GSTN shall take note of the grievances expressed by the petitioner/Assessee and forward the same to the Grievance Committee, which in turn would take an appropriate decision in the matter as expeditiously as possible, in any event, within a period of six weeks thereafter.

No costs.

M/S CHANDRA KISHOR SINGH GOVT. CONTRACTOR AND GENERAL ORDER SUPPLIER VERSUS THE DIRECTOR, CONSTRUCTION AND DESIGN SERVICES UP JAL NIGAM AND 4 OTHERS

Liability of GST – construction work done under the contract – who is liable to pay GST? – Held that:- The dispute is one concerning the agreement between the petitioner and the respondents, which vide Clause 24 provides for resolution of such disputes by Arbitration – In view of the aforesaid remedy available to the petitioner for seeking an arbitration, we are not inclined to interfere in the matter – petition dismissed on the ground of alternative remedy.

No.- WRIT TAX No. 1159 of 2018

Dated.- August 21, 2018

Hon’ble Pankaj Mithal And Hon’ble Saral Srivastava, JJ.

For the Petitioner : Shailesh Kumar Shukla,Sheo Kinkar Singh

For the Respondent : Pranjal Mehrotra

ORDER

The petitioner is a contractor who has been granted a contract for construction of 100 Boys’ Hostel GIC, Pratapgarh by the Construction and Design Services U.P. Jal Nigam, respondent no.4. The parties have entered into an agreement for the above purpose.

A dispute has arisen between the parties to the contract as to who is liable to pay GST on the value of the construction work done under the contract. The petitioner alleges that the liability to pay the GST is upon the respondents and not upon it.

The aforesaid dispute is one concerning the agreement between the petitioner and the respondents, which vide Clause 24 provides for resolution of such disputes by Arbitration.

In view of the aforesaid remedy available to the petitioner for seeking an arbitration, we are not inclined to interfere in the matter. The petition is accordingly dismissed on the ground of alternative remedy.

MSR IRON AND STEEL INDUSTRIES INDIA PRIVATE LIMITED, BALU IRON AND STEELS COMPANY, M/S. RAMESH IRON AND STEEL COMPANY INDIA PRIVATE LIMITED VERSUS THE JOINT COMMISSIONER OF SALES TAXES COIMBATORE DIVISION COIMBATORE, THE COMMISSIONER OF GST AND CENTRAL EXCISE GST BHAVAN, GOODS AND SERVICE TAX NETWORK (GSTN) AST WING, GOODS AND SERVICE TAX COUNCIL (GST COUNCIL) , THE UNION OF INDIA AND THE GOVERNMENT OF TAMIL NADU

Unable to upload FORM GST TRAN-1 – transition to GST Regime – main grievance in all these writ petitions is that the respective writ petitioner is not in a position to take excise duty credit in the stock of goods on the appointment of GST – Held that:- A circular has been already issued on 03.04.2018 by the Central Board of Indirect Taxes, by setting up a Grievance Redressal Mechanism to address certain grievance of the Assesses, which contemplates the appointment of a Nodal Officer to address the problem faced by the tax payers due to the problem faced by such people in the GST portal during the transitional period – when such Grievance Redressal Mechanism has already been formed by the Central Board of Indirect Taxes and consequently, a Nodal Officer is also appointed by the State Government, it is for the petitioners/Assessees, to submit their applications in accordance with the said circular before the concerned Nodal Officer – Petition disposed off.

No.- W.P.Nos.21321 to 21323 of 2018

Dated.- August 21, 2018

Mr. K. Ravichandrabaabu J.

For the Petitioner : Mr.K.R.Krishnan (in WP. Nos.21321 to 21323 of 2018)

For the Respondents : Mrs.G.Dhana Madhri Government Advocate (Tax) For R1 & R6 Mr.S.R.Sundar standing counsel, for R2 Mr.V.Sundareswaran, Senior Panel Counsel, for R3, R4 and R5 (in WP. Nos.21321 to 21323 of 2018)

COMMON ORDER

Mrs.G. Dhana Madhri, learned Government Advocate (Tax) takes notice for the respondents 1 and 6. Mr.S.R.Sundar, learned standing counsel takes notice for the second respondent. Mr.V.Sundareswaran, learned Senior Panel Counsel takes notice for the respondents 3, 4 and 5. By consent of the parties, these writ petitions are taken up for final disposal at the admission stage itself.

2. All these writ petitions are filed by individual writ petitioners seeking mandamus directing the 2nd respondent to take action, including re-opening the common portal and extending the time period for filing the declaration in FORM GST TRAN-1, so as to enable the petitioners to submit the FORM GST-TRAN 1 in Column No.7(a) or electronically or manually by correcting the error of filing in Column 7(d) and accept the same as being in compliance with the provisions of Section 140 of the Central Goods and Services Tax Act 2017 / Section 140 of the Tamil Nadu Goods and Services Tax Act 2017 read with Rule 117 of the Central Goods and Services Tax Rules 2017 / Rule 117 of the Tamil Nadu Goods and Services Tax Rules 2017.

3. Heard both sides.

4. The main grievance in all these writ petitions is that the respective writ petitioner is not in a position to take excise duty credit in the stock of goods on the appointment of GST (as on 30.06.2017) in view of certain lack of clarity in the new transition provisions under the GST Act. It is not in dispute that a circular has been already issued on 03.04.2018 by the Central Board of Indirect Taxes, by setting up a Grievance Redressal Mechanism to address certain grievance of the Assesses, which contemplates the appointment of a Nodal Officer to address the problem faced by the tax payers due to the problem faced by such people in the GST portal during the transitional period. It is also not in dispute that the Government of Tamil Nadu vide proceeding dated 18.05.2018 already nominated a State Level Nodal Officer to address the problem faced by the tax payers.

Therefore, when such Grievance Redressal Mechanism has already been formed by the Central Board of Indirect Taxes and consequently, a Nodal Officer is also appointed by the State Government, it is for the petitioners/Assessees, to submit their applications in accordance with the said circular before the concerned Nodal Officer.

5. Accordingly, all these writ petitions are disposed of, without expressing any view on the merits of the matter, only with the following directions:

(a) The respective writ petitioner shall submit their application in accordance with the circular dated 03.04.2018 within a period of two weeks from the date of receipt of a copy of this order to the respective Assessing Officer/Jurisdictional Officer/GST Officer.

(b) On receipt of such application, the Assessing Officer/Jurisdictional Officer/GST Officer is directed to forward the application to the respective Nodal Officer within a period of one week.

(c) The Nodal Officer in consultation with the GSTN shall take note of the grievances expressed by the petitioners/Assessees and forward the same to the Grievance Committee, which in turn would take an appropriate decision in the matter as expeditiously as possible, in any event, within a period of six weeks thereafter.

No costs.

M/S. PRIYANKA AGENCIES VERSUS UNION OF INDIA, THE CHAIRMAN, RAILWAY BOARD, NEW DELHI, THE GENERAL MANAGER, THE SENIOR DIVISIONAL ENGINEER (CO-ORDINATION) , THE PRINCIPAL FINANCIAL ADVISOR & CHIEF ACCOUNTS OFFICER, THE PRINCIPAL CHIEF COMMISSIONER OF CGST AND CENTRAL EXCISE, THE STATE OF TAMIL NADU AND THE COMMISSIONER OF STATE GOODS AND SERVICE TAX, EZHILAGAM

Rate of tax – Held that:- By considering the fact that the petitioner has raised an issue with regard to the Chapter Heading in consonance with the work executed by him, certainly, it is for the authorities concerned to clarify the same as, at this stage, this Court, is not inclined to go into such issue and express any view – Petition disposed off.

No.- Writ Petition No.21272 of 2018 And WMP.Nos.24940 & 24941 of 2018

Dated.- August 21, 2018

Mr. K. Ravichandrabaabu J.

For the Petitioner : Mr.Velayutham Pichaiya

For the Respondents : Mr.P.T.Ramkumar Standing Counsel for R1 to R5 Ms.Aparna Nandakumar, Standing Counsel for R6 Mrs. G.Dhana Madhi, Government Advocate (T), for R7 & R8.

ORDER

Mr.P.T.Ramkumar, learned Standing Counsel takes notice for the respondents 1 to 5, Ms.Aparna Nandakumar, learned Standing Counsel takes notice for the sixth respondent and Mrs.G.Dhana Madhi, learned Government Advocate (Tax) takes notice for the respondents 7 & 8.

2. Heard the learned counsel for the petitioner, the learned standing counsels for the respondents 1 to 5, and 6 and the learned Government Advocate (Tax) for the respondents 7 & 8.

3. The petitioner seeks to challenge the calculation of the Top Sheet regarding the petitioner’s bill dated 23.03.2018. According to the petitioner, the Top Sheet prepared is not reflecting in the actual tax paid by the petitioner under the GST and Chapter Heading No. 995421 referred to in the Top Sheet pertains to the General Construction Services and therefore, the petitioner will not fall under such services. By contending so, the petitioner made a representation dated 14.06.2018 before the fifth respondent seeking clarification, more particularly, with regard to the relevant Chapter Heading applicable to the case of the petitioner. It is stated that the said representation is not considered so far.

4. However, the learned counsel for the petitioner raised very many grounds touching upon the merits of such clarification, as sought for by the petitioner.

5. On the other hand, the learned standing counsel for the respondents 1 to 5 submitted that in view of the letter of acceptance dated 31.07.2017, executed by the petitioner, they are bound to pay the GST as applicable from 01.07.2017 as per the provisions of the GST Act 2017. It is further stated that in case, if he seeks any clarification with regard to the rate of tax payable under the GST, they have to address their representation only to the concerned Official who prepared the Top Sheet viz., the Senior Divisional Engineer, West, Chennai Division. Therefore, it is contended that it is open to the petitioner to make such representation before the concerned Official and if any such representation is made, the same will be addressed accordingly.

6. Considering the above stated facts and circumstances, more particularly, by considering the fact that the petitioner has raised an issue with regard to the Chapter Heading in consonance with the work executed by him, certainly, it is for the authorities concerned to clarify the same as, at this stage, this Court, is not inclined to go into such issue and express any view.

Therefore, without expressing any view on the merits of the contentions raised by this Court, this writ petition is disposed of, by giving liberty to the petitioner to make a fresh representation before the Senior Divisional Engineer, Chennai Division (West), within a period of 7 days from the date of receipt of a copy of this order. On receipt of such representation, the said official viz., the Senior Divisional Engineer, Chennai Division (West), shall consider the same and pass appropriate orders/communication on merits within a period of two weeks, thereafter. No costs. Consequently, connected miscellaneous petitions are closed.

M/S VASU CLOTHING PRIVATE LIMITED THROUGH SHRI AJAY JAIN VERSUS UNION OF INDIA THROUGH MINISTRY OF FINANCE

Levy of CGST, SGST and IGST – duty free shops at international airports in India – seeking of interim direction be issued to the Board through member GST to issue necessary clarification regarding eligibility of refund of accumulated credit of CGST, SGST and IGST paid by the duty free shops on goods and services supplied by the Indian supplier.

Held that:- The learned Counsel for the respondents is directed to seek instructions from the Board for issuance of clarification and response – List immediately after ten days.

No.- W. P. No.17999 of 2018

Dated.- August 23, 2018

Citations:

  1. Hotel Ashoka (INDIAN TOURISM DEVELOPMENT CORPN. LTD.) Versus ACCT and Anr. – 2012 (2) TMI 62 – Supreme Court

P. K. Jaiswal And S. K. Awasthi, JJ.

Shri R. Gogoi and Shri Alok Barthwal, learned Counsel for the petitioner

Shri Prasanna Prasad, learned Counsel for the respondents

ORDER

Heard on the question of admission as well as for grant of interim relief.

Issue notice.

Shri Prasanna Prasad, learned Counsel accepts notice on behalf of respondents and, therefore, no further notice is required.

In respect of interim relief, learned Counsel for the petitioner has submitted that the duty free shops at international airports in India are located beyond the customs frontier of India and any transaction that takes place in a duty free shop is said to have taken place outside India and petitioner is not liable to pay any CGST, SGST and IGST.

His submission is that some interim direction be issued to the Board through member GST to issue necessary clarification regarding eligibility of refund of accumulated credit of CGST, SGST and IGST paid by the duty free shops on goods and services supplied by the Indian supplier. He has also drawn our attention to the decision of Apex Court in the case of M/s. Hotel Ashoka (Indian Tourism Development Corporation Limited) Versus Assistant Commissioner of Commercial Taxes and another (Civil Appeal No.2560 of 2010) reported in (2012) 276 ELT 433.

Considering the aforesaid, we direct the learned Counsel for the respondents to seek instructions from the Board for issuance of clarification and response, as the matter is already settled by the Apex Court, within a period of ten days from today.

List immediately after ten days.

ADVANTAGE INDIA LOGISTICS PVT. LTD. VERSUS UNION OF INDIA & OTHERS

Jurisdiction – Competency to issue SCN – sole contention of the learned counsel for the petitioner is that in absence of any notification under Section 4 of IGST Act, 2017, the respondent No.4 is not competent to issue show cause notice and the impugned seizure memo dated 15.07.2018 is wholly without jurisdiction – Held that:- The officers appointed under the MPGST Act, 2017 was authorized to be proper officers for the purposes of the IGST Act.

The officers appointed under the MPGST Act are authorized to be proper officers for the purpose of IGST and, therefore, the contention of the petitioner that no notification was issued and in absence of any notification under Section 4 of the IGST Act has no force, the contention of the petitioner cannot be accepted that the action of the respondent No.4 is wholly without jurisdiction.

Petition dismissed with liberty to avail the remedy of appeal provided under the statute.

No.- Writ Petition No.16266 of 2018

Dated.- August 23, 2018

Shri Pankaj Kumar Jaiswal And Shri Sunil Kumar Awasthi, JJ.

For the Petitioner : Shri Vivek Dalal, learned counsel

For the Respondent Nos. 2 to 3 – State : Shri Romesh Dave, learned Government Advocate

ORDER

PER P.K. JAISWAL, J.

In the present writ petition, the petitioner – Advantage India Logistics Private Limited is praying for quashment of seizure memo dated 15.07.2018 (Annexure-P/1) issued under Section 129(1) of Madhya Pradesh Goods & Services Tax Act, 2017 (in short “the MPGST Act, 2017”).

2. According to the petitioner, M. P. State Government or officials authorized under the MPGST Act, 2017 have no jurisdiction to exercise the powers under the Integrated Goods and Services Act, 2017 (in short “the IGST Act, 2017), particularly under Section 4 of the IGST Act, 2017.

3. It is also averred that there is no separate notification authorizing officials of the State Government under the IGST Act to exercise powers under the IGST Act, 2017, therefore, the respondent Nos.3 and 4 have no power to inspect, search and seize goods under the IGST Act, 2017 and prayed for its quashment.

4. The sole contention of the learned counsel for the petitioner is that in absence of any notification under Section 4 of IGST Act, 2017, the respondent No.4 is not competent to issue show cause notice and the impugned seizure memo dated 15.07.2018 is wholly without jurisdiction.

5. The IGST Act, 2017 deals with taxability of inter-state supply of goods and services. Section 4 of the IGST Act reads as under :-

4. Without prejudice to the provisions of this Act, the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such exceptions and conditions as the Government shall, on the recommendations of the Council, by notification, specify.

6. From perusal of the aforesaid, it is clear that the officers appointed under the MPGST Act, 2017 was authorized to be proper officers for the purposes of the IGST Act.

7. At present, no notification was issued by the Central Government under Section 4 of the IGST Act. By order dated 12.10.2017, the respondent No.4 was authorized as proper officer and was bestowed with powers such as inspection, search and seizure under Section 68 of the MPGST Act. Serial Nos.31 and 57 of the order dated 12.10.2017 (Annexure-R/1) reads as under :-

S. No. Section Functions Assigned Desgination of Proper Officer
31 68(3) To intercept any conveyance to inspect documents, devices and goods Deputy Commissioner of State Tax Assistant Commissioner of State Tax State Tax Officer Inspector of State Tax Taxation Assistant
57 129(3) To issue notice and pass an order in tax and penalty of relation to seized goods Deputy Commissioner of State Tax Assistant Commissioner of State Tax State Tax Officer

8. Section 20 of the IGST Act provides for the provisions of Central Goods & Services Tax Act (in short “the CGST”) relating to inspection, search, seizure etc. Section 68 of the MPGST Act provides the powers of inspection, search and seizure of goods in movement. Section 129 of the MPGST Act provides the power in respect of detention, seizure and release of goods and conveyance in transaction.

9. In the present case, it is an admitted position that the subject vehicle was transporting goods for inter-state supply of goods from Gurgaon, Haryana to Pune, Maharashtra. As per E-Way Bill System (Annexure- P/4), the number of vehicle was mentioned as HR-38-0823 whereas, the correct vehicle number is HR-38-X-0823. It was found by the respondent No.4 that the E-Way Bill was defective and not updated, therefore, show cause notice was issued on 13.07.2018 to inspect the subject vehicle on 15.07.2018. On inspection, the respondent No.4 in exercise of powers under Section 129(1) of the MPGST Act passed the seizure order (Annexure-P/1) on 15.07.2018.

10. The respondent No.4 in compliance of the statutory mandate under Section 129(6) has passed a final order dated 23.07.2018 directing the petitioner to pay an amount of ₹ 4,20,266/- (minimum) as tax and penalty in terms of Section 129(3) of the MPGST Act.

11. Against the aforesaid final order dated 23.07.2018, statutory appeal under Section 109 of the Act has been provided.

12. Learned counsel for the petitioner has drawn our attention to Article 246-A and 269-A of the Constitution which was brought by one hundred and first (101) amendment on 08.09.2016 and submitted that Parliament has exclusive power to make laws with respect to goods and service tax where the supply of goods, or of services, or both takes place in the course of inter-state trade or commerce. As no notification has been issued under Section 4 of the IGST Act and, therefore, the respondent No.4 was not competent to pass any order and, therefore, the petitioner without availing the statutory remedy has filed this writ petition. He has also drawn our attention to the notification dated 13.10.2017 issued by the Government of India, Ministry of Finance in respect of refund under Section 20 of the IGST Act and submitted that similar type of notification is required and prayed for its quashment.

13. On due consideration of the arguments of the learned counsel for the parties so also the provisions of Section 4 of the IGST Act, we are of the view that officers appointed under the MPGST Act are authorized to be proper officers for the purpose of IGST and, therefore, the contention of the petitioner that no notification was issued and in absence of any notification under Section 4 of the IGST Act has no force, we cannot accept the contention of the petitioner that the action of the respondent No.4 is wholly without jurisdiction.

14. In view of the statutory appeal provided under the statute, we are not inclined to entertain this writ petition and dismiss the writ petition with liberty to avail the remedy of appeal provided under the statute. No costs.

KAMAKHYA PLASTICS PVT. LTD. VERSUS UNION OF INDIA AND 6 ORS.

Refund of Education Cess and Higher Education Cess – North East Industrial Policy of 1997 – whether the education cess and the higher education cess paid on all excisable goods were also subjected to a refund under the North East Industrial Policy of 1997?

HELD THAT:- The Hon’ble Supreme Court in M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 – SUPREME COURT] arrived at a conclusion that the education cess and the higher education cess levied @ 2% of the excise duty would partake the character of excise duty itself. Accordingly, it was held that the appellants therein were entitled to refund of the education cess and the higher education cess, which was paid along with the excise duty once the excise duty itself was exempted from levy.

This Court directs the respondents in the Department of Excise/Goods and Services Tax of the Government of India, more particularly the respondent Nos. 4 to 6 to make an appropriate calculation and thereupon refund the education cess and the higher education cess paid by the petitioner from May, 2008 to February, 2015 – Petition disposed off.

No.- WP(C) 5760/2018

Dated.- August 27, 2018

Citations:

  1. M/s. SRD Nutrients Private Limited Versus Commissioner of Central Excise Guwahati – 2017 (11) TMI 655 – Supreme Court

HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

For the Petitioner : DR. ASHOK SARAF

For the Respondent : ASSTT.S.G.I.

JUDGMENT

Heard Dr. A. Saraf, learned senior counsel for the petitioner and Mr. S.C Keyal, learned ASGI for the respondents in the Ministry of Finance and Ministry of Commerce and Industries of the Government of India, as well as the authorities in the office of the Commissioner of Central Excise and Goods and Services Tax at Guwahati.

2. The petitioner is an industrial unit located within the State of Assam and claims to be entitled to certain benefits as regards exemption from excise duty as per the North East Industrial Policy, as contained in the Office Memorandum dated 24.12.1997 and the subsequent notifications of the Central Government for the purpose. As per the North East Industrial Policy of 1997, exemptions as regards excise duty were applicable to such industrial units, which had commenced their commercial production on or after 24.12.1997 and also in respect of such industrial unit, which have been in existence prior to 24.12.1997, but had undertaken substantial expansion by way of increase in the installed capacity after the said date.

3. As per the Finance Act of 2004, an education cess and a higher education cess was levied on all excisable goods in addition to any other duties of excise chargeable on such goods under the Central Excise Act of 1944. Accordingly the petitioner, apart from the excise duty, had also paid the education cess and the higher education cess as introduced by the Finance Act of 2004.

4. Under the industrial policy of 1997, the petitioner accordingly claimed a refund of the excise duty paid as admissible under the policy and upon being subjected to the necessary process, the required amount of excise duties paid were refunded.

5. As the refund of excise duty was a specific provision in the North East Industrial Policy of 1997, a question had arisen as to whether the education cess and the higher education  cess paid on all excisable goods were also subjected to a refund under the North East Industrial Policy of 1997, or in other words, whether the education cess and higher education cess were a part of the excise duty.

6. The said issue was finally decided by the Hon’ble Supreme Court in Civil Appeal Nos.2781-2790 of 2010 (M/s SRD Nutrients Private Limited –vs- Commissioner of Central Excise, Guwahati) and other similar civil appeals by its judgment and order dated 10.11.2017.

7. In its judgment and order, the Hon’ble Supreme Court arrived at a conclusion that the education cess and the higher education cess levied @ 2% of the excise duty would partake the character of excise duty itself. Accordingly, it was held that the appellants therein were entitled to refund of the education cess and the higher education cess, which was paid along with the excise duty once the excise duty itself was exempted from levy.

8. In this writ petition, by relying upon the aforesaid judgment of the Hon’ble Supreme Court, the petitioner claims for a direction for refunding the education cess and the higher education cess as stood exempted in terms of Notification No.20/2007-CE dated 25.04.2007 for the period May, 2008 to February, 2015.

9. Mr. S.C Keyal, learned ASGI appearing for the Ministry of Finance, Government of India, Ministry of Commerce, Government of India as well as the authorities in the Excise and Goods and Service Tax Department, upon instruction, submits that in the instant case also by following the pronouncement of the Hon’ble Supreme Court in M/s SRD Nutrients Private Limited –vs- Commissioner of Central Excise, Guwahati, the authorities are bound to refund the education cess and the higher education cess paid by the petitioner from May, 2008 to February, 2015.

10. In this respect, Dr. A. Saraf, learned senior counsel for the petitioner also refers to an order dated 02.08.2018 of the Division Bench of the High Court of Meghalaya, wherein also in a similar circumstance and upon an agreement being reached between the parties, a direction was issued to the respondents therein to refund the education cess and the higher education cess, which was collected by the respondent authorities from the appellant therein along with the excise duty for the given period.

11. Accordingly, in view of the consensus reached between the parties, this Court directs the respondents in the Department of Excise/Goods and Services Tax of the Government of India, more particularly the respondent Nos. 4 to 6 to make an appropriate calculation and thereupon refund the education cess and the higher education cess paid by the petitioner from May, 2008 to February, 2015.

12. As agreed by Mr. SC Keyal, learned ASGI, the aforesaid process of refund be undertaken and completed, leading to refund of the education and higher education cess, within a period of 05(five) months from the date of receipt of a certified copy of this order.

In terms of the above, the writ petition stands disposed of.

JAHANPANAH CLUB VERSUS ASSISTANT COMMISSIONER & ANR.

Input tax credit – It is contended that without a formal order, on the merits, mere rejection cannot be appealed – HELD THAT:- Learned Standing Counsel who accepts notice on behalf of the respondent stated that a formal order examining the petitioner’s contentions on the merit and adducing reasons would be made. The respondent shall ensure that the concerned Assistant Commissioner or appropriate Adjudicating Authority, completes the proceedings in this regard and passes a reasoned order within six weeks from today, after granting appropriate opportunity to the petitioner to adduce all arguments available to it.

Petition disposed off.

No.- W.P.(C) 8952/2018, C.M. Appl. No. 34408/2018

Dated.- August 27, 2018

Citations:

  1. JAHANPANAH CLUB Versus COMMISSIONER OF GST & ANR. – 2018 (6) TMI 1758 – DELHI HIGH COURT

MR. S. RAVINDRA BHAT AND MR. A. K. CHAWLA, JJ.

Petitioner: Mr. Sumit K. Batra, Advocate

Respondent: Mr. Harpreet Singh Senior Standing Counsel with Mr. Abhishek Ghai, Advocate

ORDER

The petitioner had approached this court previously by filing W.P.(C) No. 6343/2018 contending that the credit it was entitled to, was not granted. The court had disposed of the writ petition on 01.06.2018 directing the concerned officer (Assistant Commissioner, GST) to consider the representation. By letter dated 05.06.2018, the Assistant Commissioner, Central GST Division, rejected the representation stating as follows:

“Sir/Madam,

Sub:- Compliance of Hon’ble Delhi High Court order Dated 01.06.2018 in W.P(C)No. 6343/2018 in the matter of M/s. Jahanpanah Club versus Commissioner of GST & Anr. -regarding.

Please refer to the above subject.

In this regard, enclosed documents and other supporting documents viz. photocopies of Service tax Input Credits invoices for the period 01.05.2015 to 30.06.2017, ST-3 for the period 2011-12 to 2016-17(April to June), payments details of service tax input supplier for the period 01.05.2015 to 30.06.2017, submitted to this office vide your letters dated 21.05.2018, 23.05.2018 & 25.05.2018 have been examined to verify the admissibility of the Input service tax as per provisions of CENVAT credit Rules, 2004 as amended.

Pursuant to the examination, your eligible Input service tax for the period 2011-12 to 2016-17(upto 30.06.2017) is as under:-

1. Service tax input Credit (including EDU Cess and SHE Cess) amounting to ₹ 18,48,187/-

2. Krishi Kalyan Cess amounting to ₹ 33,559/-. Further, it is informed that liabilities arising on account of interest and penalties cannot be adjusted from input Cenvat credit.

Yours faithfully,

Sd/-

Assistant Commissioner,

Central GST Division,

Nehru Place Delhi-East.”

It is contended that without a formal order, on the merits, mere rejection cannot be appealed. Learned Standing Counsel who accepts notice on behalf of the respondent stated that a formal order examining the petitioner’s contentions on the merit and adducing reasons would be made. The respondent shall ensure that the concerned Assistant Commissioner or appropriate Adjudicating Authority, completes the proceedings in this regard and passes a reasoned order within six weeks from today, after granting appropriate opportunity to the petitioner to adduce all arguments available to it.

The writ petition is disposed of in the aforesaid terms. Order dasti.