Newsletter – Vol. 1, Issue 20 – 05.12.2021

Download .pdf version, to share it with your colleagues – link here.

Goods which are not subject to any export duty (Nil rate and fully exempted) would not be covered by the restriction imposed under the first proviso to section 54 (3) of the CGST Act for the purpose of availment of refund of accumulated ITC: Hon’ble Orissa High Court
In M/s B.S. Minerals v. State of Orissa and Ors., W.P. (C) No. 34402 of 2021, Hon’ble HC set aside the rejection of the refund application and directed the department to reprocess the refund application in light of the circular issued on 20.09.2021 wherein it is stated that goods which are not subject to any export duty (Nil rate and fully exempted) would not be covered by the restriction imposed under the first proviso to section 54(3) of the CGST Act for the purpose of availment of refund of accumulated ITC.  

The blocking of ITC loses its force after the expiry of one year from the date of the order of imposing such restriction: Hon’ble Calcutta High Court
In M/s A.B. Furnishing Pvt. Ltd. & Anr. v. Superintendent, Anti Evasion, Central GST & Central Excise, Howrah Commissionerate & Ors., W.P.A. 15743 of 2021, Hon’ble HC held that blocking of the ITC is no more valid now, since it has lost its force in view of the provisions of Rule 86A(3) of the CGST Rules and the authority concerned will immediately lift the blockage if it has not unblocked by date. 

The petitioner, who is the owner of the goods has not been afforded the opportunity at all as no service of SCN is also made and the opportunity/SCN was only afforded to the driver – violation of PNJ: Hon’ble Gujarat High Court
In M/s Tanay Creation v. State of Gujarat, R/SCA No. 15195 of 2021, SCN was issued only to the driver of the conveyance and not to the owner of the goods or owner of the conveyance, Hon’ble HC held that not only there has been no service of any show cause notice prior to the passing of an order under Form GST MOV-10 or Form GST MOV-11, but also no opportunity of hearing was made available to the petitioner. That itself is a ground for this Court to entertain this petition. The order impugned is in complete breach of the principles of natural justice for not having issued the show cause notice in the first place and not even having afforded any opportunity of hearing to the petitioner (owner of the goods). The quashing of the order will sub-serve the purpose and hence the impugned order passed will need to be quashed and set aside.

There is no embargo under the CGST Act restraining the petitioner from seeking pre-arrest bail….. Anticipatory Bail is a statutory right in consonance with the Right to life and personal liberty under Article 21: Hon’ble Delhi High Court
In Tarun Jain v. Directorate General of GST Intelligence DGGI, BAIL APPLN. 3771/2021, the petitioner had approached the Court by way of an application under S. 438 of the Cr.P.C. seeking anticipatory bail in a matter pertaining to S. 132 of the CGST Act. The department has alleged that the Company of which the petitioner is a director, along with other firms are involved in fraudulently availing and passing on ineligible/fake Input Tax Credit amounting to ₹ 72,00,00,000/- (Rupees Seventy-Two Crores). The Hon’ble HC discussed all the provisions and relevant judgments related to anticipatory bail and observed that the offences under the Act are not grave to an extent where the custody of the accused can be held to be a sine qua non. Further, the Hon’ble HC also observed that anticipatory bail is one of the facets of Article 21 of the Constitution. The Hon’ble HC granted the anticipatory bail with stringent conditions.  

Absence of the words provisional release or absence of reference to section 67(6) of the Act is not determinative when S. 130(2) of the Act itself is manifest of such a release: Hon’ble Kerala High Court
In State Tax Officer, the Assistant Commissioner and Ors. v. Y. Balakrishnan, RP No. 630 OF 2021 in W.P. (C) No. 18169 of 2021, while dismissing the review petition filed by the department, the Hon’ble HC observed (1) The provisions of section 130 of the Act contemplate release of goods on payment of fine in lieu of confiscation at two stages (i) during the process of adjudication, under section 130(2) and, (ii) post-adjudication under section 130(3) of the Act. (2) At the time of the release of goods under section 130(2) of the Act, the owner of the goods is required to pay the fine in lieu of confiscation alone, while penalty tax and other charges can be paid after adjudication and, (3) The basis for calculating the fine in lieu of confiscation under section 130 of the Act is only the market value as defined under section 2(73) of the Act and not the maximum retail price. 

Filing of Form TRAN-1 allowed: In M/s Trivedi and Sons Pvt. Ltd. v. Union of India and Ors., W.P. (C) 1548/2021 – Hon’ble Delhi High Court and  In M/s Tarun Enterprises Pvt. Ltd. v. UOI and Ors. W.P.(C) 1560/2021 

Rule 97A allows the manual filing of an application and to that extent Circular No. 125/44/2019-GST dtd. 18.11.2019 (stating e-filing of an application) is not applicable. In M/s Laxmi Organic Industries Ltd. v. UOI and Ors., Writ Petition No. 7861 of 2021 – Hon’ble Bombay High Court 

Jurisdiction – Lack of inherent jurisdiction with the Dy. Commissioner to issue notice – Interpretation of Sections 3, 4 and 5 – No defect exists in the exercise of power made by the Deputy Commissioner. In M/s Maa Geeta Traders v. Commissioner Commercial Tax and Anr., Writ Tax No. – 760 of 2021 – Hon’ble Allahabad High Court 

The author may be reached at*

Facebook Twitter Linkedin
Scroll Up
Copy link
Powered by Social Snap