Newsletter – Vol. 1, Issue 22 – 19.12.2021

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The levy GST on the supply of transportation of passenger service, through an ‘electronic commerce operator’, and provided by an auto-rickshaw challenged: Before Hon’ble Delhi High Court 
In M/s Uber India Systems Pvt. Ltd. v. UOI and Anr., W.P. (C) 14048/2021, the Writ Petition has been filed challenging clause (iv) of the Notification No. 16/2021-CT (Rate) dtd. 18.11.2021 and clause 1(i) and clause 2(i) of Notification No. 17/2021 – CT (Rate) dtd. 18.11.2021 as ultra vires the Constitution of India being unreasonable, arbitrary and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.

The limitation for filing revocation of cancellation of registration is well within the extended limitation (issued by CBIC) for the cancellation order passed on 24.09.2019: Hon’ble Madras High Court
In M/s S. 519. N. Ramanadhapuram Primary Agricultural Co-operative Credit Society v. CBIC and Ors., W.P. No. 24069 of 2021, the respondent authority cancelled the registration by an order dated 24.09.2019. The learned counsel for the petitioner submits that the time for filing an appropriate application for revocation of cancellation of registration was extended to 31.08.2020 vide CBIC by its order no. 01/2020-CT dtd. 25.06.2020 and was further extended by Notification No. 34/2021-CT dtd. 29.08.2021, up to 30.09.2021. The petitioner filed the revocation of cancellation application on 30.09.2021 but received a response that, “Application for Revocation of Cancelled Registration” cannot be filed after 579 days from date of Cancellation order”. Hon’ble HC held that respondent shall call upon the petitioner to comply with the requirements of Rule 23 and thereafter pass appropriate orders on merits and in accordance with law within a period of 45 days from the date of receipt of a copy of this order to restore the registration of the petitioner.

The order issued on 15.06.2020 is well within the limitation as covered by the orders passed by Hon’ble Supreme Court in Re Cognizance for Extension of Limitation: Hon’ble Madras High Court
In M/s Dow Chemical International Private Limited v. UOI and Ors., W.P. No. 24098 of 2021, the impugned orders were issued 15.06.2020 and the appeals were filed beyond the statutory limitation. Hon’ble HC held the facts indicate that the third respondent had passed an order dated 15.06.2020 at the time when the lockdown was clamped on account of the outbreak of the Covid-19 pandemic. The petitioner filed an appeal on 05.11.2020. After the appeal was filed, the Hon’ble Supreme Court has further extended a period of limitation vide order dated 08.03.2021 and 23.09.2021. The second respondent ought to have taken note of the same and numbered the appeal and taken up the appeal for final hearing.

The dispute regarding refund of IGST subsequently found/held – set aside impugned order stating it is only ‘subsequently held’ – remanded back without entering into merits: Hon’ble Chhattisgarh High Court
In M/s Radhemani and Sons v. Additional Commissioner (Appeals) CGST and CE and Ors., W.P.(T) No. 213 of 2021, First Appellate Authority observed that a refund in terms of Section 77 of CGST Act, 2017 and Section 19 of the IGST Act, 2017 would arise only when a supply considered as Intra-State supply is so held by any authority as Inter-State supply or vice versa. It, thus, held that the refund under these provisions would not arise suo motu (subsequently found) and rejected the appeal while affirming the order of the Adjudicating Authority. Hon’ble HC set aside the FAA’s order and remitted the matter back to the concerned appellate authority with a direction to decide the same afresh in the light of the circular issued on 25.09.2021 in accordance with the law. No observation on merits.  

The petitioner could not reply or appeal during the Covid-19 outbreak, the order passed without an opportunity of hearing is set aside: Hon’ble Madras High Court
In M/s Shri Gupta Sweets v. Assistant Commissioner (Circle) Salem and Ors., W.P. Nos. 23958, 23961 & 23966 of 2021, Hon’ble HC held that the notice that has been sent to the petitioner in GST ASMT 14 appears to have been delivered to the petitioner on 05.05.2021. It is a period when the country was reeling under the second wave of Covid-19 a week thereafter, the second lockdown was imposed in Tamil Nadu and few other states. The overall facts and circumstances indicate that the petitioner would not have gained anything by not replying to either the notice in form GST ASMT 14 or by not filing an appeal barring to suffer an adverse order. Thus, use of common portal though intended to facilitate faster service notice of orders and decisions, it is noticed that there are teething problems in the communication of the notice system derived under Section 169(1)(d) of the TNGST Act, 2017. Thus, the orders have been passed without a reply from the petitioner. Therefore, to meet the ends of justice, a fresh opportunity can be given to the petitioner to file a reply to the notices.

Upon the payment of the tax due, the assessee may be entitled to adjust the input tax credit in the last instalment: Hon’ble Meghalaya High Court
In M/s Jud Cements Ltd. & Anr. v. The Commissioner of CGST and Ors., WP (C) No. 344/2021, Hon’ble HC held that the entire amount of ₹ 43,49,50,071/- should be paid off by the appellants in 24 equal or nearly equal monthly instalments beginning December 15, 2021, and payable by the 15th day of the 23 succeeding months. The adjustment on account of the orders passed in the appeals referred to above and on account of ITC, if any, will be only against the last instalment.

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