13) Non-uploading of E-way Bill – Detention u/s 129 not justified
Indus Towers Ltd Vs Assistant State Tax Officer reported in 2018-TIOL-12-HC-KERALA-GST.
Goods detained because it was not accompanied by State E-way bill. Since the assessee had not uploaded declaration in Form KER-1 before the goods were transported, such transportation was not in accordance with Rules 55 and 138 of the State GST Rules –
Decision of High Court
Whether detention u/s 129 of the Acts was justified merely for non compliance of Rules 55 and 138 of the State GST rules – Considered provisions of Sections 129 & 130 of the statutes – Combined reading of the two indicates that detention of goods is contemplated only when it is suspected that the goods are liable for confiscation – In such case, mere infraction of the procedural Rules like Rules 55 and 138 of the State GST Rules cannot result in detention of goods, though they may have freedom to impose penalty – Hence detention of goods is without jurisdiction – Department directed to release the goods:
14) Detention of Goods sent for Job Work
Age Industries (P) Ltd Vs Asst State Tax Officer reported in 2018-TIOL-07-HC-Ker-GST GST – Petitioner engaged in manufacture and sale of surgical gloves and registered under CGST as well as Kerala SGST Act –Goods ( surgical gloves) sent for quality appraisal on job work basis against delivery challans detained by respondent on the ground and that, therefore, tax evasion is suspected – detention challenged under Writ Petition – Government Pleader attempted to support the impugned detention on the reason that the delivery chalan that accompanied the goods was not the one prepared in accordance with the provisions contained in the State SGSTRules – however, he did not attempt to support the impugned detention on the alleged ground that the person to whom such goods are supplied is unregistered is irrelevant in the context of the statutes.
Held: Respondent cannot be heard to support the detention on a reason not mentioned in the said notice – Writ petition is allowed, the impugned detention is held to be illegal and the respondent is directed to release the consignment to the petitioner forthwith – GST– Proceedings for contravention of State SGSTRules, if any to continue: High Court
15) Mohit Minerals Pvt Vs UOI – 2018-TIOL-06-HC-AHM-GST
Challenge to the vires of notification IGST – Notification 8 /2017-IT(Rate) & Entry no. 10 of Notfn. 10/2017-IT(Rate) – Petitioner contends the said notification is ultra vires the Act. Grievance is that they are asked to pay tax at the prescribed rate all over again on the ocean freight; that in case of CIF contracts, the service provider and service recipient both are outside the territory of India and no tax can 21 National Academy of Customs, Indirect Taxes and Narcotics (NACIN) and service recipient both are outside the territory of India and no tax can be collected even on reverse charge mechanism on such service and in case of High Sea sales, the burden is cast on the petitioner as an importer whereas, the petitioner is not the recipient of the service a t all inasmuch as it is the petitioner’s seller of goods on high sea basis who has received the services from the exporter/ transporter.
Notice and notice as to Interim relief, returnable on 09.03. 2018 – Ahmedabad High Court
16) Directions to re -open GST Portal for filing of TRAN 1 by Allahabad HC
M/sContinental India Pvt Ltd and Another Vs Union of India 2018-TIOL-04-HC-ALL-GST
Appellant seeking a writ of mandamus directing the GST Council to make recommendations to the State Government to extend the time period for filing of GST TRAN-1 because their application was not entertained on the last date i.e. 27.12.2017 and they have filed complete application for the necessary transitional credit – Appellant submits that despite making several efforts on the last date for filing the application, the electronic system did not respond as a result of which petitioner is likely to suffer loss of credit that it is entitled to by passage of time; that they have also submitted an application for transition credit manually on 10.01.2018.
High Court has directed Respondents(Union of India) to reopen the portal within two weeks – In the event they do not do so, they will entertain the application of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner – They will also ensure that the petitioner is allowed to pay its taxes on the
regular electronic system also which is being maintained, for use of the credit likely to be considered
17) SC stays proceedings in Delhi & Bombay HC challenging GST on Sanitary Pads
The Supreme Court stayed proceedings in the Delhi and Bombay High Courts on cases related to levying Goods and Services Tax (GST) on sanitary napkins.
• The top court further said it would hear all cases pertaining to this matter; they were stalled from being examined in state high courts.
• Petitioners have also been issued notices by the apex court in this regard.
• Transfer Petition(s)(Civil) No(s).2447-2448/2017; UOI Vs Shetty Women Welfare foundation
18) Levy of IGST on sale of goods lying in Customs Bonded Warehouse
Challenge to Circular No.46/ 2017-Customsdated 24.11.2017 2018-TIOL-03-HC-DEL-GST
Devashish Polymers Pvt Ltd Vs UoI (Dated: December 22, 2017 )
GST on supply of goods lying in bonded warehouse – Petitioner submits that there would be double payment of IGST- Asper the illustration, IGST@12% amounting to Rs.13.2 would be payable @12%on the import value of the goods of Rs.100 plus basic customs duty – This amount would be payable when the goods are released by “C” from the warehouse – Further, the petitioner, i.e., Cwould be liable to pay IGSTon the entire sale consideration between the seller (B) and the purchaser (C) on Rs.300/ – – As per the petitioner, this Rs.300/ – would include value of the goods of Rs.100/ -, basic customs duty of Rs.10/ – and duty deferred, i.e., IGST of Rs.23.20.
Held: Respondents to obtain instructions on the said aspect and clarify the position in the counter affidavit – To be relisted onMarch 8, 2018
19) Tenders to be invited excluding GST – Case Decided in Revenue Favour
Tenders to be invited excluding GST – Case Decided in Revenue FavourChallenge to Circular No.46/ 2017-Customsdated 24.11.2017 2018-TIOL-02-HC-MP-GST
Nirmal Constructions Vs State of MP(Dated: September 6, 2017 ) GST – Challenge by the petitioner is to a communication by the State Government, informing its decision dated 05.08.2017 that for future contracts offers should be invited by excluding the amount of GST, and thereby cancelling the tender in which the petitioner participated.
Held: Letter of acceptance of the contract has not been communicated to the petitioner, therefore, it is not a case of concluded contract – In the absence of concluded contract, the petitioner cannot claim right to seek grant of contract only on the basisof the offer submitted by the petitioner at one stage –Consequent upon introduction of GST, tax regime hasundergone change, therefore, State Government’s decision not to act upon the tenders invited with effect from 1.7.2017 to 5.8.2017 cannot be said to be illegal or arbitrary – nomerit in the petition, hence dismissed: High Court.
20) ITC of goods purchased more than 12 months prior to 1st July, 2017
Validity of union legislation questioned in the following cases Challenge to the Vires of Section 140 (3 )(iv) of CGST Act, 2017 2017 – TIOL – 45 – HC – DEL – GST
Lupin Ltd Vs UoI (Dated : December 22 , 2017 )
CGST – Input Tax Credit (ITC) on pre – GST stock – stipulation in Section 140 ( 3 )(iv) of CGST Act restricting transitional credit up to 1 year – Petitioner challenging the same .
Held : It is open to the petitioner to claim whatever it wish to and in the event the credit sought is denied, the respective entitlement of the parties shall be subject to the final decision – Notice issued – List on 25 . 01 . 2018 : High Court.