1) Case reported in 2018-TIOL-48-HC-ALL-GST in the case of Modern Traders Vs State of UP–• GST- s.129 of the UPGSTAct, 2017 – Non-accompaniment of E-way bill –
The High Court Held – As e-way bill was produced on the same day of the interception of goods along with documents indicating payment of IGSTbut before seizure order is passed, no justification for passing orders of seizure of goods/vehicle and tax demand/penalty – order quashed, Respondent directed to immediately release goods/vehicle.
2) Case reported in 2018-TIOL-44-HC-ALL-GST in the case of Maneesh Singh VsState of UP– The petitioner was served a notice from the municipal corporation concerned, raising duty demand for advertisement tax – Hence the present writ.
The High Court Held – Considering the provisions of Section 173 of the UPGST Act, 2017, the provisions of Section 172(2), 192 & 193 of the UPMunicipal Corporation Act, 1959 have been omitted – In such case, the municipal corporation concerned has no authority to levy advertisement tax – The activity in question will only attract levy of GST – Hence the SCN issued is bad in law & merits being quashed: HC.
3) Case reported in 2018-TIOL-40-HC-Kerala in the case of Kairali Granites Vs Assistant State Tax Officer – A consignment of marble, granite slabs & tiles was detained – Later, detention notice was issued to the assessee u/s 129(3) of the CGST Act, 2017 – The assessee claimed that the defect was purely technical – That the vehicle details were not updated in the e-Way bills – The assessee claimed that such defect did not warrant detention of goods, particularlywithout there beingany evasion of tax.
TheHCheld that Goodsdetained under a detention notice issued under CGST or SGST, cannot be released without furnishing security equivalent to the duty demand raised – Hence assessee directed to deposit bank guarantee, upon payment of which, the goods & vehicle would be released – Department to then adjudicate upon imposition of
penalty.
4) Case reported in 2018-TIOL-39-HC-Kerala in the case of State Tax Officer (INT) Vs Kerala Gujarat Cargo Express- GST – Alleged evasion of SGST and CGST – Single Judge ordered release of the vehicle and goods by executing a simple bond – State has challenged the order contending that it is passed overlooking Rule 140 of the SGSTRules.
The HC(Division Bench) held that on a reading of Rule 140, it is of the view -In the absence of any challenge against the rules, the goods and vehicle can be released only in accordance with Rule 140 – Therefore, interim order modified directing to release the goods and vehicle either on furnishing the bank guarantee or depositing the amount demanded – Writ Appeal disposed: High Court.
5) Due Date for filing of TRAN-1 extended by HC to 10.05.2018 (for those who could not file due to system glitches).
- Case reported in 2018-TIOL-26-HC-Mum-GST; Padmavati Enterprises Vs UOI and Ors.
- Writ Petitions filed in Mumbai High Court by Taxpayers who could not file Form TRAN-1 due to system glitches
Taxpayers who could not access the system due to technical glitches – Given that only 25th to 27th April, 2018 are the working days available before 30th April, 2018 and 30thApril, 2018 is declared to be a public holiday, interest of justice would be served by extending this date in relation to filing of TRAN-1 and which filing was not possible due to technical glitches / IT related glitches to 10th May, 2018 –High court
6) Levy of GST on on time Lease Premium
Builders Association of Navi Mumbai Vs UoI reported in 2018-TIOL-24-HC-Mum GST –
CIDCO has correctly collected GST on the total one-time lease premium amount payable by the successful allottee at the rate of 18% – Demand for payment of GST is in accordance with law – said demand cannot be said to ve vitiated by any error of law apparent on the face of the record: Mumbai High Courrt
7) JCB India Ltd. Vs UoI reported in 2018-TIOL-23-HC-Mum-GST
CGST – Section 140(3) of the CGST ACT, 2017 – Petitioners challenge (iv) prescribing time limit for transitional credit availment on the ground that the same violates the mandate of Articles 14 and 19(1) (g) of the Constituion of India.
Held: CENVAT credit is a mere concession and it cannot be claimed as a matter of right -credit on inputs under the existing law itself is not absolute but a restricted or conditional right- If the existing law itself imposes condition for its enjoyment or availment, then, it is not possible to agree with the counsel that such rights under the existing law could have been enjoyed and availed of irrespective of the period or time provided therin – The period or the outer limit is prescribed in the existing law and Rules of CENVAT credit anacted therunder-
In the circumstancs, Clause (iv) is not arbitrary, unreasonable and violative of Articles 14 and 19(1)(g) of the constitution of India – If right to avilment of CENVAT credit itself is conditional and not restricted or absolute, then, the right to pass on that credit cannot be claimed in absolute terms – there cannot be a estoppel against a statute- transitional arrangements that have been made have clear nexus with the object sough to be achieved and cannot be struck down as having no such relation or nexus – Petitions fail: High court.
8) Challenge to the vires of second proviso to Section 140(1)
Willowood Chemicals Pvt Ltd Vs UoI (2018-TIOL-21-HC-Ahm-GST)
CGST – Petitioner challenging section 140(1), second proviso thereto of Gujarat GST Act in terms of which certain restrictions have been placed on a dealer for taking tax credit of the taxes already paid under the VAT Act – Petitioner submits that the provision deprives a dealer of his vested right and thus the statute acts retrospectively and imposes an unreasonable restriction.
Held: Notice returnable on 19.04.2018 – As vires of the Act are under challenge, notice to be issued to Advocate General also: High Court
9) Writ Seeking on inclusion of Petrol/Diesel under GST dismissed
K.K. Ramesh Vs UOU ( 2018-TIOL-20-HC-Mad-GST)
Petitioner seeks inclusion of Petrol and diesel under GST on the ground that although International market price of crude oil per barrel is very low an exorbitant increase in the selling price of petroleum products directly affects the common man for the reason that most of the goods are transported through road/service transport and any increase in price of the fuel is bound to increase the selling price of the commodities, especially essential commodities and it is high time that the petrol and diesel prices should be brought within the ambit of Goods and Service Tax (GST)
Held: GST Council is having representation of the State Governments also and, therefore, their views have also to be elicited, before the GST Council take a call as to bring the petrol and diesel within the ambit of GST – it is the prerogative of the Central Government to take a call on the basis of the recommendations of the GST Council –
It is a well-settled position of law that “it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair” and that Court can interfere only when it is found to be arbitrary or based on an irrelevant consideration or mala-fide or against any statutory provisions – High Court is not in a position to issue any positive direction to the respondents to consider the prayer sought for by the petitioner – Petition dismissed.
10) Systems should operate strictly in terms of Rules
Padmavati Enterprises Vs UOI (2018-TIOL-19-HC-Mum-GST)
GST – GSTR-3B returns for the period from October 2017 allowed to be filed with late fees first and once paid and proof submitted, amount will be auto-credited/refunded within one week by GSTN – Statement of ASG accepted as undertaking to the High Court – outstanding and pending grievances to be redressed by Council/Ministry – systems should operate strictly in terms of the Act and Rules – Matter placed on 24 April, 2018: High Court
11) A M Design & Print Production (2018 )91 taxmann.com 193 (Delhi)
Section 49 r/w section 146 of CGST Act r/w Rule 86 of CGST rules, 2017 – payment of tax – whether as per section 146, mandate of CGST electronic portal is to facilitate registration, payment of tax, furnishing of returns etc – thus it could not be programmed so as to deny utilisation of CGST and SGST credit in a manner not envisaged either under Section 49(5) or the rules made under Section 49(4)
– Held Yes.
12) Acceptance of GST – TRAN 1
Arihant Superstructure Vs UOI ( 2018-TIOL-22-HC-Rajasthan).
GST – assessee-company is engaged in the real estate business – The Department declined to accept the GST TRAN-1 returns, amongst others, submitted by the assessee-company – Hence the present writ.
The HC Held – considering the decision of the Bombay High Court in Abicor and Binzel Technoweld Pvt. Ltd. Vs. The Union of India & anr., the Department is directed to accept the GST TRAN-1 submitted by the assessee – This is to be done manually or by opening the portal – Notices issued to parties.
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