S.No

Section

Case Subject

Case

Held

1

Section 67
and Section
54

Refund of
Amount
collected
during the
search

Modern Insecticides Ltd. v.
Commissioner, Central Goods
and Service Tax [2023] 153
taxmann.com 548 (Punjab &
Haryana)

Question for consideration, was whether amount paid by the petitioner on 16-1-2021, could be retained by the department without
issuing the show cause notice under section 74 (1) of the CGST Act that too after expiry of two years.
High Cout observed that amount was deposited from the date when search was conducted. However, no notice under section 74
(1) had been issued. Though department can initiate proceedings under section 74 (1) by issuing notice within the period of limitation,
they cannot retain the amount of Rs. 1.54 crore deposited by the petitioner, which as per department was voluntary. The amount
was deposited during search and as per judgment passed in Vallabh Textiles' case, this deposit cannot be taken to be voluntary.
Since no proceedings under section 74 (1) were initiated till date, as per Rule 142 (1A), the department cannot even issue Form
GST DRC-01A to ask the petitioner to make payment of tax, interest and penalty due. Therefore, a direction was given to return the
amount of Rs. 2.54 crores along with simple interest at the rate of 6% per annum.
Cases Referred-Vallabh Textiles v. Senior Intelligence Officer and others, 2022 SCC OnLine Del 4508, Bhumi Associate v. UOI,
SCA No. 3196 of 2021.

2

Article 226
of
Constitution

Extraordinary
circumstances
not made out
for Article 226

Muhammad Saleem
Shemsudeen v. Enforcement
Officer [2023] 153
taxmann.com 547 (Kerala)

The writ petition was dismissed stating that the Court did not any extra ordinary circumstances made out, to entertain the writ petition
by exercising the plenary powers of this Court under Article 226 of the Constitution of India. It was left up to the petitioner to invoke
his statutory remedies as provided under the GST Acts.

3

Section 29
and Section
30

No
retrospective
Cancellation if
notice does
not provides
so

Virender Kumar Jain v. Delhi
GST Officer, Ward 76 [2023]
153 taxmann.com 546 (Delhi)

The petitioner was not aggrieved by cancellation of his GST Registration; he was aggrieved because the registration had been
cancelled with retrospective effect from 1-7-2017
High Court noted that the show cause notice dated 16-2-2021 did not indicate that the concerned officer had proposed to
cancel the same with retrospective effect. SCN also did not indicate that any inquiries were made, which revealed that the
petitioner had never existed at his declared place of business. The order was an unreasoned order completely disregarding that the
petitioner had filed an application dated 20-11-2020 for cancellation of his GST Registration and disclosed that he had stopped
carrying on business. Thus, the question of petitioner being available at principal place of business did not arise. The High Court
allowed the petition and directed that cancellation of GST Registration shall be effective from 20-11-2020.

4

Section 29
and Section
30

Cancellation
of Registration
by a Cryptic
Notice and
Equally
Cryptic Order

Ottimo Visuals v.
Commissioner of GST [2023]
153 taxmann.com 545 (Delhi)

The petitioner was not aggrieved by cancellation of his GST Registration; he was aggrieved because the registration had been
cancelled with retrospective effect from 1-7-2017
High Court noted that the show cause notice dated 16-2-2021 did not indicate that the concerned officer had proposed to
cancel the same with retrospective effect. SCN also did not indicate that any inquiries were made, which revealed that the
petitioner had never existed at his declared place of business. The order was an unreasoned order completely disregarding that the
petitioner had filed an application dated 20-11-2020 for cancellation of his GST Registration and disclosed that he had stopped
carrying on business. Thus, the question of petitioner being available at principal place of business did not arise. The High Court
allowed the petition and directed that cancellation of GST Registration shall be effective from 20-11-2020.

S.No

Section

Case Subject

Case

Held

1

Section 73

Service of
Notice through
Portal is valid
service of
Notice

S. K. Eldhose v.
State Tax Officer
[2023] 153
taxmann.com 477
(Kerala)

The petitioner contended that that it was only on account of the peculiar circumstances where it was not aware of the assessment order that it
could not take steps to file the appeal within time.
The High Court held that the assessment order was served on the appellant in a manner prescribed under the statute, namely, an
intimation through the GST portal. The statutory period of limitation for preferring an appeal was three months from the date of communication
of the order, with a further period of one month towards condonation of delay, if any. The appellant, not having availed the alternate remedy
under the statute, cannot feign ignorance of statutory scheme under GST Act, which accords a finality to those orders that have not
been appealed against.

2

Section 129
and Section
130

Section 130
not required to
be preceded
by Section 129

Muhammad
Saleem
Shemsudeen v.
Enforcement
Officer [2023]
153taxmann.com
479 (Kerala)

The main contention was that the respondents were obliged to proceed sequentially through provisions of Section 129 before confiscating the
goods under Section 130 since provisions were dependent upon each other. The said submission did not, however, found favour with the learned
Single Judge who found that provisions of Section 130 were independent and could be invoked without invoking Section 129 of the Act.
The High Court observed that the impugned judgment of the learned Single Judge calls for no interference since it is well settled that
the provisions under Sections 129 and 130 are independent provisions and there is no requirement in law that the proceedings under
Section 130 should be preceded by the proceedings under Section 129.

3

Section 107

Appellate
Authority
relying upon
documents
which were
never supplied
to the
petitioner

Ashok Kumar
Vishwakarma v.
Union of India
[2023] 153
taxmann.com 481
(Bombay)

It was contended that SCN for cancellation of registration was issued without furnishing any documents and merely on a statement that
Petitioner's registration was liable to be cancelled because of "Issue any invoice or bill without supply of goods and/or services in violation of the
provisions of this Act, or the rules made thereunder leading to wrongful availment or utilization of input tax credit or refund of tax."
The High Court observed that no documents were furnished to the Petitioner in support of the sole ground. The Petitioner had sought for an
adjournment that he was not available in the town, however still the proper officer proceeded to cancel the registration that too by erroneously
recording that the Petitioner was heard and the documents and reply submitted by him was examined, when neither the Petitioner was heard
nor any documents were filed by the Petitioner. There is a categorical obligation on the authority to grant a personal hearing as contemplated
below proviso to Sub-section 2 of Section 29. Appellate Authority also proceeded to overlook the ground and in fact has proceeded on a fresh
material, namely, range officer's report in regard to the short paid tax and other materials regard to the cancellation of registration of the suppliers
of Petitioner's. Petitioner was held correct in contending that Appellate Authority relied on materials which were never supplied while
rejecting his appeal.

4

Finance Act
1994
(Notification
no. 41/2012-
ST dated
29.06.2012

Review of
Earlier
Judgement
which held that
Duty free
shops being
outside
customs
frontiers of
India cannot
be saddled
with indirect
tax burden

Commissioner of
CGST and Central
Excise v. Flemingo
Travel Retail Ltd
[2023] 153
taxmann.com 492
(SC)

Basis of Earlier Judgement for which review was sought- The Court affirmed judgment of the CESTAT noting that against a judgment of the
High Court of Judicature at Bombay dated 28 November 2018 in Al Cuisine Pvt Ltd v Union of India, a Special Leave Petition was dismissed by
an order dated 14 Dec 2018 of the Apex Court. From the judgment under review, it was also observed that after recording the view which was
taken by CESTAT, Court adverted to decision of High Court at Bombay in Sandeep Patil and Kerala in CIAL Duty Free & Retail Services Ltd.
Why Union wanted Review- Position as it obtains in relation to goods is distinct from the applicable statutory regime in respect of services.
Sixteen appeals involving a similar issue are pending before this Court arising from orders dated 28 September 2017 and 26 October 2018 of
the CESTAT at its West Zonal Bench in Mumbai. Hence, it was requested to tag this appeal with the appeals pending in this Court was made.
Decisions of Bombay and Kerala High Court relied upon pertained to goods and not to levy of service tax on the renting of immovable property.
What Apex Court said accepting the request to review- Substantial grounds on law were advanced during oral hearing in support of its case
that applicable regime regarding goods stand on a distinct footing from regime applicable to levy of service tax and later, under IGST. Apex Court
also observed that whether objection raised regarding reliance upon judgement of Bombay and Kerala High Cour would make any difference to
ultimate outcome is debatable, and would, therefore, require substantial consideration. Therefore, at this stage, absent such a consideration
in the judgment under review and since issue which was raised would have large consequential ramifications, review was allowed

S.No

Section

Case Subject

Case

Held

1

Section
54

Notification
No. 9/2022
read with
Circular No.
181/13/2022
dt 10th Nov,22
Challenged

Shree Proteins
(P.) Ltd.
v. Union of
India [2023] 153
taxmann.com

Notification No. 9/2022 Dated 18th July 2022 was issued to enlarge scope of N.No. 5/2017, whereby specified HSNs in which petitioner company's
outward supplies were covered were added to the restricted category. It was contended that not only Notification shall have prospective effect but by
way of Circular No. 181/13/2022 GST dated 10th Nov, 2022, it has been incorrectly clarified that restriction imposed by the Notification would be applicable
in respect of all refund application filed on or after 18-7-2022 and would not be applied to the refund application filed before 18-7-2022. Thus, it was
submitted that the said Circular is against the provisions of law contained in Section 54 of the Act, whereby, the period of two years to file an application
for refund is given. It was further submitted that no retrospective effect can be given by way of the said Circular to the Notification. Reliance was placed
on doctrine of legitimate expectation. High Court observed that issue involved in the petition required consideration and notice was issued.

2

Section
129

If neither
consignor/
consignee are
treated as
owner, proper
officer before
levy of penalty
is required to
decide as who
should be
owner of
goods

G M R
Enterprise v.
State of U.P.
[2023] 153
taxmann.com
407 (Allahabad)

Goods were intercepted during transportation within the state of U.P and petitioner contended that such goods were accompanied by tax invoices and
e-way bill, which clearly indicated the ownership of petitioner over the goods in transit. The department nevertheless proceeded to issue notices in the
name of the driver and subsequently orders determining liability of tax have been passed on the premise that the consignee had not accepted the goods
to have been purchased by it. The department, therefore, has treated the goods to be not traceable to a registered dealer.
High Court prima facie was of the opinion that while the goods were in ' transit it accompanied the tax invoice and e-way bill which indicated the goods
to be owned by the petitioner. The order in no manner reflected application of mind on the question as to whether the petitioner was the owner of the
goods in question or not? The circular dated 13-3-2019 clearly stipulated that, in such an eventuality, if the goods are accompanied with the invoices
then either the consignor or the consignee ought to be deemed to be the owner of the goods. Otherwise, proper officer is required to determine as
to who should be declared as owner of the goods. In the facts of the case, such consideration on the question as to ' who is the owner of the
goods was held to be lacking. The department, therefore, was held not to be justified in proceeding to hold the goods not to belong to a
registered dealer without dealing with the question of ownership of such goods in transit and High Court relying on its earlier decision in Writ
Tax No. 178 of 2023 also stated that the question with regard to ownership of the goods shall be determined before levying penalty etc

3

Section
29 and
Section
30

SCN derives
response; "So
what is fraud
in this
transaction?"
liable to be
set aside

Cuthbert
Oceans LLP v.
Superintendent
of CGST [2023]
153
taxmann.com
410 (Delhi)

Concerned Officer issued the SCN proposing to cancel the petitioner's registration for the following reasons: "Section 29(2)(e)-registration obtained
by means of fraud, willful misstatement or suppression of facts". Apart from the aforesaid reason, the impugned show-cause notice did not disclose
any other reason or particulars for proposing the adverse action against the petitioner. The petitioner was called upon to furnish a reply to the impugned
show-cause within a period of seven days from the date of service of impugned SCN; it further directed the petitioner to appear before the respondent.
High Court held that the impugned SCN was bereft of any particulars. The petitioner's response to the impugned show-cause notice (although
sent belatedly) indicates that the petitioner has referred to the transactions carried out by him and had quizzed the respondent; "So what is
fraud in this transaction?". This question resonates with us as well. The impugned show-cause notice was set aside.

4

Section
54

Manual
Refund
Application to
be processed
as Rule 97A
does not bars
it and Circular
cannot
takeaway
plain effect of
Rule

Desai Brothers
Ltd. v. State Of
U.P. [2023] 153
taxmann.com
412 (Allahabad)

Order of the Appellate Authority was in favour of the Appellant and neither, the principal amount Rs. 47,32,040/- has been refunded to the petitioner nor
any interest has been paid thereon. The State respondents were of the view that such refund may have been granted only if the petitioner had made an
application for refund on the online form RFD-01. The petitioner stated that he was effectively prevented from moving the online application owing to
technical glitches that existed on the GSTN portal thus they had moved a physical application to claim the refund within the statutory period of 60 days.
High Court observed that the appeal order dated 18-3-2019 has long attained finality. It clearly contained a recital to refund the amount of Rs.
47,32,040/-Therefore, by way of a right, that amount cannot be retained by the State. Only procedural requirements were required to be
completed for its refund to be made. So long as Rule 97A remains in the Rule book, Circular cannot take away the plain effect of the said Rule
97A. Therefore, Circular could only provide a directory or an optional mode, to process a refund claim. Therefore, the revenue authorities were
obligated in law to deal with that application in terms of Section 54(7) of the Act, within a period of 60 days. Failing that, the revenue further became
exposed to discharge interest liability on the delay in making the refund at the statutory rate from the end of 60 days from 2-6-2019.
Cases Referred- Savista Global Solutions (P.) Ltd. v. Union of India [2021] 132 taxmann.com 144 All.) and Alok Traders v. Commissioner of Commercial
Taxes [2022] 147 taxmann.com 447

S.No

Section

CAse Subject

Case

Held

1

Section
107

Acceptance
of Manual
Appeal

Sakthi Steel Industries
India (P.) Ltd. v. AAC
(State Tax) [2023] 153
taxmann.com 362 (AP)

Petitioner had filed an appeal before appellate authority through official website, but since appellate authority had not been mapped i.e., constituted,
digital mode of filing of appeal was not accepted and numbered. Thereafter, petitioner filed appeal manually and same was pending. Considering
respective submissions and in the interest of justice, High Court directed to consider the appeal and register if it is otherwise in order.

2

Section
74

Deposit of
Tax by
Taxpayer on
two different
dates i.e.
even after
the date of
Search did
not by itself
constitute
SelfAssessment
but should
contain
material on
record of
being
voluntary
and revenue
having
applied its
mind to be
treated as
SelfAssessment

Parsvnath Traders v.
Principal
Commissioner, CGST
[2023] 153
taxmann.com 361
(Punjab & Haryana)

Facts-Petitioner stated that on 05.02.2021, search was conducted under Section 67 and petitioner was forced to deposit a sum of Rs.20 lacs on
the same day. They also deposited an additional amount of Rs.30,70,216/- on 16.02.2021. The respondents did not issue any SCN or order
determining its tax liability. Petitioner made request in writing to the respondents to refund the amount of Rs.50,70,216/- but the same was rejected
by order dated 18.05.2021. Revenue stated that petitioner deposited the amount through DRC-03 and were voluntary payments amounting to
admission. It was denied that the petitioner was forced to deposit the amount of Rs.50.70 lacs.
-Section 74(5) is not a statutory sanction for advance payment-Section 74(5) cannot be considered as a statutory sanction for advance tax
payment, pending final determination because that would be contrary to scheme of assessment as set out under Section 74. Section 74(6) provides
an opportunity for assessee and/or to revenue to ascertain proper amount of tax, interest and penalty and even in cases where there might have
been a shadow of wrong declaration, wrong availment or utilisation of ITC, or short payment of tax, there can be closure of proceedings at that
stage itself on the basis of either 'self-ascertainment' and acceptance of same by revenue or vice-a-versa.
-Deposit of Tax by Taxpayer on two different dates i.e. even after the date of Search did not by itself constitute Self-Assessment but
should contain material on record of being voluntary and revenue having applied its mind to be treated as Self-Assessment- There should
have been a material on record to show that petitioner had in fact, accepted the ascertainment made by it and the revenue had applied its mind
and arrived at the conclusion that 'self-ascertainment' by the assessee was adequate/inadequate. The petitioner on the contrary is shown to have
consistently contested its liability to make payment of the tax. The 'self-ascertainment' which is contemplated under Section 74(5) of the Act, 2017
is in the nature of ' self-assessment' and amounts to a determination by it which is unconditional and not as in the present case when shortly after
depositing the amount Rs.50.70 lacs, the petitioner approached the revenue for refund.
No Crystallised liability on record- Neither any crystalised liability was shown to be existing nor any SCN had been issued either at that time or
even till now and amount of Rs.50.70 lacs was recovered from it during investigation and has been retained by it.
Held-The petitioner shortly after depositing the amount of Rs.50.70 lacs had approached the revenue for refund of the same therefore,
ascertainment as contemplated under Section 74(5) which amounts to an unconditional determination and in the nature of 'self
assessment' is not attracted and hence, the deposit could not be stated to be voluntary deposit by any stretch of imagination,
irrespective of the fact that deposits were made in the form of GST DRC-03.
Cases Referred- M/s Bhumi Associate v. UOI (2021) 46 GSTL 36, Century Metal Recycling Pvt. Ltd.v.UOI, 2009 (234) E.L.T. 234 (P&H), Concepts
Global Impex v. UOI, 2019(365) E.L.T. 32 (P&H), Century Knitters (India) Ltd. v. UOI, 2013 (293) E.L.T. 504 (P&H), William E Connor Associates
& Sourcing Pvt Ltd v. UOI, Diwakar Enterprises Pvt Ltd v. Commissioner of CGST and Others, 2023(98) GST 322, Modern Insecticides Ltd and
Others v. Commissioner, CGST Others

3

Section
74

Refund
sanctioned
earlier can
be reopened
under
Section 74

Ganesh Ores (P.) Ltd.
v. State of Odisha
[2022] 137
taxmann.com 164
(SC

Refund was granted to the Petitioner. Thereafter notice was issued under section 74(1). Petitioner contended that it was open to the department
to file an appeal under section 107(1) but having missed the time limit for doing so, the Department cannot indirectly seek to reopen the refund
already granted pursuant to an adjudication by resorting to section 74. High Court held that there was no limitation placed in the statute that an
order that is otherwise appealable under section 107 cannot be sought to be revisited under section 74(1) and that it does not appear to make any
distinction between refund orders that have been passed without an adjudication and those which have been passed after adjudication. There is
nothing in section 74(1) to indicate that refund granted after adjudication cannot be sought to be reopened. SLP filed before Apex Court against
the judgement of the High Court (Ganesh Ores (P.) Ltd. v. State of Odisha [2022] 137 taxmann.com 163) was dismissed

S.No

Section

Case Subject

Case

Held

1

Section
73

Giving Date
of Hearing
before the
due date of
reply is
incorrect

HT Media Ltd.
v. Union of India [2023] 153
taxmann.com 339 (Delhi)

The petitioner was to submit its reply by 1-9-2022 and was also informed of a personal hearing scheduled on 19-8-2022. High Court was
unable to appreciate the procedure of affording the petitioner an opportunity to be heard prior to the expiry of the time afforded
to him for responding to the impugned show cause notice. It was observed that an opportunity to be heard is not required to be a mere
formality. It is to enable the noticee to canvas its case before the concerned officer. The purpose of eliciting a reply to the show-cause
notice is to enable the noticee to place his stand on record. Thus, it was apposite that noticee be permitted to file a reply prior to being
afforded a hearing. The impugned order was set aside and concerned officer was directed to consider the petitioner's response and pass
a fresh order after affording the petitioner due opportunity to be heard

2

Section
73 and
Section
74

NonAppearance
on the date
of Hearing

Tvl. RIDA Industries v.
Assistant Commissioner
(ST) [2023] 153
taxmann.com 338 (Madras)

The petitioner neither had asked for any personal hearing and made submission on merits, though without furnishing any details. The High
Court observed that the objection that petitioner was not given an opportunity of hearing cannot be countenanced as the
petitioner had given a reply but failed to appear before the respondent in response to notice in DRC-01 issued under Rule 100 of
the Tamil Nadu Goods and Services Taxes Rules, 2017 on 26-3-2021. In view of the above, there was no merit in the present writ
petition. Therefore, writ petition was held to be liable to be dismissed.

3

Section
29 and
Section
30

Petitioner
cannot be
left
remediless
as order of
Cancellation
of
Registration
not
available on
Portal

Ashok Kumar Jha v. Union
of India [2023] 153
taxmann.com 335
(Calcutta)

Order for cancellation of registration was not available on the portal and petitioner could not even file application for revocation against the
same during suspension. Further another downloaded copy from the official portal of the department reflected the status of the case in
question that it is at the stage of show-cause notice of cancellation for registration while the department Counsel produced a downloaded
copy from portal showing that registration of the petitioner had been cancelled. Department Counsel submitted that they have written to
GSTIN to ascertain as to for whose lapse and how it happened that the order of cancellation is not available in the portal.
The High Court observed that order of cancellation of registration of petitioner was neither available on the portal nor revenue was able to
hand over a copy of the same and nor petitioner produced hard copy of the same before the Court also. The Court was of the considered
view that petitioner cannot be let remediless for the fault in the system and petitioner can't be deprived of its right to make
application either cancellation for revocation or by filing appeal. Revenue was directed to hand over hard copy of the order in original
cancelling the petitioner's registration and petitioner can thereafter file application for revocation of the same basis upon aforesaid hard
copy to be supplied

4

Section
83

Cash Credit
Account
cannot be
attached for
recovery of
Liabilities

Anjani Cotton Industries v.
Principal Commissioner of
CGST [2023] 153
taxmann.com 334 (Gujarat)

The High Court stated that on more than one occasion, Court had deprecated the practice of the respondent authorities in seeking
to enforce tax liabilities by provisionally attaching cash credit account. The petitioner was accorded ad-interim relief till the returnable
date of notice.
Cases Referred- Manish Scrap Traders v. Principal Commissioner reported in (2022) GSTL, 482 (Guj), Vinodkumar Murlidhar
Chechani v. State of Gujarat reported in 2021 (124), taxmann.com, 272 (Guj).

5

Section
169

Duty of
taxpayer to
verify Portal
for receipt of
notice and
order

Koduvayur Constructions
v. Assistant Commissioner
[2023] 153 taxmann.com
333 (Kerala)

The petitioner had been served with order dated 14-10-2022 on the GST portal, calling him to pay an amount of Rs. 19,22,566/-. It was
contended that there was no effective service of notice on petitioner by the respondents. The High Court observed that assessment
order was made available on the common portal and thus contention of the petitioner was untenable in view of the alternative
modes of service provided under Sec.169 (1) of the CGST Act and it was bounden duty of the petitioner to have verified its
common portal that is made available as per the provision

S.No

Section

Case Subject

Case

Held

1

Section
73

Principle of
Natural
Justice

Dr. Ambedakar
Enterprisese v.
Union of India
[2023] 153
taxmann.com
323
(Allahabad)

SCN was issued on 10-6-2022, date for personal hearing was fixed on 24-6-2022 whereas date for final reply was fixed thereafter on 9-7-2022. The
petitioner could not appear on the date fixed for personal hearing. The order impugned was passed about five months thereafter on 30-11-2022.
The High Court observed that Principle of natural justice was breached. The adjudicating authority ought to have fixed reasonable date for filing reply and
for personal hearing. The petitioner may have been at fault in not filing reply on the date fixed and having not filed any application thereafter. Yet, the
adjudicating authority chose not to pass any order and did not fix any other date for hearing in the matter for a long period of five months. However, there
was fault on the part of the petitioner too in neither filing appeal within limitation nor approaching the Court within reasonable time. The writ petition was
disposed that in case petitioner deposits a sum of Rs. 75,000/- before adjudicating authority, the impugned order shall stand set aside.

2

Section
107

Amount
deposited
under
Section
73(5) to be
considered
as predeposit
against
appeal

Vinod Metal v.
State of
Maharashtra
[2023] 153
taxmann.com
322 (Bombay)

Petitioner intended to filed appeal under section 107 of the CGST Act and contended that the amount as deposited by the Petitioner under sub-section (5)
of Section 73 of the CGST Act needs to be accepted towards fulfillment of such pre-deposit, as the said amount is already made, it cannot be contended
by the Revenue, that such deposit is not available, when it comes to the compliance of sub-section (6) of Section 107 of the CGST Act.
The High Court observed that on a holistic reading of Section 73, an amount deposited under sub-section (5) Section 73 is not an amount, which is deposited
in pursuance of any demand or any assessment order. It is a voluntary deposit and which is subject to all contentions of assessee. Also such deposit would
be accounted in the event of any the liability of the assessee to pay tax, and would be integral to the assessment. Thus, when it comes to the compliance
of mandatory payment of the tax, being a condition precedent for filing of appeal, principle as laid down in Supreme Court in VVF (India) Ltd. would become
applicable considering that the provisions of the CGST Act on pre-deposit are not too different from provisions of the MVAT Act, which fell for consideration
of the Supreme Court. For the above reasons, High Court held that voluntary deposit as made under protest under the provisions of Section 73(5),
cannot be excluded from consideration for the purpose of compliance as mandated by sub-section (6) of Section 107 of the CGST Act.
Case Referred- VVF (India) Ltd. v. State of Maharashtra (2023) 4 Centax 421/2023 (72) G.S.T.L. 444 (SC)

3

Section
107

Binding
Precedent
of Orders
passed by
Appellate
Authority
over
Assessing
Authority

Jacobs
Solutions India
(P.) Ltd. v.
Union of India
[2023] 153
taxmann.com
321 (Bombay)

In pursuance of order dated 11 October 2022 passed in an appeal, petitioner filed a refund claim on 29 November 2022. On such refund claim, Assistant
Commissioner of CGST & CX (Central Excise) issued a SCN dated 28 December 2022, calling upon the petitioner to show cause as to why refund claim
ought not to be rejected on the ground of non disclosure of invoice details of FIRCs. The Assistant Commissioner by the impugned order dated 27 January
2023 rejected the petitioner's refund claim whereby he confirmed the show cause notice. It is against such order the petitioner filed petition before the Court.
The High Court observed that when the entire fact finding exercise was subjected to the scrutiny in an appeal resulting in the appeal being allowed, then
only remedy for the department against the appeal order was to seek review. It was not open to Assistant Commissioner to pass the impugned order which
amounted to sitting in appeal over the order passed by the Additional Commissioner of Appeals. The Assistant Commissioner could not have passed
the impugned order, of the nature he has passed as he was certainly bound by the orders passed by the Additional Commissioner (Appeals).
Cases Referred-Globus Petroadditions (P.) Ltd. v. UOI[2022]140 taxmann.com 569(Bom),UOI v. Kamlakshi Finance Corpn. Ltd.1992taxmann.com16(SC)

4

Section
70

Recording
of
Statement
in
presence
of
Advocate

Prakash Kumar
Rameshbhai
Patel v. State of
Maharashtra
[2023] 153
taxmann.com
273 (Bombay)

The petitioner prayed for the relief that petitioner's statement be recorded in the presence of his Advocate i.e. at a visible but not audible distance, during
his interrogation. The revenue had no objection to the presence of the petitioner's Advocate, at the time of recording of the petitioner's statement, provided
that he is at a visible distance, but not at an audible distance.
The High Court allowed the petition and, as such, permit the petitioner's Advocate to remain present at a visible, but not at an audible distance
at the time of recording of the petitioner's statement

S.No

Section

Case Subject

Case

Held

1

Section
107

Rejection
of Appeal
on
technical
ground

Rama Shanker
Modi v. A C,
CGST & CE
[2023] 153
taxmann.com
326 (Calcutta)

The petitioner filed the appeal electronically within time but the appeal of the petitioner was dismissed on the technical ground of filing certified copy of the
order against which appeal was filed as beyond time.
The High Court observed that the appeal of the petitioner was dismissed only on the technical ground without going into the merit and thus the order was
set aside and the matter was remanded back to the appellate authority concerned to accept the certified copy filed by the petitioner beyond time and
consider and dispose of the appeal in question in accordance with law

2

Section
129 and
Section
130

Buyer to
establish
his own
credentials
and not
that of the
seller

Arhaan
Ferrous And
Non-Ferrous
Solutions (P.)
Ltd. v. Deputy
Assistant
Commissioner1(ST) [2023]
153
taxmann.com
325 (Andhra
Pradesh

Facts of the Case-The proper officer intercepted the lorries on 12-6-2023 which were found carrying iron scrap covered by bill and e-way bills. They
revealed that the consignor without having place of business at Vijayawada, transported the goods. According to the proper officer, the enquiry conducted
by Joint Commissioner (ST), Kurnool, revealed that the consignor was not doing business at the given address at Kurnool and there was no such person
and therefore, his GST registration was suspended w.e.f. 13-6-2023 and enquiry was initiated against consignor by issuing notice of confiscation in Form
GST MOV-10 under section 130 of the CGST/APGST Act, 2017. The contention of the Revenue was that since the existence and business activities of the
consignor were highly doubtful, confiscation proceedings U/s 130 of the CGST/APGST Act, 2017 can be launched directly against consignor without
reference to the petitioners and as the petitioner claims to be the purchaser from the consignor, he has to establish that he is a bonafide purchaser from
consignor for valuable consideration by paying the due tax without knowing the credentials of consignor by participating in the enquiry proceedings initiated
against the consignor.
Question before the Court-Whether Proper Officer can confiscate the goods of petitioner without initiating any proceedings against him U/s 129
but initiating proceedings U/s 130 of CGST/APGST Act against the consignor on the ground of dubious credentials of consignor.
Observation- Proper Officer may initiate proceedings against consignor U/s 130 in view of his absence in the given address and not holding any business
premises at Vijayawada, however, he cannot confiscate goods of petitioner merely on the ground that he happens to purchase goods from consignor. Even
assuming petitioner partakes in the enquiry proceedings against the consignor, his responsibility will be limited to the extent of establishing
a) That he bonafidely purchased goods from the consignor for consideration by verifying GST registration of consignor available on official web portal.
b) That was not aware of the credentials of the consignor.
c) Mode of payment of consideration.
d) Mode of receiving of goods from the consignor through authenticated documents.
Petitioner cannot be
a) Expected to speak about the business activities of the consignor and
b) Expected to speak about whether consignor obtained GST registration by producing fake documents.
Held- In essence, petitioner has to establish their own credentials but not of the consignor. In that view, the proper officer was held incorrect in roping
the petitioners in the proceedings initiated against the consignor without initiating independent proceedings U/s 129 of CGST/APGST Act against
the petitioners. As the petitioner claimed to have purchased goods from the consignor whose physical existence in the given address was highly doubtful
as per the enquiry conducted by the Joint Commissioner (ST), Kurnool, the petitioner was thus held to owe a responsibility to prove the genuineness of the
transactions between him and the consignor. Therefore, the proper officer was held entitled to initiate proceedings U/s 129 of CGST/APGST Act
against the petitioners and conduct enquiry by giving opportunity to the petitioners to establish their case. The writ petitions were accordingly
disposed of giving liberty to the proper officer to initiate proceedings against the petitioner’s U/s 129 of CGST/APGST Act, 2017 and conduct enquiry by
giving an opportunity of hearing to the petitioners and pass appropriate orders in accordance with governing law and rules.
Cases Referred- Rajeev Traders v. Union of India [2022] 142 taxmann.com 420 (Kar.), Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112
taxmann.com 370 (Guj.)/2020(33) G.S.T.L 513 (Guj.)