Part-57-One Pager Snapshot to the Latest Cases

-Exercise of Re-course under Rule 159(5) before exercising the writ option
-Can Claim of ITC in GSTR-3B since Form in ITC-02 was not live on the portal be justified
-Cryptic SCN for cancellation of Registration

57.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
83

Exercise of
Re-course
under Rule
159(5)
before
exercising
the writ
option

Smt. Lalita v.
Central Goods
And Service
Tax [2023]
153
taxmann.com
171
(Allahabad)

An investigation was initiated for availing and passing on wrong Input Tax Credit by creating various firms without supply of goods. During the course of
investigation an order dated 2-4-2022 was passed attaching the Bank account of the petitioner. Since attachment order under section 83 ceases to have
effect after expiry of one year as contemplated under section 83 (2) of the CGST Act, 2017 petitioner moved application requesting for the de-attachment
of the Bank account on 3-4-2023. Petitioner then sent another letter on 18-4-2023 and responding to the letter, the authority passed impugned order on
21-4-2023 attaching the Bank account of the petitioner. It was also submitted that impugned order dated 21-4-2023 was invalid having been issued
without DIN number in violation of Circular dated 5-11-20219 and 23-12-2019. It was further contended that order impugned proceeds on the premise
that proceeding under Section 122 of the Act have been launched against the petitioner through no show cause notice in form DRC-01 under Rule 142
has been issued so for.
The High Court observed that the petitioner approached the Court without availing the remedy available under Rule 159(5) of CGST Rules, 2017. Further
the Bank account of the petitioner remained under attachment since long once under order dated 2-4-2022 and thereafter under the order dated 21-4-
2023 but partially the petitioner herself was held to be responsible for not taking recourse to Rule 159 (5) of the Rules early. The High Court thus, directed
the petitioner to approach the authority under Rule 159 (5) by filing objections

2

Section
18

Can Claim
of ITC in
GSTR-3B
since Form
in ITC-02
was not live
on the
portal be
justified

Tikona Infinet
(P.) Ltd. v.
State of U.P.
[2023] 153
taxmann.com
170
(Allahabad)

The petitioner entered into a Business Transfer Agreement on 17-8-2017 with another Company i.e. M/s Tikona Digital Network Pvt. Ltd. under which
the business was transferred to the petitioner. M/s Tikona Digital Network (TDA) had accumulated ITC balance of more than Rs. 3,1313,68,997/- which
was unutilized. The petitioner attempted to transfer ITC as per the procedure prescribed under Rule 41 of the CGST Rules, 2017, however functionality
for filing Form ITC-02 was not available on the common portal. The non availability was communicated to the jurisdictional Assessing Authority. Faced
with serious working capital issues, the petitioner manually accepted and availed the ITC of Rs. 3,13,68,997/-. After a lapse of five years, the petitioner
was served with a show cause notice dated 28-2-2023 requiring the petitioner to serve the differential ITC of Rs. 2,88,35,905.60/- along with interest
and penalty. The total ITC available in Form GSTR-2A is Rs. 2,22,24,921.08/- whereas petitioner availed the ITC of Rs. 5,10,60,826.68/-. The petitioner
submitted the reply but impugned order creating the demand was passed.
The High Court found that the petitioner has been non suited on the ground that Form ITC-02 for transfer of input tax credit was not available
on the GST Portal which was in nascent stage during the initial months after its implementation on 1-7-2017 and it was incumbent upon the
petitioner to have raised a proper grievance on the GST portal help-desk and ought to have waited for the relevant Form to go live on the GST
portal instead of making illegal adjustment by use of the Form GSTR-3B of the transferor and the transferee company and mere shortage of
working capital cannot be an excuse to bypass the legal procedure laid down under the law. Further the high court was of the view that the stand
of the Respondent No. 2, for rejecting the claim of the petitioner in the wake of the admitted fact that the GST common portal was not online cannot be
justified. Therefore, the order dated 17-4-2023 was set aside with liberty to the Respondent No. 2 to pass fresh order taking into consideration
the objections of the petitioner and also affording it opportunity of hearing, strictly in accordance with law

3

Section
29 and
30

Cryptic SCN
for
cancellation
of
Registration

Bhati
Enterprise v.
Union of India
[2023] 153
taxmann.com
167 (Gujarat)

SCN was issued by the department on the ground that the registration was obtained by means of fraud, wilfull misstatement or suppression of facts. The
petitioner contended that the impugned SCN violated the principles of natural justice inasmuch as the show-cause notice was vague and cryptic and did
not state the exact case against the petitioner firm that how the petitioner committed fraud, wilful misstatement or suppression of facts; while obtaining
the registration as no documents were supplied to the petitioner alongwith the said show-cause notice so as to enable the petitioner to file a reply.
The High Court quashed the impugned SCN being without reasons and cryptic with a liberty to issue a fresh SCN.
Cases Referred-Sarvoday Impex v. Union of India rendered a decision on 07.06.2023 in Special Civil Application No. 903 of 2023

Part-56-One Pager Snapshot to the Latest Cases

-Intimation in DRC-05 is an appealable order
-Failure to do through a statutory remedy cannot be permitted to be done through a writ petition
-Refund allowed for Tax Excess Paid @ 18% instead of 0.1%
-Transitional Credit denied as Return for 30.06.2017 was having Ni Balance

56.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
107

Intimation in
DRC-05 is an
appealable
order

Savita Oil
Technologies Ltd
v. Union of India
[2023] 152
taxmann.com 577

The petitioners had deposited the disputed tax under protest and were issued an intimation in Form GST DRC-05. The petitioner approached
to contend that intimation issued in Form GST DRC-05 by the adjudicating authority itself is an appealable order as the CGST Act would clearly
provide. It is therefore, contended that as the portal is not allowing filing of appeal, it will render the remedy of an appeal illusory.
The High Court observed that petitioners have a legitimate right to file an appeal being aggrieved by intimations issued in Form DRC-05.
Merely because electronic portal does not make a provision for filing of an appeal against an intimation issued in Form DRC-05, the petitioners
cannot be faulted and for such technical reason, it cannot be countenanced that a statutory right of appeal available to the petitioners is
rendered otiose. In the above circumstances, the high court held that till an appropriate provision is made for acceptance of such
appeal electronically, the filing of such appeal is required to be permitted by the manual method.

2

Section
107

Failure to do
through a
statutory
remedy
cannot be
permitted to
be done
through a writ
petition

Marvel
Associates
v. State Tax
officer [2023] 152
taxmann.com 576
(Kera

The petitioner's grievance was that, as time period prescribed under Section 107 (4) of the CSGT Act to challenge the impugned orders by
way of a statutory appeal had lapsed, the petitioner was left remediless. Therefore, the present writ petition was filed.
The High Court observed that without taking recourse to the above statutory remedies, the petitioner assailed the impugned orders in the writ
petition, that too after a year. What the petitioner had failed to do directly through a statutory remedy cannot be permitted to be done indirectly
through a writ petition, that too at its own sweet will and pleasure. A Constitutional Court is not an open Forum to be approached at the whims
and caprice of a litigant. The Court’s extraordinary power can be exercised sparingly and in exceptional cases. The High Court did not find
any such circumstances in the present case to entertain the writ petition under Article 226 of the Constitution of India. The writ
petition was held to be groundless and was thus, dismissed.

3

Section
54

Refund
allowed for
Tax Excess
Paid @ 18%
instead of
0.1%

Tagros
Chemicals India
(P.) Ltd.
v. Union of India
[2023] 152
taxmann.com 570
(Gujarat)

The petitioner had supplied goods at the concessional rate of IGST at the rate of 0.1% in terms of Notification No.41/2017 - Integrated Tax
(Rate) dated 23.10.2017. The petitioner thereafter supplied goods to the buyer on payment of full duty (under an error) of IGST at the rate of
18% instead of concessional rate of 0.1%. Thereafter, the petitioner issued credit note dated 16.03.2020 for the excess amount of tax to the
buyer. The details of credit note were duly mentioned in GSTR-1 return for the month of March, 2020, however, the petitioner could not reduce
the turnover and GST liability as there were no outward supplies during the said month and subsequent month. The refund application was
however rejected without assigning any reason.
The High Court relied upon the judgement of Hon’ble Apex Court in the matter of Bonanzo Engineering & Chemical Pvt. Ltd. v.
Commissioner of Central Excise reported in 2012(4) SCC 771 (Principle- Assessee paid duties on the goods which are exempted from
payment does not mean that the goods would become goods liable for the duty under the Act) and Share Medical Care v. Union of India
reported in 2007(4) SCC, 573 (Principle- even if an applicant does not claim benefit under a particular notification at the initial stage, he is
not debarred, prohibited or estopped from claiming such benefit at a later stage). The refund was thus allowed and the impugned order
set aside

4

Section
140

Transitional
Credit denied
as Return for
30.06.2017
was having Ni
Balance

Tvl. Devesh
Spices v.
Assistant
Commissioner
(CT)/(ST) [2023]
152 taxmann.com
553 (Madras)

The petitioner carried forward credit of Rs.1,36,563/- through TRAN-1. However, she did not have any excess credit for the year 2017.
The High Court observed that on perusal of the relevant record for the month ending June, 2017, the entry under the head "excess input tax
credit" at column 11 was shown as '0.00'. Thus, contention of the petitioner that she had a credit limit was held to be incorrect and thus petitioner
was held no to be entitled for any relief.

GST V/s Pre-GST Regime-Interpretation of previous regime by Highest Court how far applicable-

Where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word in a similar context, it must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it.

55.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case

Held

1

P. Vajravelu Mudaliar
vs Special Deputy
Collector, Madras
Equivalent citations:
1965 AIR 1017, 1965
SCR (1) 614

The fact that Parliament used the same expressions, namely, "compensation" and "principles" as were found in Art. 31 before the Amendment is a clear indication that it
accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee's case(1).
Hon’ble Apex Court further observed that in Craies on Statute Law, 6th Edn., at p. 167, the relevant principle of construction is stated thus:
“There is a well-known principle of construction, ‘that where the legislature used in an Act a legal term which has received judicial interpretation, it must be assumed that
the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears.”
The said two expressions in Art. 31 (2), before the Constitution (Fourth Amendment) Act, have received an authoritative interpretation by the highest court in
the land and it must be presume that Parliament did not intend to depart from the meaning given by this Court to the said expressions

2

Banarasi Devi vs
Income-Tax Officer,
Calcutta 1964 AIR 1742

The relevant rule of construction is clearly stated by Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd.(2) thus:
"It has long been a well established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a
clear judicial interpretation the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the
word or phrase is interpreted according to the meaning that has previously assigned to it."

3

M/S. Bangalore Club
vs The Commissioner
Of Wealth Tax on 8
September, 2020

It is well-settled that when Parliament used the expression “association of persons” in Section 21AA of the Wealth Tax Act, it must be presumed to know that this
expression had been the subject matter of comment in a cognate allied legislation, namely, the Income Tax Act, as referring to persons banding together for a common
purpose, being a business purpose in the context of a taxation statute in order to earn income or profits. This presumption is felicitously referred to in the following
judgments.

4

Shree Bhagwati Steel
Rolling Mills v.
CCE (2016) 3 SCC 643,

It is settled law that Parliament is presumed to know the law when it enacts a particular piece of legislation. The Prevention of Corruption Act was passed in the year
1988, that is long after 1969 when the Constitution Bench decision in Rayala Corpn. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] had
been delivered. It is, therefore, presumed that Parliament enacted Section 31 knowing that the decision in Rayala Corpn. [Rayala Corpn. (P) Ltd. v. Director of
Enforcement, (1969) 2 SCC 412] had stated that an omission would not amount to a repeal and it is for this reason that Section 31 was enacted. This again
does not take us further as this statement of the law in Rayala Corpn. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] is no longer the law declared
by the Supreme Court after the decision in Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333]. This reason therefore again cannot avail the appellant.

5

Sakal Deep Sahai
Srivastava vs Union Of
India & Anr 1974 AIR
338, 1974 SCR (2) 485

But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not advisable to review the authorities of this
Court, after such a lapse of time when, despite the view taken by this Court that Article 102 of the Limitation Act of 1908 was applicable to such cases, the Limitation
Act of 1963 had been passed repeating the law, contained in Articles 102 and 120 of the Limitation Act of 1908, in identical terms without any modification. The Legislature
must be presumed to be cognizant of the view of, this Court that a claim of the nature before us, for arrears of salary, falls within the purview of Article 102 of
the Limitation Act of 1908. If Parliament, which is deemed to be aware of the declaration of law by this Court, did not alter the law, it must be deemed to have
accepted the interpretation of this Court even though the correctness of it may be open to doubt. If doubts had arisen, it was for the Legislature to clear these
doubts. When the Legislature has not done so, despite the repeal of the Limitation Act of 1908, and the enactment of the Limitation Act of 1963 after the
decisions of this Court, embodying a possible questionable view, we think it is expedient and proper to over-rule the submission made on behalf of the
appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be re-examined by a larger Bench

6

The Panchayat Board.
vs The Western India
Matches Company
(1939) 1 MLJ 588 (Mad)

Viscount Buckmaster went on to quote the words of James, L.J., in Ex parte Campbell (1870) 5 Ch. 703, where he observed:
Where once certain words in an Act of Parliament have received a judicial construction in one of the superior Courts, and the Legislature has repeated them
without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of
competent jurisdiction has given to them

A brief compilation of the cases on the subject which could be help ful in analysis of the terms in GST V/s Pre-GST Regime Statutes

“Can use of same language or changed language in later statute as was used in earlier statute in pari materia be suggestive of intention of Legislature-

54.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Case

Held

1

R. V Oxford Shire
County Council (1999) 3
All ER 385, p. 390 (a,B)
(HL)

The language is plainly derived from the judicial pronouncements and earlier legislation on acquisition of rights by prescription. To put the words in their
context it is therefore necessary to say something about the historical background

2

Lalu Prasad Yadav &
Anr. Vs. State of Bihar &
Anr. (2010) 5 SCC 1

38. In Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603] Venkatarama Ayyar, J. observed: (AIR p. 749, para 197) "197. ... It is a
well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be
interpreted in the sense which had been judicially put on them under the repealed Act, because the legislature is presumed to be acquainted with the construction
which the courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the court
as correctly reflecting the legislative mind."
39. However, if the later statute does not use the same language as in the earlier one, the alteration must be taken to have been made deliberately. In his classic
work, Principles of Statutory Interpretation by G.P. Singh, 12th Edn., 2010 at p. 310, the following statement of law has been made:
"Just as use of same language in a later statute as was used in an earlier one in pari materia is suggestive of the intention of the legislature that the
language so used in the later statute is used in the same sense as in the earlier one, change of language in a later statute in pari materia is suggestive
that change of interpretation is intended." The learned author also refers to the observations of Lord MacMillan in D.R. Fraser & Co. Ltd. v. Minister of National
Revenue [AIR 1949 PC 120] : "When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately

3

State Of Madhya
Pradesh And Anr vs
G.S. Dall And Flour Mills
on 19 September, 1990
Equivalent citations:
1991 AIR 772, 1990 SCR
Supl. (1) 590

In the first place, the earlier schemes specifically provided that "traditional industries" were out- side their purview. The language of the notification, which is a piece
of subsequent legislation, is silent about this. This is itself indicative of a legislative intent to widen the scope of relief and grant exemption to traditional industries as
well: vide, G.P. Singh: Interpretation of Statutes, 4th Edition, pp. 767-8. The omission to specifically exclude "traditional industries" as was done in the earlier
schemes the notification gains added significance in view of S. 12 which specifically requires that all conditions and restrictions governing an exemption
should be specified in the notification.

4

Commissioner Of
Central Excise vs
Dalmia Cement (Bharat)
Ltd (Del) Equivalent
citations: 126 (2006)
DLT 597

19. In our opinion, Heydon's mischief rule is applicable to the present case. Under that we have to see the mischief in the old law and find out the mischief which the
legislature wanted to remove. Obviously, the mischief was that under the unamended Section 11B the principle of unjust enrichment was not applicable and hence
an assessed was entitled to refund even if it had passed on the burden to the consumers.
20. In D.R. Fraser & Co. Ltd v. Minister of National Revenue AIR 1949 PC 120 (p.123) Lord Macmillan observed:- "When an amending Act alters the language of
the principal statute, the alteration must be taken to have been made deliberately".
21. Thus, where the word 'reduce' has been substituted by the word 'modify' it was held that the word 'modify' has a wider connotation so as to include
not only reduction but also other kinds of alteration including enhancement, vide Page 0010Western India Theatres Ltd v. Municipal Corporation, Poona, ;
State of U.P v. Malik Zarid Khalid AIR 1988 SC 136 (138); and State of Madhya Pradesh v. G.S. Dall and Flour Mills, .

5

R.V. Price reported at
(1871) LR 6 QB 411

"I think that when the legislature, in legislating in pari materia and substituting certain provision in that Act for those which existed in the earlier statute,
has entirely changed the language of the enactment, it must be taken to have done so with some intention and motive."

Part-53-One Pager Snapshot to the Latest Cases

-Rejection of refund on account of availment of Higher Drawback
-Opportunity of being heard is different from opportunity of furnishing Reply
-CC account cannot be attached
-Non-Extension of Eway bill day of expiry being Saturday

53.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
54

Rejection of
refund on
account of
availment of
Higher
Drawback

Sunlight Cable
Industries v.
Commissioner of
Customs [2023] 152
taxmann.com 247
(Bombay)

The Petitioner had availed drawback wherein both higher and lower draw back rates were same and department rejected the refund for the
month of August 2017 stating that Petitioner had availed a higher duty drawback on its exports under the Export Invoice and corresponding
Shipping Bill.
The High Court observed that rationale for not allowing the refund of IGST for those exporters, who claimed higher duty drawback was that
the higher duty drawback reflects the elements of Customs, Central Excise and Service Tax taken together and since higher duty drawback
was already being availed than granting the IGST refund would amount to double benefit as the Central Excise and Service Tax had been
subsumed in the GST. Thus, drawback rates being the same, it represented only the Customs elements, which did not get
subsumed in the GST and thus, the writ-applicant could be said to have availed double benefit i.e. of the IGST refund and higher
duty drawback.
Cases Referred- Amit Cotton Industries v. Principal Commissioner of Customs 2019 (29) G.S.T.L. 200 (Guj.), Gujarat Nippon International
Pvt. Ltd. v. Union of India 2022 (64) G.S.T.L. 45 (Bom.), Kishan Lal Kuria Mal International v. Union of India [2023] 95 GST 177 (Delhi)

2

Section
73

Opportunity of
being heard is
different from
opportunity of
furnishing the
Reply

Preca Solutions India
(P.) Ltd. v. Assistant
Commissioner [2023]
152 taxmann.com 269
(Andhra Pradesh)

The petitioner had sought an opportunity of being heard personally but the order was passed without giving any such hearing. It was
contended by the department that a show-cause notice was issued and the petitioner had submitted an explanation in response to the
same therefore, it cannot be construed by any stretch of imagination that the impugned order was in violation of principles of natural justice
and in contravention of the mandatory requirements of law.
The High Court observed that petition disclosed in unequivocal terms that the petitioner made a request to the respondents to
afford an opportunity of personal hearing. Therefore, it was held that impugned order passed was not only in violation of
mandatory provisions under sub-section (4) of Section 75 of the Act, 2017, but also in violation of the principles of natural justice.
Therefore, the impugned order was liable to be set aside.

3

Section
83

Cash Credit
account cannot
be
provisionally
attached

J.L. Enterprises v.
Assistant
Commissioner [2023]
152 taxmann.com 278
(Calcutta)

The petitioner had contended that the cash credit account of the petitioner was provisionally attached by the officer. This present appeal
was an intra-Court appeal directed against the order dated 25.05.2023 passed in WPA 12132 of 2023. By the said order the writ petition
was disposed of by relegating the appellant to resort to the remedy provided under Section 159(5) of Central Goods and Services Tax
Rules 2017 (for short "the Rules").
The High Court observed that it goes without saying that the Court has accepted the legal position which has been settled by various
decisions which have been referred to in the impugned order. If such be the case, no useful purpose will be served by relegating the
petitioner to avail the remedy under sub-Section 5 of Section 159 of the Rules. Therefore, the writ Court ought to have allowed the writ
petition in its entirety instead of relegating the appellant to a remedy which is inapplicable to the cases where there is an order of provision
attachment of a cash credit account. Therefore, the appeal was allowed and the order passed by the learned writ Court was set aside
insofar as it directed the appellant to avail the remedy under Sub-Section 5 of Section 159 of the Rules and in other respect where
the learned writ Court had rightly accepted the legal position stood confirmed.

4

Section
129

Non-Extension
of Eway bill
being day of
expiry being
Saturday.

Sunil Yadav v. Assistant
Commissioner [2023]
152 taxmann.com 270
(Calcutta

The petitioner's vehicle, bearing registration number WB33C6286 which was carrying goods covered by e-way bills was intercepted on 4th
February, 2023. The petitioner also said that under the applicable rules, the petitioner was entitled to revalidate the e-way bill within 8 hours.
from the time it lapsed and as such the time of interception was within the period. The petitioner contended that 4th February, 2023, being
Saturday and the petitioner even if had made an application for revalidation of e-way bill, the same in all likelihood would not have been
revalidated on the same date, being Saturday.
The High Court relied upon the judgement in the matter of Pushpa Devi Jain v. Assistant Commissioner of Revenue, Bureau of
Investigation, North Bengal Headquarters & Ors.) and set aside the detention order.

Part-52-One Pager Snapshot to the Latest Cases

-Condonation of appeal filed beyond the time period

-Recovery of the demand after expiry of the Normal period for filing of Appeal but before extended period for which condonation is allowed

-Levy of Penalty dropped for failure to extend validity of Eway Bill

-No Date, Time and Venue of personal hearing mentioned and for columns 3,4&5 of Date, Time & Venue, NA being mentioned in SCN

52.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
107

Condonation of
appeal filed
beyond the
time period

Penuel Nexus (P.) Ltd.
v. Additional
Commissioner,
Headquarters (Appeals)
[2023]152 taxmann.com
208 (Kerala)

The matter was related to cancellation of registration and the issue before the High court was about condonation of time period for filing an
appeal be filed beyond the time period prescribed under Section 107 (4) of CGST Act, 2017.
The High Court while dismissing the petition by holding it time barred held that CGST Act is a special statute and a self-contained code by
itself. It is trite, that the Limitation Act will apply only if it is extended to the special statute. It is also rudimentary that the provisions of a
fiscal statute have to be strictly construed and interpreted

2

Section
78 and
Section
107

Recovery of
the demand
after expiry of
the Normal
period for filing
of Appeal but
before
extended
period for
which
condonation is
allowed

Stallion Energy (P.) Ltd.
v. Union of India [2023]
152 taxmann.com 211
(Gujarat)

The adjudication order came to be passed on 02.03.2022 and petitioner was directed to make the payment of total amount of Rs.56,14,388/-
. Thereafter order of provisional attachment of property under Section 83 came to be passed on 16.06.2022 and out of the total amount of
Rs.56,14,388, Rs.46 lakhs came to be withdrawn by the respondents from the bank account of petitioner maintained with HDFC Bank. The
petitioner preferred an appeal on 04.07.2022 under Section 107 of the Act before the Appellate Authority and as there was delay in preferring
the said appeal and therefore petitioner had filed separate application for condonation of delay. It was also stated that as per the provisions
contained in Section 107 of the Act, the petitioner was required to pre-deposit 10% of the amount of tax before the Appellate Authority but
the respondents had already withdrew an amount of Rs.46 lakh from the account of the petitioner maintained with HDFC Bank. The
petitioner, therefore, urged that respondents be directed to refund the remaining amount i.e. Rs.42,44,664/-.
The High Court while observing that the condonation application is till pending held that the contention of the petitioner was
misconceived in view of the provisions contained in Section 73(9) read with Sections 78 and 107 of the Act and If appeal filed by
the petitioner is allowed by the Appellate Authority, it is always open for the petitioner to make such request before the Appellate
Authority that direction be issued to the respondents to refund the amount.

3

Section
129

Levy of Penalty
dropped for
failure to
extend validity
of Eway Bill

Pushpa Devi Jain v.
Assistant
Commissioner of
Revenue [2023] 152
taxmann.com 239
(Calcutta)

The goods were detained as e-way bill had expired at 11:59 hours on 22nd April, 2022 and it had to be revalidated by 8 a.m. on 23rd April,
2022. However, said date was a Saturday and the vehicle was intercepted at 8.52 a.m. There was no other allegation against the petitioner.
The High Court considered the peculiar facts of the case and observed that there was no lack of bona fide on the part of the appellant to
state that there was wilful misconduct committed by the appellant while transporting the goods. There was every possibility that even if
an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill,
in all probabilities, would not have been revalidated within the eight hours period. Therefore, the appeal was allowed and the order
was set aside by holding that considering the facts and circumstances of the case, the authority could not have imposed penalty on the
appellant

4

Section
73

No Date, Time
and Venue of
personal
hearing
mentioned and
for columns
3,4&5 of Date,
Time & Venue,
NA being
mentio

Agarwal Wheels (P.)
Ltd.
v. State of Madhya
Pradesh [2023] 152
taxmann.com 243
(Madhya Pradesh)

SCN was issued making mention about personal hearing to the effect that "you may appear before the undersigned for personal hearing
either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below",
but no date, time and venue for personal hearing was shown in the notice.
The High Court observed that SCN issued itself shows that before passing final order dated 24.08.2022, the intention of the respondents
was to give personal hearing to the petitioner, but in the table given, captioned as "Details of personal hearing etc.", no Date,
Time and Venue of personal hearing was shown and in front of columns 3,4&5 of Date, Time and Venue, NA was mentioned,
which is sufficient to infer that no personal hearing was given to the petitioner before passing the impugned order dated
24.08.2022. The impugned order was held to be non-sustainable and was quashed and the matter was remitted back for passing order
afresh.
Case Referred- Bharat Mint & Allied Chemicals v. Commissioner of Commercial Tax, 2022 (59) G.S.T.L. 394 (All.)

Part-51-One Pager Snapshot to the Latest Cases

-Opportunity of being heard to be given before cancellation of registration
-Ex-Parte Assessment order set aside as the petitioner had valid ground for seeking adjournment
-Opportunity of being heard to be provided in pursuance of provision of Section 75(4)
-Onus is on the Revenue to prove that the amount collected voluntarily during search was not in violation of Article 265 of Constitution of India

51.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

Opportunity of
being heard to
be given
before
cancellation of
registration

VIP Chem
Traders v.
Union of India
[2023] 152
taxmann.com
159 (Gujarat)

The petitioner received notice dated 06.12.2022 inter alia stating that registration of the petitioner was liable to be cancelled due to "returns furnished
by you under section 39 of the Central Goods and Services Tax Act, 2017". The petitioner was called upon to file reply within 30 days.
High Court set aside the order by stating that there is no gainsaying that the notice since was issued for cancelling the GST registration of the
petitioner, if the final order against the petitioner was to be adverse, it will operate to the detriment and prejudice to the petitioner. Therefore, the
process of adjudication post issuance of show-cause notice would necessitate observance of natural justice and providing reasonable
opportunity to the petitioner to defend his case and submit appropriate facts and details in relation to the show-cause notice

2

Section
73 and
Section
74

Ex-Parte
Assessment
order set
aside as the
petitioner had
valid ground
for seeking
adjournment

EPMS Property
Services (P.)
Ltd. v. State
Tax Officer
[2023] 152
taxmann.com
171 (Madras)

Notices were issued on 26.08.2019 calling for various particulars for finalizing the assessments. Petitioner could not attend the personal hearing as
its authorised representative was ill. Hence, the orders of assessment came to be passed, without further reference to the petitioner. The petitioner
filed statutory appeals challenging the assessments. The appeals were filed on 20.02.2020. Inter alia, the appeal memorandum contained an error,
in that, the date of receipt of the order was stated as '21.10.2019' instead of 29.09.2019.
The High Court held that orders of assessment suffer from violation of principles of natural justice and the exchange of correspondence between the
parties establishes that the petitioner was cooperating with the proceedings for assessment. This, and the request contained in letter dated
10.09.2019, lead to the conclusion that orders were set aside and the petitioner should be afforded an effective opportunity of hearing and
has been denied the same prior to passing of the orders impugned.

3

Section
74 and
Section
75

Opportunity of
being heard to
be provided in
pursuance of
provision of
Section 75(4)

Sri Krishna
Timbers v.
State Tax
Officer [2023]
152
taxmann.com
173 (Madras)

The petitioner had filed replies on dated 17.12.2020 against the SCN and in conclusion they requested for a personal hearing prior to finalization of
the proceedings. This request was totally ignored by the assessing officer who has instead proceeded to pass the impugned order without hearing
the petitioner. The High Court observed that impugned orders were passed under the provisions of Section 74 of the Act and the officer is, in passing
the orders, bound by the general provisions relating to determination of tax as set out under Section 75 of the Act.
The High Court set aside the impugned orders of assessment and the assessment to be carried out after providing an opportunity of
hearing.

4

Section
67

Onus is on the
Revenue to
prove that the
amount
collected
voluntarily
during search
was not in
violation of
Article 265 of
Constitution of
India

William E
Connor
Associates &
Sourcing (P.)
Ltd. v. Union of
India [2023] 152
taxmann.com
174 (Punjab &
Haryana)

The petitioner contended that a search was conducted on 23.12.2020 and 24.12.2020. In the said search, the petitioners were made to deposit an
amount of Rs.83,89,196/- on 06.01.2021, under protest and on the assurance that it would be reverted in the input tax credit of the petitioner-company.
The petitioners then requested the respondents to reinstate the aforementioned amount in their Input Tax Ledger by sending a letter. But the request
of the petitioners was not considered even though a period of two years had lapsed. The petitioners alleged that no proceedings under Section 74(1)
of the CGST Act had been initiated by the revenue, but still the input tax credit was not reverted in their ledger.
The High Court held that any amount deposited voluntarily by the petitioner during search would not amount to collection of tax under
Article 265 of the Constitution and an amount collected without authority of law, would not amount to collection of tax and the same would
amount to depriving a person of his property without any authority of law and would infringe his rights under Article 300A of the
Constitution of India as well. Since, the respondents failed to place any material on record to show that they got deposited amount of Rs.83,89,196/-
from the petitioners with any authority of law, therefore, the petition as allowed and a direction was given to the respondents to refund the amount of
Rs.83,89,196/- along with the interest @ 6% from the date of filing of the petition.
Cases Referred- Diwakar Enterprises Pvt Ltd. v. Commissioner of CGST and Anr. CWP No.23788 of 2021 decided on 14.03.2023, Modern
Insecticides Ltd and Anr. v. Commissioner, CGST and Anr. CWP No.8035 of 2021decided on 19.04.2023, Vallabh Textiles v. Senior Intelligence
Officer and others, 2022 SCC Online Del 4508, Union of India and others v. Bundl Technologies Pvt Ltd and others, ILR 2022 Karnataka 3077

Part-50-One Pager Snapshot to the Latest Cases

-Looking to the peculiar circumstances penalty was not leviable for Expired Eway Bill and High Court recognized that Rule 138(10) when provides for extension of eway bill also mandates to look at the conduct of the party for levy of penalty

-Non-Constitution of Tribunal

-High Court Mandates levy of penalty of Rs 50000 for generation of new Eway Bill without extending the validity of previous Eway Bill

50.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
129

Looking to the
peculiar
circumstances
penalty was
not leviable for
Expired Eway
Bill and High
Court
recognized
that Rule
138(10) when
provides for
extension of
eway bill also
mandates to
look at the
conduct of the
party for levy
of penalty

Progressive
Metals (P.) Ltd.
v. Deputy
Commissioner,
State Tax
[2023] 152
taxmann.com
158 (Calcutta)

Vehicle along with the goods entered the Durgapur industrial belt within the validity of the e-way bill. The vehicle was intercepted on 9th May, 2022
at 9:35 AM at Durgapur and the vehicle was detained along with the goods on the ground that the e-way bill had expired on 8th May, 2022 at 11:59
AM. The explanation given by the appellant was that it was a Sunday and the consignee had given instructions to unload the goods at a different
location within the same area and in this regard the appellant had produced e-mail sent by the consignee stating that they had given instructions
subsequently to unload the goods at a different location within the area to which the goods were sent as per the e-way bill.
The High Court observed that there was no intention on the part of the appellant to evade payment of tax. In any event, in terms of rule 138 of the
WBGST Rules, if an e-way bill had expired, the transporter had 08 hours time to seek for extension of the time stipulated in the e-way bill. If that
allowance is given, at the time when the vehicle along with the goods were intercepted, it was delayed by about 01 hour and 35 minutes. The particular
details given in e-way bill will show that area Durgapur has also been mentioned. It is not disputed that vehicle was within the Durgapur industrial belt
though not at Panagarh. Thus, considering the peculiar facts and circumstances of the case and in the absence of any material produced
by the revenue to doubt the bona fides of the appellant, High Court held that penalty should not have been imposed in this case.
The revenue relied upon the judgement of Hon'ble Supreme Court in Chairman, SEBI v. Shriram Mutual Fund & Anr. reported at [2006] 5 SCC 361
for the proposition that the intention of the authority committing such violation becomes immaterial when there is a contravention of the statutory
obligation.
The High Court observed that third proviso to Rule 138(10) states that the validity of e-way bill may be extended within 8 hours from the time of its
expiry. Thus, the rules give certain latitude and therefore, the conduct of the transporter was required to be examined bearing in mind that the rule
itself provides for extension of the validity period of the e-way bill and the transporter has been given a latitude of 8 hours to seek for such extension.
If that benefit was to be granted to the appellant, then the delay would be about 1 hour and 35 minutes. There is no other allegation against the
appellant. Therefore, considering the peculiar facts and circumstances of the case, the High Court held that this was not a case, where
penalty that too 200% penalty should have been imposed.

2

Section
112

NonConstitution of
Tribunal

Essar Steel
Suppliers v.
Union of India
[2023] 152
taxmann.com
128 (Bombay)

n the instant case, petition under Article 226 of the Constitution of India was filed to challenge an Order-in-Appeal dated 21 April, 2021 passed by
the Commissioner of Central Taxes, Central Excise & Service Tax (Appeals), Raigarh. Against the said order, an appeal was provided under Section
112 of the Central Goods and Service Tax Act, 2017 to the Appellate Tribunal. However, till today, the Tribunal has not been set up.
The High Court relying upon its Judgement in Rochem India Pvt. Ltd. v. The Union of India & Ors.) dated 8 February 2023 held that the
period of filing the Appeal will stand extended as indicated in Clause 4.2 of the Circular dated 18 March 2020 and impugned order will not
be given effect until two weeks after the period prescribed for filing an appeal as under Clause 4.2 of Circular dated 18 March 2020 is over

3

Section
129

High Court
Mandates levy
of penalty of
Rs 50000 for
generation of
new Eway Bill
without
extending the
validity of
previous
Eway Bill

Bitumix India
LLP v. Deputy
Commissioner
of Revenue,
State Tax.
[2023] 152
taxmann.com
122 (Calcutta)

The goods which were being transported by the appellants to Assam were covered by e-Way Bill which was valid upto 18th March, 2022. On account
of the breakdown of the vehicle the goods did not move outside the territory of the State of West Bengal and was stationed at Dankuni on 18.03.2022.
The consignee in the meantime had sold the goods which were in transit to another purchaser in Assam and the goods were transported by the same
vehicle after generating a new e-Way Bill on 22.03.2022. The vehicle was detained on 25.03.2022 and order of penalty has been passed on the
ground of first e-Way Bill on 18.03.2022 had not been renewed/extended by the appellants.
The High Court observed that it is not in dispute on the date and time and the goods were intercepted that was on 25.03.2022 the appellants had a
valid e-Way Bill. The only mistake committed by the appellants was of not renewing the e-Way Bill which expired on 18.03.2022. This in opinion of
the High Court should not have been done since the goods were sold in transit. Therefore, violation had been committed by the appellants but
the violation was not as grave enough to call for imposition of penalty at the rate of 200% as on the date when the vehicle was intercepted
the goods were covered by a valid e- Way Bill which satisfies the requirement under Section 129 of the Act. However, the High Court further
held that that the mistake committed by the appellants in not renewing the earlier e-Way Bill which expired on 18.03.2022 the appellants should be
put on terms and thus the order passed was modified with the direction to the appellants to pay a penalty of Rs.50,000/- which will include
both CGST and WBGST instead of 200% penalty as imposed by the authorities

Part-49-One Pager Snapshot to the Latest Cases

-Request for personal hearing cannot be rejected merely because the reply in which such request was made was filed beyond the prescribed period
-Merely stating the reason without providing relied upon documents is violation of principle of natural justice
-Unless the revenue makes opinion to falsify the genuineness of documents available at the time of detention, consignor or consignee mentioned therein has to be treated as owner
-Notice under Section 61 is not mandatory before issuance of notice under Section 74

49.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
75 and
Section
75

Request for
personal hearing
cannot be rejected
merely because the
reply in which such
request was made
was filed beyond the
prescribed period

Principle
Mahendra (P.)
Ltd. v. Deputy
Commissioner
of Commercial
Taxes. Bang
[2023] 152
taxmann.com
120 (Karnataka)

In the instant case, reply was rejected stating that, it was filed beyond the prescribed period. However, in the reply filed by the petitioner, a
request was made for personal hearing
The High Court observed that the mandate under Section 75(4) of the CGST Act, 2017 is clear that, when a written request is made from the
person chargeable with tax or penalty seeking for personal hearing, the same is required to be considered and contention of the revenue that
request for personal hearing was made out in the reply, which having been rejected, the request for personal hearing was also to be rejected
was held to be a hyper technical interpretation which resulted in rejection of the opportunity under Section 75(4) of the Act. The order was set
aside and respondents were directed to afford an opportunity of personal hearing before proceeding with the order and petitioner
was asked to pay costs of Rs.10,000/- to the respondents for lapse in filing a delayed reply

2

Section
29 and
Section
30

Merely stating the
reason without
providing relied
upon documents is
violation of principle
of natural justice

Sarvoday
Impex v. Union
of India [2023]
152
taxmann.com
113 (Gujarat)

SCN for cancellation of registration stated the reason for issuance of notice (as in case, Registration has been obtained by means of fraud,
wilful misstatement or suppression of facts). The High Court observed that respondents have not provided details to petitioner as to how
petitioner has committed fraud, wilful misstatement, or suppression of facts; while obtaining registration.
The High Court quashed the impugned and set-aside the show-cause notice and granted liberty to the authorities to issue fresh SCN.
Case Referred- Aggrawal Dyeing and Printing Works Vs. State of Gujarat & Ors Special Civil Application No.18860 of 2021 decided on
24.02.2022

3

Section
129

Unless the revenue
makes opinion to
falsify the
genuineness of
documents available
at the time of
detention, consignor
or consignee
mentioned therein
has to be treated as
owner

Shahil Traders
v. State of U.P.
[2023] 152
taxmann.com
24 (Allahabad)

The goods were detained upon statement of the driver of the truck being recorded. The High Court observed that it does not appear to be the
case of the revenue that tax invoice and E-way bill relied by the petitioner were not produced by the driver of the truck at the time of detention
of the goods but rather it appears that such documents were produced at the time of first interception, however, revenue authorities entertained
a doubt as to the genuineness of the consignee.
The High Court stated that revenue has not formed any opinion to falsify the genuineness of the tax invoice and the E-way bill claimed by the
petitioner. It also does not dispute that those documents were found present on the vehicle in question at the time of its first detention. It is
further not in dispute that the present petitioner claims to be the owner of the goods. Therefore, petitioner may remain liable to pay security
in terms of Section 129(1)(a) of the Act.
Cases-Referred- M/s Margo Brush India and Others v. State of U.P. and Others decided on 16.1.2023 and M/s Riya Traders v. State of U.P.
and Another decided on 17.1.2023.

4

Section
61 and
Section
74

Notice under
Section 61 is not
mandatory before
issuance of notice
under Section 74

Devi Traders v.
State of Andhra
Pradesh [2023]
152
taxmann.com
22 (Andhra
Pradesh)

The question before the High Court was whether Scrutiny U/Sec 61 is mandatory before issuance of notice U/Sec 74.
The High Court observed that Section 74 starts with the clause “where it appears to the proper officer that any tax has not been paid”. If the
intendment of legislature was to make Section 74 bound by Section 61 and 65 alone, that fact would have been clearly depicted in Section 74.
However, there is no specific reference to Section 61 or 65 in Section 74 except the usage “where it appears”. The phrase “where it appears”
is a free, unfettered and unbound usage made by legislature, thus the source for the proper officer to proceed U/s 74 may be either
Section 61 or 65 or some other fact. The High Court distinguished judgement of Madras High Court that therein certain defects were
pointed out in DRC-01 out which were different from the defects mentioned in the Form ASMT -10 which was earlier issued U/s 61.
Case Distinguished- Vadivel Pyrotech Private Limited v. The Assistant Commissioner (ST), Circle-II, Commercial Tax Department

Part-48-One Pager Snapshot to the Latest Cases

-Order disposing objections submitted in Rule 159(5) is not an appealable order and only remedy available is writ.
-Mere noting in the File does not tantamount to order being passed.
-Commissioner has the power to attach bank account under Section 83 of a person located outside the State.
-For Financial Credit Notes issued for post-sale discount, No ITC reversal required.
-E-way required to be generated even for transaction other than supply.

48.-Daily-Round-up-to-the-Latest-CasesDownload

S.No

Section

Case Subject

Case

Held

1

Section
83

Order disposing objections
submitted in Rule 159(5) is
not an appealable order and
only remedy available is
writ.
Expiry of one Year from the
date of provisional
attachment makes the
order inoperative.
Mere noting in the File does
not tantamount to order
being passed.
Commissioner has the
power to attach bank
account under Section 83 of
a person located outside
the State.

Bharat Parihar v. State
of Maharashtra [2023]
152 taxmann.com 6
(Bombay)

High Court relying upon decision of Hon’ble Apex Court in the matter of Radha Krishan Industries v. State of Himachal
Pradesh [2021] 6 Supreme Court Cases 771 held that order disposing the objections to provisional attachment of bank
account was not an appealable order and only remedy available was invocation of writ jurisdiction under Article 226.
The order for Provisional Attachment was made on 21st April 2022 and period of one year from the said date expired on 21st
April 2023. Therefore, provisional attachment order dated 21st April 22 ceased to have effect by operation of law and was
held not operative after 21st April 23.
Revenue sent a letter dated 19th April 2023 to the bankers with a copy marked to the Petitioner for continuation of attachment.
They stated that fresh order passed was noted on the order sheet. The High Court did not find any fresh order having being
passed to attach the bank account on 19th April 2023 and mere noting’s in the file of the concerned Officer was held to be
not to constitute an order without a formal order as the law may mandate being passed and most importantly such
order being communicated to the affected person, whose bank account is attached. Revenue failed to show firstly such
order being passed and secondly being served on the Petitioner. The High Court further observed that the revenue has also
not disputed that letter of 19th April 2023 was only a communication to the bank, to retain provisional attachment of the
account and thus, it can never be a fresh order under Section 83(1) provisionally attaching the Petitioner's bank
account.
It was submitted by the Petitioner that Respondents do not have the jurisdiction to pass the provisional attachment order, since
the Petitioner was in Chennai and the bank account, in respect of which the provisional attachment order was communicated,
was also in Chennai. The High Court observed that Sub-section (1) of Section 83 empowers Commissioner to provisionally
attach any property, including bank account belonging of taxable person or "any person" specified in Section 122(1-A) and
Section 122(1-A), refers to "any person", who has retained benefit of a transaction and in whose presence, transaction is
conducted. It does not contemplate of a situation where the person should be located within the State in which the transaction is
carried out. Therefore, Respondents were held to have the jurisdiction to resort to the provisions of Section 83 of the
Act with respect to the Petitioner located in Chennai.
Cases Referred- Radha Krishan Industries v. State of Himachal Pradesh [2021] 6 Supreme Court Cases 771, Guru Nanak
Motor House v. Union of India 2021-TIOL-2017-HC-Mum-GST

2

Section
7,
Section
15 and
Section
16

For Financial Credit Notes
issued for post-sale
discount, No ITC reversal
required as there was no
corresponding reduction of
outward liability at the end
of the supplie

Vedmutha Electricals
India (P.) Ltd [2023]
152 taxmann.com 7
(AAR - ANDHRA
PRADESH

Applicant was issued commercial credit notes for Turnover Discounts, Quantity Discounts, Cash Discounts, Additional Scheme
Discounts. The credit notes issued were without GST. The supplier had made no adjustment in price in respect of goods already
sold. The petitioner relied upon Circular No. 122/3/2010, dated 30-4-2010 issued by CBEC in context of Rule 4(7) of the Cenvat
Credit Rules, 2004, Circular No. 877/15/2008-CX, dated 17th November, 2008, regarding reversal of Cenvat credit in case of
trade discount and C.B.E. & C. Flyer NO. 19, DATED1-1-2018. AAR held that corresponding reduction in ITC was not
warranted as there was no corresponding reduction of outward liability by the supplier.

3

Section
129 read
with Rule
138

E-way Bill required to be
generated even for
transaction other than
supply

KIA Motors India (P.)
Ltd. v. State of
Madhya Pradesh
[2023] 152
taxmann.com 9
(Madhya Pradesh)

The petitioner contended that demo vehicle was transported in the State of Madhya Pradesh not for sale and therefore, was not
exigible to GST. The High Court observed that Rule 138(1)(ii) makes it clear that causing of movement of a goods exceeding
the value of Rs.50,000/- even for the reasons other than supply, makes it incumbent upon the supplier to inform about the supply
of goods in Form-A GST, EWB-01 alongwith other information as required and no such information as mandatory in Rule 138(1)
of GST Rules, was given by the petitioner supplier. Therefore, in absence of information given, entry of demo car into the
State of Madhya Pradesh was held to be exigible to GST