Part-47-One Pager Snapshot to the Latest Cases

-Extension of Time Limit for filing of refund application
-Seller to compensate Buyer for ITC not reflecting in GSTR-2A
-Order of Provisional Attachment cannot be in force for a period of more than one year
-Condition for AdditIonal payment for stay of demand cannot be imposed when Appeal has already been filed with 10% Pre-Deposit

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

S.No

Section

Case Subject

Case

Held

1

Section
54

Extension of Time
Limit for filing of
refund application

Geeta Enterprises
v. Union of India
[2023] 152
taxmann.com 27
(Delhi)

The order-in-original dated 11.05.2021 rejected the petitioner's claim for refund of ITC for the month of April, 2018 as time barred. The
order-in-appeal rejected petitioner's appeal. The petitioner contended that vide notification dated 05.07.2022 (Notification No.13/2022 -
Central Tax) period of limitation for filing an application for refund under Sections 54 and 55 of the CGST Act has been relaxed.
The High Court set aside the impugned orders and the petitioner's application were restored for deciding the same on merits.

2

Section
16

Recipient cannot be
held liable for
incorrect filing of
GSTR-1 by the
supplier and
supplier directed to
refund the amount of
demand recipient
had to pay for
incorrect filing of
GSTR-1 by supplier
as the said amount
not reflected in
GSTR-2A of
Recipient

Agrawal &
Brothers v. Union
of India
[2023] 152
taxmann.com 111
(Madhya Pradesh)

The instant writ petition was filed by M/s Agarwal and Brothers against the Railways for incorrect reporting of Transaction in GSTR-1 and
due to which they had to pay a demand of Rs 13,38,544/- to GST Department as the said amount of ITC was not reflected in GSTR-2A.
The petitioner purchased for a total consideration of Rs.51,97,142/- including the GST of Rs.9,35,486/-. The petitioner thereafter came to
know that Railways had committed default in reporting the entries by not reporting the auction sales invoice duly paid by the petitioner in
GSTR-1 due to which the auction sale invoice was not reflected in the petitioner's GSTR-2A. GST Department issued a demand notice
dated 05.02.2020 to the petitioner demanding input tax wrongly availed with interest. In order to avoid the cancellation of GSTIN due to
non-payment of the GST charges, the petitioner agreed to repay the requisite GST charges on aforesaid entries for the year 2017-18 under
protest. Final order was passed by the Officer confirming demand of ITC amounting to Rs.9,34,096/- together with interest of Rs.4,04,451/-
The High Court stated that there is no recovery of GST against the petitioner since the amount has already been deposited. However, it is
a settled law that no one cannot be made to suffer for the fault of another. Since this deposit of GST was not reflected in GSTR-2A of the
petitioner due to fault of Railways, therefore, petitioner had to pay the GST to the department with interest again in order to avoid the
cancellation of GSTIN, therefore, he is entitled to seek the return of Rs.13,38,544/- from Railways.
The Writ Petition was allowed and Railways was directed to return the amount of Rs.13,38,544/- to the petitioner and Railways was stated
to be at liberty to submit a claim before the GST department as the same has been paid by the petitioner and if such claim is submitted,
the competent authority GST Department shall decide the same in accordance with the law. The Writ Petition was allowed with a cost of
Rs. 10,000/- in favour of the petitioner payable by Railways

3

Section
83

Order of Provisional
Attachment cannot
be in force for a
period of more than
one year

Sri Om Traders v.
Principal
Additional Director
General of GST
Intelligence Officer
DGCI [2023] 152
taxmann.com 115
(Karnataka)

The High Court stated that in the present case, the period of one year from the passing of the provisional orders of attachment has expired
as evident from the details furnished and the provisional orders of attachment automatically by operation of law have been ceased to be in
operation. Accordingly, the impugned orders of attachment were declared to be no longer in operation from the expiry of the period of one
year as stipulated under Section 83(2) of the Act.

4

Section
107

Additional condition
for payment for stay
of demand cannot
be imposed when
Appeal has already
been filed with 10%
Pre-Deposit

Liakhat Ali Mallick
v. State of West
Bengal [2023] 152
taxmann.com 114
(Calcutta)

The appellant had earlier challenged notice dated 13th February, 2023 on the ground that the appellant has paid the entire tax as demanded
and has also preferred an appeal before the appellate authority and before the expiry of the period for filing the appeal, the garnishee notice
was issued. The learned Single Bench thereafter granted stay of the garnishee notice but imposed a condition that the appellant had to
deposit 20% of the interest liability. The decision was challenged.
The High Court reversing the decision of Single Bench held that considering that the statutory requirement mandates payment of only 10%
of the disputed tax, therefore a condition need not be imposed by directing the appellant/petitioner to pay 20% of the interest

Part-46-One Pager Snapshot to the Latest Cases

-Summary SCN in DRC-01 and Summary Order in DRC-07 are invalid in absence of detailed SCN and order respectively
-Revocation of Cancelled Registration and Entitlement to Lodge claim for ITC for the intervening period
-Invoking Provisions of Section 129 and then switching to Section 130 without providing release of goods under Section 129.
-Delay in disbursement of refund
-Opportunity of being heard not provided

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

S.No

Section

Case Subject

Case

Held

1

Section
73

Summary SCN in
DRC-01 and
Summary Order in
DRC-07 are invalid
in absence of
detailed SCN and
order respectively

Shree Ram
Agrotech v. State
of Jharkhand
[2023] 152
taxmann.com 82
(Jharkhand)

The petitioner contended Respondents had not issued detailed SCN and only summary was issued in DRC-01 and order issued was also
in DRC-07 without detailed order being issued.
The High Court observed that no SCN in terms of Section 73 (1) of the JGST Act, 2017 was served upon the Petitioner and reliance of the
Respondents on the alleged Summary show cause in Form GST DRC-01, dated 20.12.2018, was also of not much avail. Also, it was
observed that when no detailed adjudication order, as required under Section 73 (9) of JGST Act, 2017, had been passed or issued, the
Petitioner was not liable to pay impugned demand only on the basis of the said Form DRC-07. It was also observed that appellate authority
should have decided the case on merit and should have given its finding on the grounds of Appeal that DRC-07 has been issued without
issuing any no show cause notice in terms of Section 73 (1) of the JGST Act, 2017 and also without any adjudication order

2

Section
29 and
Section
30 and
Section
16

Revocation of
Cancelled
Registration and
Entitlement to Lodge
claim for ITC for the
intervening period

R.k. Jewelers v.
Union of India
[2023] 152
taxmann.com 81
(Rajasthan)

The High Court was of the opinion that petitioner firm is covered within the notification dated 31.03.2023 and can move an application
before the competent authority with a prayer for restoration of its GST registration subject to fulfilment of the conditions mentioned in the
said notification, therefore writ petition was disposed of with liberty to the petitioner-firm to file application for restoration of its GST
registration before the competent authority. It was also made clear that when the competent authority would consider the issue of revocation
of cancellation of petitioner firm GST registration under the notification dated 31.03.2023, the petitioner-firm, shall be entitled to lodge its
claim for availment of Input Tax Credit in respect of the period from the cancellation of the registration till the registration is restored

3

Section
129 and
Section
130

Invoking Provisions
of Section 129 and
then switching to
Section 130 without
providing release of
goods under Section
129.

Sharda Batteries
and Metals v.
Deputy
Commissioner of
State Tax [2023]
152 taxmann.com
80 (Gujarat)

Petitioner contended that exercise of powers under Section 129 and thereafter switching over to Section 130 and passing order thereunder
without availing the petitioner the benefits of release of the goods under Section 129, could be said to be without jurisdiction. It was also
submitted that Special Civil Application No.8353 of 2022 and other matters have been entertained by this court involving the same point
and interim relief of release of the goods and conveyance has also been granted on condition.
The High Court directed by way of interim relief that goods of the petitioner as well as vehicle bearing registration No. TS-12-UC 2787, be
released subject to conditions being fulfilled and petition be listed with Special Civil Application No.8353 of 2022

4

Section
54

Delay in
disbursement of
refund

KA Prevulcanised
Latex (P.) Ltd. v.
Government of
Tamil Nadu [2023]
152 taxmann.com
79 (Madras)

The petitioner had applied for refund and had not received refund of 90% of the CGST and IGST. The first respondent had provisionally
sanctioned the refund vide its provisional refund and Final orders too had been passed.
The High Court observed that the respondent had sanctioned refund both by virtue of the provisional refund orders and the final orders
sanctioning the refund and they had not only failed to respond to the request of the petitioner, but even before the Court, they were not able
to give any reason as to why refund was not made despite orders of the first respondent. These amounts are rightfully due to the petitioner.
Therefore, writ petition was allowed and second respondent was directed to refund the amount due to petitioner.

5

Section
74

Opportunity of being
heard not provided

TK Elevator India
(P.) Ltd. v.
Assistant
Commissioner
(GST) [2023] 152
taxmann.com 78
(Delhi)

Notice dated 05.11.2020, pointing out certain discrepancies, was issued under Section 61 of the CGST Act. The petitioner responded to
the said notice on 05.12.2020, setting out the explanation for the alleged discrepancies. The petitioner also prayed that in case the
proceedings initiated pursuant to the notice dated 05.11.2020 were not dropped, the petitioner might be afforded an opportunity of personal
hearing before the final decision was taken. The petitioner's request for personal hearing was rejected and the impugned order was passed
under Section 74 of the CGST Act.
The High Court observed that a plain reading of the order indicated that there was neither any discussion nor any reference to the notice
dated 05.11.2020 or the petitioner's reply to the said notice. The said order is an unreasoned order. The said order was also vitiated as
having been passed without following the principles of natural justice as no opportunity for hearing was afforded to the petitioner. In view
of the above, the petition was allowed and impugned order dated 21.06.2021 was set aside

Part-45-One Pager Snapshot to the Latest Cases

-Cancellation of Registration without following Principle of Natural Justice and illegalities at assessment stage cannot be cured by appellate stage

-Writ filed without exhausting statutory remedy and delegation of powers by Commissioner

-Refund cannot be denied as revenue proposes to file an appeal against order of the appellate authority

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

S.No

Section

Case Subject

Case

Held

Cases Referred

1

Section 29

Cancellation of
Registration
without
following
Principle of
Natural Justice
and illegalities
at assessment
stage cannot be
cured by
appellate stage

Ultra Steel Ward v.
State of Madhya
Pradesh [2023] 151
taxmann.com 285
(Madhya Pradesh

The High Court observed that the SCN did not contain sufficient reasons to enable petitioner to file a reply. By
saying that the registration has been obtained by fraud/wilful misstatement/suppression of facts, is not
sufficient. Such terms need to be supported by reasons and some fundamental supporting material as to why,
how and under what circumstances the registration was obtained. Further, SCN for rejection of application for
revocation of cancellation of registration referred to an application dated 11.02.2022 which was, in fact, a reply
to the SCN for cancellation of registration and, therefore, it appeared to the Court that Revenue has not even
cared to ensure that true facts are reflected from the SCN. The carelessness on the part of the Revenue was
referred to be palpable. The appellate authority while passing the appellate order brushed aside the cogent
ground of violation of principle of natural justice (audi alteram partem). Pertinently, the appellate authority
conducted a physical verification of the premises of assessee. Such physical verification at the appellate stage
in the opinion of the High Court could not validate the illegalities which had crept at the initial stage of show
cause notice.
The proceedings were held to be illegal and revenue was at liberty to proceed by issuing a fresh, proper and
lawful show cause notice to the petitioner-assessee, if they were so advised.

Mohinder Singh Gill and
another Vs. CEC and
others, (1978) 1 SCC 405;
Health Care Medical
Devices Pvt. Ltd. Vs. MP
Public Health Services
Corpn. Ltd. and another,
2021 SCC OnLine MP
3389; Balaji Enterprises
Vs. Principal Additional
Director General, DGGSTI
and Others, 2022 SCC
OnLine Del 3201;

2

Section 83

Writ filed
without
exhausting
statutory
remedy and
delegation of
powers by
Commissioner

S. R. Traders v.
Additional Director
General [2023] 151
taxmann.com 286
(Kerala)

The High Court stated that the petitioner had approached the court without exhausting the statutory remedy
under Rule 159. It is well-settled that the writ jurisdiction was only to be exercised in extra-ordinary
circumstances.
The petitioner had further contended that only Commissioner was invested with the power to pass an order
under Section 83 but respondent stated that by notification, powers have been invested in the Additional
Director General. The High Court negated the contention and held that the respondent was competent to pass
order in view of express delegation of powers read with Sections 3 and 5 of the CGST Act.

M/s. Radha Krishan
Industries v. State of
Himachal Pradesh and
others [AIR 2021 SC 2114]

3

Section 54

Refun cannot be
denied as
revenue
proposes to file
an appeal
against order of
the appellate
authority

Alex Tour and Travel
(P.) Ltd. v.
Asistant
Commissioner,
CGST [2023] 151
taxmann.com 331
(Delhi)

The refund due to the petitioner in pursuance of the order of the appellate authority was not granted on the
ground that the decision of the appellate authority was erroneous and Revenue proposes to file an appeal
against the said decision as and when an appellate tribunal is constituted. The assessing officer also insisted
to file fresh refund application.
The High Court directed to grant the refund and rejected the insistence of Revenue to file fresh refund
application since proceedings emanated from petitioner filing applications for refund which was culminated in
Orders-in-Appeals passed by the appellate authority. Revenue cannot ignore the orders passed by the
appellate authority mainly on the ground that it proposes to file an appeal. Further there was no order passed
by the Court, staying the effect of the Orders-in-Appeal passed by the appellate authority. The respondent was
also taking no steps for securing orders to that effect. In view of the above, the petition was held liable to be
allowed

-

Part-44-One Pager Snapshot to the Latest Cases

-Condonation of Limitation period in case of rejection of appeal filed against cancellation of registration
-Calculation of Time limit for filing of Appeal as four months are not always 120 days
-Alternative Remedy
-Grant of Bail

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

S.No

Section

Case Subject

Case

Held

Cases Referred

1

Section
107

Condonation
of Limitation
period in
case of
rejection of
appeal filed
against
cancellation
of
registration

Gautam Kar v.
Union of India
[2023] 151
taxmann.com 281
(Gauhati)

The petitioner stated that Order of cancellation of GST registration was passed without any notice to the petitioner. An appeal
filed before the Appellate Authority was also dismissed on the ground of limitation.
The High Court observed that purpose of limitation being prescribed in a statute is two fold, namely, to ensure compliance of
the statutory provisions by the persons on whom the provisions of the statute are applicable and further to ensure that no third
party rights which may have been created in the meantime are permitted to be non suited/unsettled. It would be in the interest
of the revenue to permit the revocation of a cancellation of GST registration of an assessee like the petitioner so that it felicitates
collection of revenue as mandated under the GST Regime. It was further stated that a writ Court is empowered to condone the
delay of any statutory or quasi judicial authority. Accordingly, the Court stated that appeal before the Appellate Authority be reheard on merits by passing appropriate orders regarding the revocation of cancellation of GST

Commissioner
of Income Tax12 v. Pheroza
Framroze and
Company -
(2017) 11 SCC
730

2

Section
107

Calculation
of Time limit
for filing of
Appeal as
four months
are not
always 120
days

Shri Ram Ply
Product v.
Additional
Commissioner
Grade 2 Appeal
State Tax [2023]
151 taxmann.com
282 (Allahabad)

The appeal instituted by the petitioner was dismissed on the ground that it was beyond maximum period, as prescribed under
the statute i.e. four months. The appellate authority computed four months as each month would be of 30 days.
The High Court stated that provisions of Section 107 of the Act, 2017 reflects that it is not 120 days, but it is four months. The
four months may be of 121 days or 122 days, as the case may be. In the present case, in four months, around 121 days come,
and the appeal was filed on 121st day. The appellate authority should have entered into the merit of the application whether it
disclosed sufficient cause for not filing the appeal within the period of three months instead of entering into merit of the
application to find out whether the appellant, petitioner herein had sufficient cause which preventing him from presenting the
appeal within a period of three months, the appeal has been summarily dismissed only on the ground that it was beyond 120
days, and not within 120 days.

-

3

Section
107

Alternative
Remedy

T.V.H.Express v.
State Tax Officer
[2023] 151
taxmann.com 283
(Madras)

The high Court observed that, as against the impugned order, there was an appeal remedy available before the appropriate
authority. It was clear from the records that the petitioner had still not filed any appeal as against the impugned order. Therefore,
High Court, without going into the merits and factual aspects of the matter, directed the petitioner to file appeal against the
impugned order, dated 17.03.2022.

-

4

Section 69
and
Section
132

Grant of Bail

Mohd. Rashid
Siddiqui v. State of
U.P. [2023] 151
taxmann.com 284
(Allahabad)

The applicant for the bail was a young lawyer associated with the informant of the present case, who was also a practising
lawyer, sent the eight firms to the applicant for providing legal aid and G.S.T. Thereafter, on his advice, services of one Sanjay
Yadav was taken, who misused the user I.D. and password of the applicant and raised fabricated input tax credit. Learned
counsel for the applicant further submitted that detail investigation was conducted by the Investigating Officer, but the only
evidence found was of payment of Rs.1,12,000/- in the account of wife of the applicant by co-accused Sanjay Yadav.
The High Court stated that considering the rival submissions of learned counsel for applicant, learned A.A.G, learned counsel
for the complainant and going through the material available on record, contents of F.I.R., other relevant documents, gravity of
offence as well as facts and circumstances of the case, it was evident that during the course of investigation Rs.1.12 lakh was
found in the account of wife of the applicant by the main accused, Sanjay Yadav. It was also evident that said Sanjay Yadav,
had already been enlarged on bail. In such circumstances, applicant was entitled to be released on bail.

-

Snapshot-43-Snapshot of Latest GST Cases

-Since the petitioner had already availed alternate remedy, therefore the High Court declined to interfere
-Revenue cannot ignore the Order-in-Appeal and deny the benefits of the same on the ground that it seeks to appeal the said order
-Principle of Natural Justice should have been followed and petitioner should have been informed that application could be rejected without admission
-Opportunity of being heard be granted to the assessee

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

S.No

section

Case Subject

Case

Held

1

Section
73 and
Section
107

Since the petitioner had
already availed
alternate remedy,
therefore the High Court
declined to interfere

Pappachan Chakkiath
v. Assistant
Commissioner [2023]
151 taxmann.com 275
(Kerala)

It was observed by the High Court that pursuant to the permission granted by the learned single Judge, the appellant had already
filed a statutory appeal. As the appellant had sought for availing the alternate remedy and had, in fact, availed it, the High Court
was not inclined to admit the writ appeal and hear the contentions of the appellant on merits. The High Court further stated that
the Learned Single Judge has considered the contentions and had entered findings only for the purpose of declining jurisdiction
under Article 226 of the Constitution of India for entertaining the writ petition and nothing more.

2

Section
107 and
Section
112

Revenue cannot ignore
the Order-in-Appeal and
deny the benefits of the
same on the ground that
it seeks to appeal the
said order

Netgear Technologies
India (P.) Ltd. v.
Assistant
Commissioner GST
[2023] 151
taxmann.com 273
(Delhi)

The petitioner's application for refund was rejected by the officer by an Order-in-Original. The Appellate Authority allowed the
appeal by an Order-in-Appeal. Notwithstanding the same, the petitioner's request for the claim was not processed. The petitioner
filed another application once again claiming refund of the said amount. Thereafter, by a communication dated 10.08.2021, the
petitioner was informed that the Commissioner, CGST, Delhi East Commissionerate had directed the respondent to file an appeal
against the Order-in-Appeal dated 09.03.2021. The said appeal has not been preferred as yet.
The High Court noted that the respondent had taken no steps to secure any order about the stay of the Order-in-Appeal pursuant
to which the petitioner was now entitled to the claim of refund. The High Court allowed the petition and rejected the contention of
the revenue that the Revenue can ignore the Order-in-Appeal and deny the benefits of the same on the ground that it seeks to
appeal the said order.
Cases Referred-Zones Corporate Solutions Pvt. Ltd. v. Commissioner of Central Goods & Services Tax Delhi East & Anr.:
2020-VIL-302-DEL:W.P.(C) 3620/2020 and Alex Tour and Travel Private Limited v. Assistant Commissioner, CGST

3

Section
98

Principle of Natural
Justice should have
been followed and
petitioner should have
been informed that
application could be
rejected without
admission

KBL SPML 25JV v.
Authority for Advance
Ruling [2023] 151
taxmann.com 272
(Karnataka)

The advance ruling authority had rejected the petitioner's application as contemplated under Section 98(2) of the CGST/KGST Act
recording that the petitioner, who had the benefit of contract for construction of pumping stations and reservoirs as also for
Operation and Maintenance work between 01.11.2014 and 31.10.2021, had filed application for advance ruling on 07.09.2022
after the expiry of the corresponding contractual period.
The High Court was of the considered view that opportunity of hearing as contemplated under Section 98(2) cannot be an empty
formality, and the petitioner should have been informed that the application could be rejected without admission on the ground the
corresponding contractual period has expired. Therefore, the High Court directed that the opportunity of hearing contemplated was
rendered a mere formality by the Authority. The petitioner must therefore have appropriate liberty to file additional plea to show
cause against such reasoning and the respondent must reconsider the application

4

Section
74

Opportunity of being
heard be granted to the
assessee

Subodh Kumar
Mondal v. State of
West Bengal [2023]
151 taxmann.com 271
(Calcutta)

Impugned orders were passed under Section 74(9) of the WBGST Act, 2017. The appellant approached the Writ Court on the
ground that opportunity of personal hearing having not been granted. During the pendency of the writ petitions the entire amount,
which was demanded had been fully recovered except penalty and interest. It was contended by the revenue that notice was
issued fixing the hearing date, but appellant failed to appear on the said date and also did not appear on the adjourned date. The
petitioner contended that in the SCN dt 28th Sep, 2022 in the column regarding details of personal hearing, it was mentioned as
"not applicable".
The High Court that since by way of third party garnishee order, since entire tax demanded from the appellant have been recovered,
therefore, revenue would not be prejudiced if a fresh opportunity of personal hearing is granted to the appellant to put forth his
submissions. Further, in the light of the fact that the entire tax demanded in the three orders has been recovered, the respondent
authorities are directed to de-freeze the bank account of the appellant

Snapshot-42-Snapshot of Latest GST Cases

-Inter-play between Section 129 and 130 in Question
-Status of Recovery of demand on account of non-constitution of Tribunal
-GST officers have no power to seize any cash in exercise of its powers under Section 67(2) of the GST Act
-Opportunity of being heard to be given considering the reason for seeking adjournment was reasonable

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

S.No

Section

Case Subject

Case

Held

1

Section
129 and
Section
130

Inter-play between
Section 129 and 130 in
Question

Aahana Sales (P.)
Ltd. v. Union of India
[2023] 151
taxmann.com 230
(Gujarat)

Petitioner contended that when goods were in transit, the authorities intercepted the goods and confiscated them. In other words,
authorities sought to derive their powers for taking possession of the goods of the petitioner which were in transit under Section 129
of the Act. It was submitted that the said Section begins with non obstante clause and it is a provision independent of Section 130. In
that context, it was submitted that exercise of powers under Section 129 and thereafter switching over to Section 130 and passing
order thereunder without availing the petitioner the benefits of release of the goods under Section 129, could be said to be without
jurisdiction. Special Civil Application No.8353 of 2022 and other matters have been entertained by this court involving the same point
and interim relief of release of the goods and conveyance has also been granted on condition.
The High court directed that upon compliance of the required conditions stated in the order, goods and vehicle both shall be released
by the authorities and the petition be listed with Special Civil Application No.8353 of 2022

2

Section
112

Status of Recovery of
demand on account of
non-constitution of
Tribunal.

SAJ Food Products
(P.) Ltd. v. State of
Bihar [2023] 151
taxmann.com 229
(Patna)

The High Court held that subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in
dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section
107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the
B.G.S.T. Act, for he cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The
recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Case Referred- Angel Engicon Private Limited v. the State of Bihar & Anr. passed in C.W.J.C No. 1920 of 2023

3

Section
67

GST officers have no
power to seize any cash
in exercise of its powers
under Section 67(2) of
the GST Act

Arvind Goyal CA v.
Union of India [2023]
151 taxmann.com
228 (Delhi)

The petitioner had contended that GST officers had no power to seize any cash in exercise of its powers under Section 67(2) of the
GST Act. The department contended that that the officers had merely "resumed" cash as is noted in the panchnama and therefore,
the same cannot be considered as seizure. The High Court observed that Prima facie, a plain reading of Section 67(2) of the GST
Act indicates that the seizure is limited to goods liable for confiscation or any documents, books or things, which may be "useful for
or relevant to any proceedings under this Act". Clearly, cash does not fall within the definition of goods. And, prima facie, it is difficult
to accept that cash could be termed as a 'thing' useful or relevant for proceedings under the GST Act. The second proviso to Section
67(2) of the GST Act also provides that the books or things so seized would be retained by the officer only so long as may be
necessary "for their examination and for any inquiry or proceedings under the Act." However, Court thereafter noted that there was
no occasion for the Court to examine the aforesaid question as it was the respondents' stand that the cash was not seized.
It was contended by the respondent that seizure memo was not prepared as the officers, who had conducted the search operation,
had, in fact, not seized any cash. It was observed by the High Court that there was no provision in the GST Act that could support an
action of forcibly taking over possession of currency from the premises of any person, without effecting the same. The powers of
search and seizure are draconian powers and must be exercised strictly in terms of the statute and only if the necessary conditions
are satisfied. Thus, it was held that the action of taking away currency was illegal and without any authority of law respondents were
directed to forthwith return the balance amount along with the interest accrued thereon to the petitioners and the bank guarantee
furnished by petitioner for release of currency was directed to be released forthwith

4

Section
107

Opportunity of being
heard to be given
considering the reason
for seeking adjournment
was reasonable

Swaraj Equipment
(P.) Ltd. v.
Commissioner
(Appeals II) [2023]
151 taxmann.com
227 (Madras)

The only grievance put forth was that the petitioner was not heard prior to passing of the impugned order. The officer records that
though personal hearing was fixed on 06.01.2023 and re-fixed on 08.02.2023, on both occasions, only adjournment was sought on
the ground that additional information was to be collected. However, the assessee pointed out that marriage reception of his daughter
was on 04.02.2023, on account of which, he was unable to collect the requisite particulars. The High Court was of the considered
view that the aforesaid reason constitutes sufficient cause and that the officer ought to have taken note of the same and re-schedule
the date of hearing to accommodate the request as aforesaid and thus the impugned order was set aside, appeal stood restored

Snapshot-41-Snapshot of Latest GST Cases

-Since revisional proceedings under Section 108 to consider order on merits already started therefore prayer made to direct officer to undertake rectification not to be gone into.
-Until further orders, payment of GST for grant of mining lease/royalty was stayed
-Petitioner approaching the court against issue of DRC-01A held to be pre-mature.(Levy of CGST/SGST instead of IGST on order placed by local customer but vehicle transported from Assam to Tripura)
-A recipient of service cannot apply for Advance Ruling.
-Grant of Bail

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

S.No

Section

Case Subject

Case

Held

1

Section
108 and
Section
161

Since revisional
proceedings under
Section 108 to consider
order on merits already
started therefore prayer
made to direct officer to
undertake rectification
not to be gone into

Lakshmi Cot-Gin (P.)
Ltd. v. State of
Gujarat [2023] 151
taxmann.com 218
(Gujarat

In the instant case, order was passed under Section 74 on dated 3.3.2022. Order of provisionally attaching bank account was also
passed. The petition was filed to direct the officer to pass rectification order under section 161 with reference to adjudication order
dated and to set aside the order for provisional attachment alongwith refund of the amount which according to the petitioner, was
recovered coercively from the bank account. By order dated 23.11.2022, the court issued notice for final disposal but in the meantime,
officer initiated the revisional process under section 108(1) of the GST Act to again examine the merits of the said order.
The High Court thus considering the above stated that there was no gainsaying that issue raised by the petitioner and for which the
rectification had been sought for, would be under examination by the revisional authority. Thus, in view of the above, it was held that
the present petition was rendered not liable to be gone into as revisional authority was in process of adjudication of disputed aspects.

2

Section 9

Until further orders,
payment of GST for
grant of mining
lease/royalty was
stayed

Amorous Trading
India (P.) Ltd. v. State
of U.P [2023] 151
taxmann.com 219
(Allahabad

The petitioner contended that royalty payment is tax and not consideration in the context of the privilege parted by the State allowing
the petitioner and others to mine sand. That being the nature of the payment made by the petitioner, the same is not amenable to
GST as it is not consideration either for sale of goods or service provided. The reliance was placed on a Constitution Bench decision
of the Supreme Court in India Cement Ltd. and Others v. State of Tamil Nadu and Others [1990] 1 SCC 12, wherein, nature of royalty
payment was considered and it was opined to be tax, and it was shown that a similar controversy is engaging the attention of the
Supreme Court in M/s Lakhwinder Singh v. Union of India & Ors. in Writ Petition (Civil) No. 1076 of 2021. The High Court held that
until further orders, payment of GST for grant of mining lease/royalty by the petitioner shall remain stayed.

3

Section
10 of
IGST
Act,2017

Petitioner approaching
the court against issue
of DRC-01A held to be
pre-mature.(Levy of
CGST/SGST instead of
IGST on order placed
by local customer but
vehicle transported from
Assam to Tripura)

SL Automobiles (P.)
Ltd. v. State of
Tripura [2023] 151
taxmann.com 220
(TRIPURA)

The petitioner was a dealer of Honda motorcars having its head office at Guwahati and a branch office at Agartala. Upon an order
placed by a local customer for delivery of the car, the petitioner sent the vehicle from Guwahati to Agartala by way of a branch transfer
but upon payment of full IGST. The State GST authorities, however, held the belief that not IGST but CGST and SGST were payable
since this is an incident of local sale. The officer seized three motorcars which were lying in the showroom of the petitioner at Agartala
and issued DRC-01A under Section 74(1) and passed an intimation/order asking the petitioner to pay a sum of Rs.1,28,37,517/- by
way of unpaid CGST and SGST with interest and penalty. The orders of attachment and assessment was challenged in the petition.
The Court noted that DRC-01A being issued is not a show-cause notice which petitioner had prayed to quash in the writ petition.
Moreover, the proceeding was pending and without any outcome of the proceeding, the petitioner approached the court. The court
felt that the writ petition filed was at a pre-mature stage, and accordingly, the same was dismissed.

4

Section
95

A recipient of service
cannot apply for
Advance Ruling

Uttar Pradesh Metro
Rail Corpn. Ltd.
[2023] 151
taxmann.com 224
(AAR- UTTAR
PRADESH)

The applicant was a receiver of the Services and in view of point (a) provided under Section 95 of CGST Act 2017, since a supplier
of the services can only file Application for Advance Ruling. Therefore, following the decision in the matter of M/s Purvanchal Vidyut
Vitran Nigam Limited, authority did not admit the application for consideration/ruling on merits as applicant did not fall under the
definition of Advance Ruling

5

Section
69 and
Section
132

Grant of Bail

Vivek Mishra v.
Union of India [2023]
151 taxmann.com
226 (Allahabad)

The High Court noted that it was an admitted fact that applicant was neither proprietor nor owner of the firm, whereas his mother Smt.
Anusuiya Mishra was the proprietor of the firm and no charge-sheet or complaint had been filed by the Department against her. The
investigation was completed and charge-sheet/complaint had already been filed and there was no chance of tampering of evidence
or influence of witnesses.
The High Court noted that the maximum punishment under Section 132(1)(a) of the Act, 2017 is five years which was triable by
Magistrate and there was no criminal history of the applicant and applicant was having fixed place of residence and there was no
chance of his absconding. Thus, considering the complicity of accused, severity of punishment as well as totality of facts and
circumstances, the High Court found it a fit case for bail and thus bail application is allowed

Snapshot-40-Snapshot of Latest GST Cases

-The word “bogus” has not been used by the statute and Per se, no registration may be cancelled by merely describing the firm that had obtained it, was “bogus”.
-Order uploaded on the portal and thus appeals filed by petitioner could not be dismissed on the ground that the petitioner had not submitted certified copies of the orders.
-Matter remanded by High Court for fresh consideration in terms of M/s Ernst & Young Ltd. v. Additional Commissioner, CGST Appeals-II, Delhi & Anr. for services rendered to overseas entities, in terms of an Advisory Service Agreement
-Inter-play between Section 129 and 130 in Question

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

S.NO

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

The word "bogus" has
not been used by the
statute and Per se, no
registration may be
cancelled by merely
describing the firm that
had obtained it, was
"bogus"

Star Metal Company
v. Additional
Commissioner
Grade-2 [2023] 151
taxmann.com 214
(Allahabad)

In the instant case, registration of the petitioner was cancelled based on the survey dated 27.09.2019 with the report that the disclosed
business place of the firm was not found and therefore, the firm is bogus. On the said basis, the registration was cancelled on
01.12.2020. The petitioner moved application for revocation of cancellation of the registration on 28.01.2021, but the same was
rejected. Thereafter, on 26.04.2021, a show cause notice was issued to the petitioner to show cause as to why the revocation of
cancellation of registration may not be rejected.
The High Court relied upon the decision in the matter of Apparent Marketing Private Limited v. State of U.P. stated that per se, no
registration may be cancelled by merely describing the firm that had obtained it, was "bogus". The word "bogus" has not been used
by the statute and since the authority had not provided any specific ground mentioned under section 29(2) of the GST Act, therefore,
orders passed were quashed and it was left open for the authority to issue a fresh notice on any specific ground mentioned under
section 29(2) of the GST Act.
Cases Referred- Apparent Marketing Private Limited v. State of U.P. & 3 Others (Writ Tax No. 348/2021 decided 05.03.2022)

2

Section
107

Order uploaded on the
portal and thus appeals
filed by petitioner could
not be dismissed on the
ground that the
petitioner had not
submitted certified
copies of the orders

Oaknorth (India) (P.)
Ltd. v. Union of India
[2023] 151
taxmann.com 215
(Punjab & Haryana)

In the instant case, appeal filed by the petitioner had been dismissed on the ground that the appeal was not accompanied by the
certified copy of the impugned order and the appeals were not in accordance with Section 107 HGST Rules, 2017.
The High Court relied upon its earlier decision in KPMG INDIA (P.) LTD v. Jt. COMMISSIONER OF STATE TAX (APPEALS),
FARIDABAD decided on 13.02.2023 and allowed the petition keeping in view that the impugned orders were already uploaded on
common portal and were already part of the appeal and it would amount to substantial compliance of Rule 108 of the HGST Rules,
2017.It was held that the appeals filed by the petitioner could not be dismissed on the ground that the petitioner had not submitted
certified copies of the impugned orders

3

Section
13(8) of
IGST Act,
2017

Matter remanded by
High Court for fresh
consideration in terms
of M/s Ernst & Young
Ltd. v. Additional
Commissioner, CGST
Appeals-II, Delhi & Anr.
for services rendered to
overseas entities, in
terms of an Advisory
Service Agreement

GAP International
Sourcing (India) (P.)
Ltd. v. Additional
Commissioner,
CGST Appeals-II
[2023] 151
taxmann.com 216
(Delhi)

In the instant case, petitioner had claimed refund of ITC on the ground that it related to remuneration for services rendered to overseas
entities, in terms of an Advisory Service Agreement. The Appellate Authority noted that the petitioner's remuneration under the said
Agreement was based on costs plus a markup of 15% and observed that the petitioner was involved in facilitating supply of goods by
various suppliers to the foreign entities. The Appellate Authority held that the petitioner was acting as an agent, and the services
provided by it fell under the category of intermediary services. Thus, in terms of Section 13(8) of the Integrated Goods & Services Tax
Act, 2017 (hereafter 'IGST Act') read with Section 2(6) of the IGST Act, services rendered by the petitioner could not be treated as
export of services.
The High Court set aside the impugned order and the applications filed by the petitioner for refund for the Financial Years 2018-19
and 2019-20 were restored before the Adjudicating Authority for considering afresh considering the decision of this Court in M/s Ernst
& Young Ltd. v. Additional Commissioner, CGST Appeals-II, Delhi & Anr

4

Section
129 and
Section
130

Inter-play between
Section 129 and 130 in
Question

Kwality Steelage (P.)
Ltd. v. Union of India
[2023] 151
taxmann.com 217
(Gujarat)

In the instant matter question of law raised was regarding exercise of powers by the authority concerned under Section 130 of the
Act and could it be said to be without authority in law inasmuch as the goods were in transit when intercepted and confiscated. It was
submitted that when the goods were in transit, the powers for the authority to act must come from Section 129 and not Section 130
of the Act. Thus, when the goods are in transit, whether the authorities are entitled to invoke Section 129 of the Act and Section 129,
begins with the non obstante clause is a goods specific provision whereas Section 130 is assessee specific.
The High Court held that while a blanket stay of the said order as prayed for cannot be granted, relief regarding release of goods and
conveyance could be considered in favour of the petitioner upon imposing conditions and thus following Special Civil Application No.
8353 of 2012, which involved similar controversy, interim relief was granted.

Snapshot-39-Snapshot of Latest GST Cases

-Status of Recovery of demand on account of non-constitution of Tribunal
-Petitioner directed to avail benefit of N.No. 03/2023-CT for revocation of cancellation of registration
-Exercise of Power under Section 74 not dependent on issue of notice under Section 61 and can be exercised independently
-Provisions of Section 83 cannot be deployed to work against the assessee continuously for several years
-Grant of Bail

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

S.No

Section

Case Subject

Case

Held

1

Section
112

Status of Recovery of
demand on account of
non-constitution of
Tribunal.

PCPL and RK- JV v.
State of Bihar [2023]
150 taxmann.com
410 (Patna)

The High Court held that subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in
dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section
107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the
B.G.S.T. Act, for he cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The
recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.

2

Section
29 and
Section
30

Petitioner to avail
benefit of N.No.
03/2023-CT for
revocation of
cancellation of
registratio

Khodal Brass
Industry v. State of
Gujarat [2023] 150
taxmann.com 418
(Gujarat)

In the instant case, registration of the petitioner was cancelled and appeal against the said order to be dismissed on the ground of
appeal being filed beyond the period of limitation.
The High Court observed that Notification No. 03/2023-Central tax indisputably apply to the facts of this case and the petitioner may
approach the competent authority to avail the benefit of the Notification and seek revocation of the cancellation of registration. The
petition was accordingly disposed of.

3

Section
61 and
Section
74

Exercise of Power
under Section 74 not
dependent on issue of
notice under Section 61
and can be exercised
independently

Nagarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P [2023]
150 taxmann.com
419 (Allahabad)

The High Court did not accept the argument that unless deficiency in return is pointed out to the assesee, and an opportunity is given
to rectify such deficiency, that the department can proceed under Section 74 is not borne out from the statutory scheme and the
argument in that regard therefore, must fail. It was observed that the scrutiny proceedings of return as well as proceeding under
Section 74 are two separate and distinct exigencies and issuance of notice under Section 61(3), therefore, cannot be construed as a
condition precedent for initiation of action under Section 74 of the Act.
Therefore, the High Court held that merely because no notices were issued under Section 61 of the Act would not mean that issues
of classification or short payment of tax cannot be dealt with under Section 74 as exercise of such power is not dependent upon
issuance of notice under Section 61

4

Section
83

Provisions of Section 83
cannot be deployed to
work against the
assessee continuously
for several years

[2023] 150
taxmann.com 420
(Madras)
Nitesh Jain Mangal
Chand v. Senior
Intelligence Officer,
Directorate General
of Goods and
Service Tax
Intelligence

The issue before the High Court was whether Section 83 contemplates a continued attachment of bank accounts for several years
as has happened in the present case. Whether the proceedings may be kept pending endlessly such that attachments of bank
accounts traverse three to four years seamlessly. The High Court noted that the SCN had been issued only on 08.10.2022 in respect
of an inspection that had transpired in January, 2019.
The High Court thereafter seeing the time lines aforesaid observed that such timelines persuaded it to arrive at a conclusion that the
purpose of Section 83 which is stated to be 'provisional attachment to protect revenue in certain cases' cannot be deployed so as to
work against the assessee continuously for several years as has happened in the present case. It was further noticed that the order
is specifically based on the position that the inspection in this case was done in January, 2019 whereas the show-cause notice was
issued only in October, 2022. This delay of nearly four years in issuing show-cause notice cannot be a reason to continue an
attachment under Section 83 of the Act, which itself is provisional in nature. Undeniably, Section 83 must be resorted to in appropriate
cases, ensuring with equal vigour that the Department is proceeding in a timely manner, by issuing notice and finalizing proceedings
in a time bound fashion. Therefore, for the above reasons, the petitioner succeeded and writ petition was allowed

5

Section
69 and
Section
132

Grant of Bail

Shamim Akhtar v.
Directorate General
of GST Intelligence
[2023] 150
taxmann.com 421
(Punjab & Haryana)

The High Court observing the fact that the petitioner was accused for the commission of offences under CGST Act, which were triable
by the Magistrate and the maximum punishment prescribed for the alleged offences was upto 5 years, which would be dependent on
the quantum of tax evasion. The petitioner was under custody since the last one year and trial was at the stage of pre-charge evidence,
hence, there was no likelihood of the trial concluding soon. Therefore, petitioner was granted bails stating that further incarceration
of the petitioner in the aforesaid facts and circumstances would serve no useful purpose

Snapshot-38-Snapshot of Latest GST Cases

Supply of goods by shops located at domestic Airport or Domestic Security Hold Area, is taxable
-SCN set aside as the same was devoid of reasons and thus registration restored.
-Refund cannot be withheld merely because the revenue has decided to file an appeal against the order
-Petitioner failed to file appeal within condonable period, demand stayed subject to deposit of tax as Tribunal not constituted
-Market Research Services not covered by Intermediary services

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

S.No

Section

Case Subject

Case

Held

1

Section 9
of CGST
Act,
Section 5
IGST Act

Supply of goods by
shops located at
domestic Airport or
Domestic Security Hold
Area, is taxable

A1Cuisines (P.) Ltd.
V. Union of India
[2023] 151
taxmann.com 189
(SC)

The Bombay High Court held that supply of goods by shops located at a domestic Airport or Domestic Security Hold Area, which are
before even the immigration clearance by a passenger are taxable since the transaction cannot be said to have taken place in any
area beyond the customs frontiers of India or outside India.
The SLP before the Supreme Court against the said judgement was dismissed.

2

Section
29 and
Section
30

SCN set aside as the
same was devoid of
reasons and thus
registration restored.

Rishiraj Aluminium
(P.) Ltd. v. Goods &
Service Tax Officer
[2023] 151
taxmann.com 163
(Delhi)

The High Court observed that SCN was deficient and it does not sufficiently disclosed reasons why petitioner's GST Registration was
suspended or was proposed to be cancelled. It is well settled that a SCN must clearly set out the reasons for proposing an adverse
action for noticee to respond. The High Court found merit in the petitioner's contention that he was at a loss as to how to respond to
the impugned show cause notice as it did not disclose any intelligible reason for proposing cancellation of the petitioner's registration.
The High Court thus set aside the show cause notice and petitioner's GST Registration was restored.

3

Section
54

Refund cannot be
withheld merely
because the revenue
has decided to file an
appeal against the order

G. S. Industries v.
Commissioner
Central Goods and
Services Tax [2023]
151 taxmann.com
162 (Delhi

The question was whether benefit of Order-in-appeal dated 03.01.2022 can be denied to the petitioner and refund amount be withheld
solely on the ground that the respondent had decided to file an appeal against the said order.
The High Court observed that respondent had not filed any appeal, and there was no order of any Court staying the order. Indisputably,
the order could not be ignored solely because according to the revenue, the said order is erroneous and is required to be set
aside. The High Court thus allowed the petition and directed to forthwith process refund including interest.
Cases Referred- Mr. Brij Mohan Mangla v. Union of India & Ors.: W.P.(C) 14234/2022 dated 23.02.2023

4

Section
107 and
Section
112

Petitioner failed to file
appeal within
condonable period,
demand stayed subject
to deposit of tax as
Tribunal not constituted

Laxman Barik v.
Joint Commissioner
of State Tax (Appeal)
[2023] 151
taxmann.com 161
(Orissa

There was delay in preferring appeal before appellate authority. The revenue contended that, Court may not be able to condone the
delay beyond four months, particularly when appellate authority has not been vested with discretion to condone the delay beyond one
month after lapse of three months from the date of communication of order.
The High Court held that since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate
tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand, the rest of
the demand was stayed during the pendency of the writ petition

5

Section
54 of
CGST
Act, 2017
and
Section
13 of
IGST Act,
2017

Market Research
Services not covered by
Intermediary services

Ohmi Industries Asia
(P.) Ltd v. Assistant
Commissioner,
Central Goods and
Services Tax [2023]
150 taxmann.com
409 (Delhi)

The petitioner provided services to an affiliated entity, OHMI Industries Ltd., Japan and entered into two separate agreements with
OHMI Japan, one for rendering Business Support Services and the other for providing Market Research Services. The petitioner filed
an application seeking refund of integrated tax on zero rated supply. The adjudicating authority rejected the refund application stating
that petitioner was providing support to the customers of OHMI, Japan directly meant that the petitioner was rendering intermediary
services. The High Court stated that the appellate authority failed to notice that the petitioner's appeal was confined only for refund of
integrated tax paid on invoices raised in respect of Market Research Services. The order passed by the adjudicating authority was
premised on the basis that petitioner was rendering services directly to the customers of OHMI, Japan. This was in the context of the
Business Support Services rendered by the petitioner to OHMI, Japan. In the present case, there was no dispute that petitioner had
rendered Market Research Services on its own; there was no allegation that it had arranged supply of services from a third party.
The High Court also referred to Circular dated 20.09.2021 (Circular No.159/15/2021-GST) and held that insofar as providing Market
Research Services is concerned, the petitioner cannot be held to be an intermediary. In view of the above, the petitions were allowed
and the impugned order was set aside. Case Referred- M/s Ernst And Young Limited v. Additional Commissioner, CGST
Appeals-II, Delhi and Anr.; W.P.(C) No.8600/2022 decided on 23.03.2023