Part-66-One Pager Snapshot to the Latest Cases

S.No

Section

Case Subject

Case

Held

1

Section 73

Service of
Notice through
Portal is valid
service of
Notice

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

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

2

Section 129
and Section
130

Section 130
not required to
be preceded
by Section 129

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

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

3

Section 107

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

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

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

4

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

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

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

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