S.No

Section

Case Subject

Case

Held

1

Section
75(4)

Personal hearing to
be afforded , even if
petitioner may have
signified 'No' in the
column to avail
personal hearing

B.L. Pahariya
Medical Store v.
State of U.P [2023]
153 taxmann.com
659 (Allahabad) 22-
08-23

High Court observed that once it has been laid down by way of a principle of law that a person/assessee is not required to request for
"opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an
adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail
personal hearing, would bear no legal consequence. It was further observed that even otherwise in the context of an assessment
order creating heavy civil liability, observing such minimal opportunity of hearing is a must.
Cases Referred- Bharat Mint & Allied Chemicals v. Commissioner Commercial Tax [2022] 136 taxmann.com 275

2

Section 107

Service of Order on
the counsel of the
petitioner is valid
and limitation to file
appeal commences
from that day

Manoj Steel
Traders v. State of
U.P. [2023] 153
taxmann.com 658
(Allahabad) 23-08-
23

From the perusal of provisions of Section 169, it is evident that order communicated on an Advocate will be deemed service upon
petitioner. As per facts of the case, order was duly communicated to the Advocate of petitioner. Petitioner argued that on 26-6-2019, an
application was moved for getting the certified copy of the order through another counsel and on that very day, the appeal was preferred.
However, on the pointed query as to how and under what mode the petitioner came to know about the passing the order dated
28-3-2018 on 26-6-2019 and as to why the application was moved on 26-6-2019 by another counsel, when the order dated 28-3-
2018 was already communicated to the petitioner's Advocate, petitioner could not reply the same and submitted that the appeal
filed below is silent on this point. The fact that it was not disputed at any stage and the only ground taken was that Shri Anil Jain,
Advocate has not informed the petitioner about the order dated 28-3-2018, it was held that the impugned order cannot be interfered with

3

Section 65

Audit U/Sec 65
cannot be
conducted for a
dealer subsequent
to cancellation of
registration

Tvl. Raja Stores v.
Assistant
Commissioner (ST
[2023] 153
taxmann.com 657
(Madras) 11-08-23

The contention of the petitioner was under Section 65, respondents were empowered to conduct audit if the concern was a registered
unit. As on the date, the petitioner's registration was cancelled, and he was an unregistered concern. But the contention of the respondent
was that the audit was being conducted for a period from 2017-2018, 2021-2022. Therefore, the respondent claimed that for the said
period, the petitioner was a registered firm and for the said period, the respondent was empowered to conduct audit.
The High Court observed that Section 65 specifically states that the audit can be conducted for 'any registered person', then it
ought to be construed as existence concern and the unregistered person would be exempted from the purview of the said
section. When the Section provides for periodical audit, the respondent having failed to conduct audit for all these years, suddenly they
cannot wake up and conduct an audit. Therefore, impugned order was quashed with liberty to the respondent to initiate assessment
proceedings under Sections 73 and 74 of the Act.

4

Section 107

Appellate Authority
even while
considering appeal
ex parte will have to
consider the
grounds raised in
the memorandum
of appea

Ganesh Kumar v.
State of Bihar
[2023] 153
taxmann.com 654
(Patna) 11-07-23

Appeal was dismissed that despite opportunity being granted to appellant to produce documents in his support, he did not produce them.
High Court observed that Appellate Authority has a duty and an obligation under the statute to look into the merits of the matter and
also examine the grounds raised by the appellant and decide the issue on merits. The Appellate Authority even while considering the
appeal ex parte will have to consider the grounds raised in the memorandum of appeal, deciding the appeal on merits, failing which it
would be abdicating its powers especially looking at the provisions where the Appellate Authority has been empowered to conduct such
further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised. Therefore, in view of the
above, since the appeal was decided ex-parte, therefore the appellate order was set aside.
Cases Referred- Purushottam Stores vs. The State of Bihar & Ors; CWJC No. 4349 of 2023 decided on 25.04.2023

5

Section 129

In case of shortage
of goods found in
checking during
movement, penalty
to be levied on the
shortage found and
not on entire
consignment

Usha Gupta v.
Assistant
Commissioner of
Revenue, Bureau
of Investigation
[2023] 153
taxmann.com 653
(Calcutta) 30-03-23

In the export invoice, buyer's license number was shown as buyer's order number. The High Court held that this cannot be treated as
a discrepancy because in the purchase order of the buyer the sales order number has been correctly shown as SG/2022-23/004.
Therefore, authorities could not have imposed 200% penalty on the entire consignment.
For the issue regarding shortage of quantity of goods observed in checking of goods during movement and levy of penalty on entire
consignment appeal and writ petition was disposed by setting aside the order passed by the appellate authority for levying
penalty on the entire consignment and the matter was remanded back to the appellate authority to recalculate to take note of
the order and recalculate the penalty in respect of shortage in quantity and over than quantity penalty shall be levied at 200%

S.No

Section

Case Subject

Case

Held

1

Section 2(6)
of IGST Act,
2017

Export of
Service and
ratio decidendi
of the
decisions
which were
rendered
during service
tax regime.

Bimal Jhunjhunwala v.
Assistant
Commissioner, CGST &
CX, BBD Bag I [2023]
153 taxmann.com 590
(Calcutta)

Appellant had challenged order dated 19.08.2022 by which application for refund was rejected. The order rejecting the refund stated that
from application filed, it was observed that importer had sent remittance through an agency (WISE US Inc.) located outside India, who
has remitted INR to the appellant and thus remittance was not received in foreign convertible exchange by the appellant. Therefore,
considering the definition "Export of Service" it violated condition (iv) of Section 2(6) of IGST Act, 2017. The impugned order while referring
to decisions, relied by the appellant, stated that those decisions are relating to erstwhile service tax regime and thus not applicable.
High Court held that since the issues have not been thoroughly adjudicated either by the Adjudicating Authority or by the Appellate
Authority, therefore matter was remanded back to consider all the issues in a holistic manner and take note of the ratio decidendi which
can be culled out in various decisions which have been relied by the appellant, more particularly the decisions which were
rendered during the service tax regime.

2

Section 5
and Section
6 of CGST
Act, 2017

Stay of
Scrutiny
Proceedings
as Audit
U/Sec 65
completed

Gopeshwar Iron & Steel
Works (P.) Ltd. v.
Superintendent, CGST
& CX, Range 1 [2023]
153 taxmann.com 589
(Calcutta)

Whether respondent authority can proceed further pursuant to notice issued under Section 61 of the CGST Act, 2017 particularly when
Audit under Section 65 has been completed and for the same period the DGGI has already issued summons and appellants have
submitted documents and the matter is pending before the DGGI.
High Court allowed the appeal and the notice issued under Section 61 was stayed till the disposal of the writ petition.

3

Section 5
and Section
6 of CGST
Act, 2017

Investigation
Proceedings
by Multiple
Authorities

Hanuman Enterprises
(Opc) (P.) Ltd. v.
Additional Director
General Directorate
General of GST
Intelligence [2023] 153
taxmann.com 565
(Delhi)

In the present matter, DGGI, Zonal Unit, Jaipur conducted an investigation in respect of the petitioner and it was stated by the petitioner
that the DGGI, Jaipur cannot conduct any investigation as the petitioner has already been investigated for the same period by Delhi State
Authority. It was further stated that petitioner's ITC was also blocked by the Delhi State Authority but the same has since been unblocked
on expiry of the stipulated period of one year. Delhi State Authorities who appeared before the Court stated that they have not conducted
any investigation and petitioner's ITC was blocked on account of a communication received from DGGI, Jaipur and petitioner's bank
account was blocked at the instance of DGGI, Chennai. DGGI Chennai stated that they have not investigated the petitioner but was
concerned with an entity named M/s Balaji Enterprises.
High Court held that in the aforesaid view, provisions of Section 6(2)(b) of the CGST Act are not attracted. In the present case, the
Delhi State Authority administratively concerned with the petitioner, has clarified that it has not carried out any investigation
but had issued orders regarding blocking of the account at the instance of DGGI, Chennai. DGGI, Chennai had also stated that it
has not carried out any investigation in respect of the petitioner company. The disclosed principal place of business of the petitioner was
the same as that of some other connected entities, which had investigated by DGGI, Chennai. Therefore, no advantage can be drawn by
the petitioner on that account. The petitioner had a separate tax registration. If any of the authorities found it necessary to
investigate the petitioner based on certain information, said investigation cannot be stopped or interdicted on account of
investigation conducted with respect of any other entity

4

Section 129
of CGST
Act, 2017

Applicability of
Amended
provisions of
Section 129 to
proceedings
initiated prior
to 1/1/2022

Mohin Khan v. State Of
C.G [2023] 153
taxmann.com 429
(Chhattisgarh)

In the present matter, petitioner had preferred an application for releasing of vehicle which was detained 04.01.2021, in the light of
amended provision of Section 129 of the GST Act, which came into force w.e.f. 1st January, 2022. Revenue contended that the said
amended provision are not applicable in the instant case as the, said amendment has been given prospective effect.
High Court accepted the contention that the amended provision of Section 129 of the GST Act, which has come into effect on 1st
January, 2022, cannot be made applicable in the case of the petitioner as the proceedings were initiated on 4th January 2021.
Therefore, the prayer of the petitioner for release of the vehicle was accordingly rejected

S.No

Section

Case Subject

Case

Held

1

Section 67
and Section
54

Refund of
Amount
collected
during the
search

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

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

2

Article 226
of
Constitution

Extraordinary
circumstances
not made out
for Article 226

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

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

3

Section 29
and Section
30

No
retrospective
Cancellation if
notice does
not provides
so

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

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

4

Section 29
and Section
30

Cancellation
of Registration
by a Cryptic
Notice and
Equally
Cryptic Order

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

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

S.No

Section

Case Subject

Case

Held

1

Section 73

Service of
Notice through
Portal is valid
service of
Notice

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

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

2

Section 129
and Section
130

Section 130
not required to
be preceded
by Section 129

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

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

3

Section 107

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

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

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

4

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

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

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

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

S.No

Section

Case Subject

Case

Held

1

Section
54

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

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

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

2

Section
129

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

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

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

3

Section
29 and
Section
30

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

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

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

4

Section
54

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

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

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