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

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

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

S.No

Section

Case Subject

Case

Held

1

Section
73 and
Rule 142

Service of
Notice on Email
ID not a valid
service of Notice

Shri Shyam baba
Edible Oils v. Chief
Commissioner
[2023] 151
taxmann.com 139
(Madhya Pradesh)

In the instant case, the service of show cause notice/order was challenged as the same was communicated through Email.
The High Court observed that a bare perusal of Rule 142 of CGST Rules, 2017 reveals that the only mode prescribed for communicating
the show-cause notice/order was by way of uploading the same on website of the revenue. The State in its reply had provided no material
to show that show-cause notice/order No.12 dated 10.06.2020 was uploaded on website of revenue. In fact, learned AAG conceded that
the show-cause notice/order was communicated to petitioner by Email and was not uploaded on website of the revenue. Therefore, the
High Court held that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act was not
followed by the revenue, and thus the impugned order was struck down. The revenue was allowed the liberty to follow the procedure
prescribed under Rule 142 of CGST Act by communicating the show-cause notice to the petitioner by appropriate mode thereafter to
proceed in accordance with law.

2

Section
29 and
section
30

Order passed
without giving
sufficient time to
the petitioner
and without
considering
reply of the
petitioner set
aside

Pakiza Steel LLP v.
Union of India [2023]
151 taxmann.com
113 (Bombay

In the instant case, Petitioner had received a show cause notice on 5th September 2022 to show cause by 6 September 2022 that why the
registration should not be cancelled and by the said order, registration of the Petitioner was suspended with effect from that date. The
petitioner contended that although he did not have time to adequately prepare yet he submitted the reply and without considering the reply,
the final order came to be passed. It was further contended that although the impugned order referred to the reply, but it did consider the
same and the Authority proceeded to pass an order on entirely different ground on which the Petitioner did not get opportunity
The High Court observing that the impugned order had been passed in above circumstances directed that the petitioner be given an
opportunity before the final order of cancellation of registration is made However, they did not restore registration and registration continued
to remain suspended as per show cause notice.

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

Naarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P. [2023]
151 taxmann.com
112 (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. The High Court further observed that the judgement in the matter of M/s. Vadivel Pyrotech
Private Ltd. v. The Assistant Commissioner, (2022 U.P.T.C. 1769) was limited to the facts of that case and do not lay down any proposition
of law which restricts the exercise of jurisdiction under Section 74 upon issuance of notice under Section 61(3) 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

Cash-credit
facility is not a
debt and
therefore, not
attachable.

Naarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P. [2023]
151 taxmann.com
112 (Allahabad)

The High Court held that cash-credit facility is not a debt and therefore, it cannot be made attachable and the Court was bound by the
above-stated precedent but cash-credit facility is not a debt and therefore, it cannot be made attachable. This Court is bound by the abovestated precedent; however Rule 159 clearly gives adequate power to the petitioner to file objection for releasing the bank account or, in the
instant case cash-credit facility, therefore when there was an efficacious relief in the statute itself, therefore, the High Court was of the view
that the petitioner should adopt such efficacious relief and Court was not inclined to afford any relief under Article 226 of the Constitution.
Cases Referred- Jugal Kishore Das v. Union of India reported in 2013 SCC Online Cal 19941, Radha Krishan Industries v. State of
Himachal Pradesh reported in 2021 (48) GSTL 113 (SC), Valerius Industries v. Union of India reported in 2019 (30) GSTL 15 (Guj),
Mardia Chemicals Limited v. Union of India [2004] 4 SCC 311, Overseas Bank v. Ashok Shaw Mill reported in [2009] 8 SCC 366.