| | | | | |
| | The petitioner had credit of CENVAT of a sum of Rs.10 lakh (approx) for the months of April, May, June, 2017. The law entitled assessee
to seek refund of CENVAT credit within a period of one year from year from the date of export. It all started with an application dated
25.10.2017 where the petitioner sought refund of CENVAT credit under Rule 5. With the onset of GST, the petitioner was required to make
a debit to the CENVAT credit account at the time of effecting the claim but the same was disabled and thus the assessee could not apply
for the refund. The petitioner thereafter filed an application for refund under Section 54 of the Act on 17.01.2019. The claim was rejected
as against which a first appeal was filed which also came to be rejected on 30.07.2020. The reasoning set out in the order of the appellate
authority was based on the provisions of Section 54 and the second proviso to Section 142(4) of the Act as well as a circular issued by
the Board on 15.03.2018. The petitioner while not challenging the order of the Appellate Commissioner, made a further representation on
28.08.2020. The impugned order had been passed on 03.11.2010 on the sole ground that, as the order of the first appellate authority
dated 30.07.2020 has attained finality, the question of refund does not arise.
The High Court held that the eligibility of the petitioner to refund on a substantive basis has itself, never been questioned. The denial was
based solely on a technical basis. That apart, the fact that Notification No.27/12 (which propounded credit to be debited from Cenvat
Account) had been held to propound an incorrect condition by the High Court as well as by the CESTAT ought to have merited
consideration with the authority. Instead he does not advert to this aspect of the matter at all. Further, the claim was fully supported by the
provisions of Section 142(3) of the Act. Thus, impugned order was held to wholly incorrect in law and wad held liable to be set aside | [2023] 150
taxmann.com
515 (Bombay)
Knowledge
Capital
Services (P.)
Ltd. v. Union
of India | The High Court observed that in the present case Petitioner had applied for a refund. The Petitioner received an acknowledgment under Form GST
RFD-02 with a Nil remark, meaning, thereby, the application for refund was acknowledged. There were no lacunae pointed out under the said
acknowledgment. No deficiency was pointed out; neither deficiency memo, as contemplated under Rule 90 (3) of the CGST Rules of 2017 in Form
GST RFD-03, was issued to the Petitioner. The Petitioner directly received Form GST RFD-08 under Rule 92 (3) of the CGST Rules of 2017 for
rejection of the application for refund. There were no reasons given in the said Form GST RFD-08, and it was stated that the Exports Defects Memo
Knowledge Capital-pdf.pdf is a file that is attached. However, the said file was not annexed to the reply affidavit.
The High Court observed that the deficiencies ought to have been communicated to the Petitioner under Form GST RFD -03 as per Rule 90 (3) of
the CGST Rules of 2017. Instead, these deficiencies were made a ground to issue a show cause notice for rejection of the refund. Thereafter,
application was rejected on the ground that no reply was received to the show cause notice. There was no opportunity given to the Petitioner to
rectify lacunae, and the deficiencies which were to be informed through Form GST RFD-03 were sent in a file attached in Form GST RFD08. This
deprived the Petitioner to submit a fresh refund application as contemplated under Rule 90 (3) of the CGST Rules of 2017. there was nonadherence
with the procedure envisaged under the Rules to use the correct Forms prescribed. Not only Form GST RFD-03 was not issued, but a file is sought
to be attached to Form GST RFD-08, which has a different Form. The matter was remanded by the High Court to decide afresh directing that If there
are deficiencies in the Petitioner's application, the same may be informed to the Petitioner as per Form-GST-RFD-03, and if not, the application be
processed as per law | |
| | Manpower
supplied to
Central/State
Government
for
housekeeping,
cleaning,
security data,
entry operator
not exempt | [2023] 150
taxmann.com
507 (AAARGUJARAT)
Sankalp
Facilities and
Management
Services (P.)
Ltd | The appellant contended that the manpower services provided by them to the Government authorities/ entities are exempted supplies as they are
provided by way of any activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution of India or in relation to any
function entrusted to a Municipality under Article 243W of the Constitution of India.
It was held that if the intention of the legislature was to exempt all the services provided to Central Government, State Government or Union Territory
or Local authority then there was no need to specify activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution
or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Even though the appellant is providing services to the
Government offices concerned, but they are in no way related to the function entrusted to a Panchayat under article 243G of the Constitution or
function entrusted to a Municipality under article 243 W of the Constitution which is carried out by the Government concerned. | |
| | Input Tax
Credit not
allowed for
Pre-Fabricated
Sheds as it is
an immovable
Property | [2023] 150
taxmann.com
506 (AARTELANGANA)
Sanghi
Enterprises | Applicant is constructing a Pre fabricated shed (‘PFS’) on land and it is intended to be used as a permanent structure for the purpose of conducting
business, which has beneficial enjoyment of the land on which it is being built. The applicant intends to use technology, for the construction of the
‘PFS’, which involves the application of pre-fabricated structures and also civil work for supporting the pre-fabricated structure and developing the
RCC platform of the ‘PFS’. If not for the purpose of beneficial enjoyment by way of conducting business on the RCC platform, the ‘PFS’ has no
separate existence. The ‘PFS’ being constructed is, therefore, an immovable property and the input tax credit is not admissible on the inward supplies,
which may include Works contract services, for its construction, as the credit of such tax comes under category of blocked credits as per section
17(5)(d) and section 17(5)(c) of the CGST/TGST Act’2017.
Cases Referred-Solid & Correct Engineering Works (2010) 252 ELT 481 (SC), Sirpur Paper Mills Ltd 97 ELT 3 (SC), f Triveni Engineering &
Industries Ltd. & Anr. V. Commissioner of Central Excise 2000 (120) ELT 273 (SC), n Quality Steel Tubes (P) Ltd. V. CCE, U.P. 1995 (75) ELT
17 (SC), Mittal Engineering Works (P) Ltd. V. CCE, Meerut 1996 (88) ELT 622 (SC), Circular No. 58/1/2002-CX dated 15/01/2002 | |
