Part-112-One Pager Snapshot to the Latest Cases on Section 29, 30, 54, 75 and 129 of CGST Act, 2017

-Amendment to Rule 89(4)(C) to definition of Export would apply prospectively.
– Right for refund of the accumulated ITC stands crystalised on the date when subject goods are exported.
– ITC relatable to the turnover of a period must be ascertained in terms of the rules as in force during the said period.
-Notice issued with time, place and venue of hearing mentioning “NA” was contrary to provisions of Section 75(4).
-Seven Days for issuance of notice U/Sec 129(3) have to be calculated from the date of detention and not from the following date
-Reasons are heart and soul of the order and non-communication of same itself amounts to denial of reasonable opportunity of hearing

S.No

Section

Case Subject

Case

Held

1

Section
54

Amendment to Rule
89(4)(C) to definition
of Export would apply
prospectively.
- Right for refund of
the accumulated ITC
stands crystalised on
the date when subject
goods are exported.
- ITC relatable to the
turnover of a period
must be ascertained
in terms of the rules as
in force during the
said period.

Indian Herbal Store (P.)
Ltd. v. Union of India
[2023] 155 taxmann.com
189 (Delhi)

The bone of contention amended Rule 89(4)(C) w.e.f. 23-03-2020 wherein export turnover would mean the value, which is 1.5 times
the value of the similar goods domestically supplied by the same, or similarly placed supplier, was added as a condition for computing
the turnover of zero-rated supplies. Petitioner had filed refund applications for quarters comprising 1-10-2018 to 30-9-2019. The said
applications were rejected by orders dated 15-9-2020, 24-9-2020, 22-10-2020 and 5-11-2020. The said applications were rejected as
computation of eligible export turnover was not compliant with amended Rule 89(4)(C). Petitioner contended that Sub-rule (4)(C) of
Rule 89, which was substituted with effect from 23-3-2020, had no application for refund in respect of exports made prior to the said
date.
The Court observed that the right for refund of the accumulated ITC stands crystalised on the date when subject goods are exported.
This is also reflected in Section 54 of the CGST Act. In terms of Section 54(1) of the CGST Act, the application for refund is required
to be made "before the expiry of two years from the relevant date in such form and manner as may be prescribed". The Court further
observed that the expression 'turnover' must necessarily read to mean the period during which the turnover is affected, that is, the
date when the supplies are made. It would thus follow that ITC relatable to the turnover of a period must-unless it is indicated otherwise
either expressly or by necessary implication-be ascertained in terms of the rules as in force during the said period. Thus, it was held
that the appellate authority erred in applying Rule 89(4)(C) of the Rules as amended with effect from 23-3-2020 for computing the
export turnover for the purposes of determining the refund as claimed by the petitioner. The High Court further stated that We do not
consider it necessary to examine the challenge in view of the decision of the Hon'ble Karnataka High Court in M/s Tonbo Imaging
India Pvt. Ltd. v. Union of India and Ors., decided on 16-2-2023

2

Section
75

Notice issued with
time, place and venue
of hearing mentioning
“NA” was contrary to
provisions of Section
75(4)

Sumit Enterprises v.
State of U.P. [2023] 155
taxmann.com 190
(Allahabad)

Notice was issued under Section 74 wherein the date by which the reply was to be submitted was mentioned as 26.07.2021, however,
date of personal hearing, time of personal hearing and venue of personal hearing were not indicated and simply the word "NA" was
transcribed. Even in the reminder notice sent to the petitioner, in the column of date of personal hearing, time of personal hearing and
venue of personal hearing, "NA" was transcribed.
The Court observed that provisions of Section 75(4) was interpreted in Party Time Hospitality Prop. Smt. Punita Gupta Lko. v. State
Of U.P. & 2 Others (Writ Tax No.176 of 2023) decided on 28.08.2023 wherein it was held that compliance of Section 75(4) of GST
Act is mandatory. Thus, the Court quashed the order as it was contrary to the mandate of Section 75(4) and was violative of principles
of natural justice.

3

Section
129

Seven Days for
issuance of notice
U/Sec 129(3) have to
be calculated from the
date of detention and
not from the following
date

Tvl. V. V. Iron and Steels
v. State Tax Officer [2023]
155 taxmann.com 220
(Madras)

The goods/conveyance were intercepted on 30-8-2023 and order for physical verification/inspection of goods/conveyance and
documents was issued in Form GST Mov-02 on the same date i.e., on 30-8-2023. The notice was received by the petitioner on 8-9-
2023. The petitioner contended that the impugned notice in Form GST Mov-07 was issued beyond the period of limitation prescribed
under section 129(3). The revenue contended that the notice was dispatched to the petitioner through e-mail at about 5.54 p.m. on 7-
9-2023 and on the same date i.e., on 7-9-2023, the notice was also affixed on the vehicle.
The Court observed that provision of Section 129(3) has not used the expression "within seven days from the date of detention or
seizure". The language in Section 129(3) is clear. Notice specifying payment of penalty has to be issued within seven days of detention
or seizure of goods. Issuance of notice within seven days has to be calculated from the date on which seizure was to be effected and
not from the following date. Thus, the last date for issuance of the impugned notice would have expired on 6-9-2023. However, the
impugned notice has been dispatched through e-mail only on the following date i.e., on 7-9-2023 after the expiry of limitation.
Therefore, on this ground alone, the impugned notice was quashed

4

Section
29 and
Section
30

Reasons are heart
and soul of the order
and noncommunication of
same itself amounts to
denial of reasonable
opportunity of hearing

Suresh Industries v.
Superintendent Range VI
[2023] 155 taxmann.com
221 (Gujarat)

The petitioner stated that the reason given in the SCN was vague and did not refer to any particular facts so as to enable the petitioner
to give reply. The respondent never verified registered premises of petitioner and hence that ground mentioned in SCN was incorrect.
The Court observed that reasons are heart and soul of the order and non-communication of same itself amounts to denial of
reasonable opportunity of hearing, resulting in miscarriage of justice. Thus, it was held that by issuing a cryptic SCN, authorities had
violated the principles of natural justice. From SCN, reasons for cancellation were not decipherable and thus, it was set aside.
Cases Referred- Aggarwal Dyeing and Printing Works v. State of Gujarat., reported in [2022] 137 taxmann.com 332 (Gujarat), A.K.
Kraipak v. Union of India, (1970) 1 SCR 45. The Hon'ble Supreme Court vide judgments in the cases of Ravi Yashwant Bhoir v. District
Collector Raigad, (2012) 4 SCC 407, Sant Lal Gupta v. Modern Cooperative Grouop Housing Society Limited, (2010) 13 SCC
336; Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496; Abdul Ghaffar v. State of Bihar, (2008) 3 SCC
258

Part-105-One Pager Snapshot to the Latest Cases on Section 16, Section 29, Section 30, Rule 142 and Section 62

-Registration cancelled after 31-12-2022 but within the period of amnesty scheme eligible for amnesty scheme of revocation of cancelled registration
-Cancellation cannot be retrospective when the same was applied by assessee from the date of closure of business.
-ITC of the assessee under the GST regime cannot be denied merely on the difference of GSTR 2A and 3B
-As the Order visible to the petitioner on GSTN portal is not complete copy of the order, thus it must be accepted in law that the impugned order does not contain reasons.
-Notice U/Sec 46 to be issued before passing order U/Sec 62.

S.No

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

Registration cancelled
after 31-12-2022 but
within the period of
amnesty scheme
eligible for amnesty
scheme of revocation
of cancelled
registration

Rajeev Kumar v.
Principal
Commissioner of
Central Goods and
Services Tax,
Ranchi [2023] 155
taxmann.com 54
(Jharkhand) (12-09-
2023)

The Court stated that Government of India had issued Notification No. 03/2023~Central Tax dated 31-3-2023 and extended the time up
to 30-6-2023, but the extension is granted to taxpayers granting time whose registration was cancelled on or before 31-12-2022. The
petitioner's cancellation was on 11-5-2023, hence the benefits of the said notification could not be availed by the petitioner. If the cancellation
was set aside and the GST is revoked the petitioner is willing to pay the GST along with late fee.
The Court gave anxious consideration and observed that had the cancellation of registration been prior to 31-12-2022, then petitioner
would have come within the time prescribed under the said notification. But the consideration for extension was pending during that period,
hence the Court was of the considered view that the petitioner was entitled to the benefit. Therefore, the Court allowed the writ petition and
the directed to restore the petitioner's GST registration number.
Case Referred- Tvl. Suguna Cut piece v. Appellate Deputy Commissioner (ST) (GST) (Mad)

2

Section
29 and
Section
30

Cancellation cannot
be retrospective when
the same was applied
by assessee from the
date of closure of
business

Krishna Traders v.
Commissioner of
Central Goods and
Service Tax [2023]
155 taxmann.com 52
(Delhi) (20-09-2023)

Petitioner had closed business with effect from 31-3-2022 and had, applied for cancellation of GST registration. Petitioner after closure of
business, shifted from New Delhi to Dehradun. SCN was issued calling upon the petitioner to furnish additional information in connection
with his application. Petitioner claimed that he did not receive the said notice as he had shifted to Dehradun. Since said SCN was not
responded, Proper Officer rejected application for cancellation. Thereafter, Proper Officer issued a fresh SCN proposing to cancel
petitioner's registration on account of failure to file tax returns for a continuous period of six months and cancelled registration with
retrospective effect. The impugned order included a tabular statement indicating that no tax was found due and payable by the petitioner.
The Court observed that cancellation of the GST registration was not an issue but the issue was related to cancellation of the GST
registration with retrospective effect. The Court directed that cancellation of petitioner's GST registration shall take effect from 31-3-2022

3

Section
16

ITC of the assessee
under the GST regime
cannot be denied
merely on the
difference of GSTR
2A and 3B

Henna Medicals v.
State Tax Officer
[2023] 155
taxmann.com 29
(Kerala) (19-09-2023

Impugned order was passed against the petitioner on the ground that there was a difference between GSTR 2A and GSTR 3B.
The Court took into consideration earlier judgement passed in the matter of Diya Agencies v. The State Tax Officer and reference made
in the said judgement to the judgement of Supreme Court in the case of The State of Karnataka v. M/s Ecom Gill Coffee Trading Private
Limited 2023 (3) TMI 533 SC as well as Calcutta High Court judgment in Suncraft Energy Private Limited v. The Assistant Commissioner,
State Tax, Ballygunge Charge [Judgment dated 2-8-2023 in MAT No. 1218/2023]. The Court relied upon the principle that ITC of the
assessee under the GST regime cannot be denied merely on the difference of GSTR 2A and 3B and thus petition was allowed and matter
was remitted back to Assessing Authority to examine evidence of petitioner irrespective of Form GSTR 2A and after examination of evidence
placed by the petitioner, order to be passed in accordance with the law.
Case Referred- Diya Agencies v. The State Tax Officer [Judgment dated 12-9-2023 in WPC 29769/2023]

4

Rule 142

As the Order visible to
the petitioner on
GSTN portal is not
complete copy of the
order, thus it must be
accepted in law that
the impugned order
does not contain
reasons.

[2022] 142
taxmann.com 470
(Allahabad)
Dauji Ispat (P.) Ltd.
v. State of U.P (10-
11-2021

Contention of the petitioner that the copy of the order uploaded on the GSTN portal and as is visible to the petitioner does not
mention/disclose the reasons therefor. The revenue admitted that due to some error copy of the impugned order visible to the petitioner on
the GSTN portal is not the complete copy of the order.
The Cour observed that it must be accepted in law that the impugned order does not contain reasons. This conclusion was drawn as
unless the complete copy of the order containing the reasons was served on the petitioner, he may never have any right to challenge the
same before any forum including the appellate forum. The fact that the Assessing Officer may have available to it another copy of the same
order which may contain reasons therefor, may be of no help to the Revenue Authority as such copy of the order was not served on the
petitioner. Therefore, it cannot be relied upon to any extent. The Court thus held that order served on petitioner was wholly defective and
lacking in vital aspect namely reasons for the conclusions drawn therein. Accordingly order DRC-07 dated 20-7-2021 was set aside and
the matter remitted to the Assessing Officer for fresh consideration

5

Section
62

Notice U/Sec 46 to be
issued before passing
order U/Sec 62.

[2022] 140
taxmann.com 405
(Jharkhand)
Vinman
Constructions Ltd.
v. State of
Jharkhand (22-02-
2022

Petitioner amongst other contentions contended that no notice to file return under Section 46 was served before passing order U/Sec 62.
The Court observed that requirement of notice before proceeding to pass order under section 62 has been laid down by Legislature so
that defaulter may have an opportunity to file return in case return has not been filed. It was also observed that there is a salutary purpose
for service of notice under section 46 before the proper officer proceeds to pass assessment order under section 62. The court also referred
to CBIC Circular dated 24-12-2019 which provides for service of notice under section 46 before the proper officer proceeds to assess the
tax liability of a return defaulter under section 62 of the Act. Moreover, sub-section (2) of section 62 further provides that if within thirty days
valid return has been filed, assessment order shall be deemed to have been withdrawn, the reason being that in case the return has not
been filed even after proper service of notice under section 46 of the Act, the penal consequences flows out of such an order passed under
section 62. The Court thus, set aside the order passed U/Sec 62 as no notice was served U/Sec 46 for filing of returns

Part-104-One Pager Snapshot to the Latest Cases on Section Section 29, Section 30, Section 112, Section 73 and Section 74 and Rule 142

-Refund in pursuance of Appellate Authority order cannot be withheld because revenue intends to file an appeal but Tribunal has not been formed

-Purpose of SCN is to enable the noticee to respond to the allegations. Since SCN was incapable of eliciting any meaningful response, any order passed pursuant to such a SCN would fall foul of principles of natural justice

-Summary in electronic form is required to be furnished along with the SCN

-No Penalty in the matter of Classification Disputes

S.No

Section

CAse Subject

Case

Held

1

Section
112

Refund in pursuance
of Appellate Authority
order cannot be
withheld because
revenue intends to file
an appeal but Tribunal
has not been formed

Zones Corporate
Solutions (P.) Ltd. v.
Commissioner of
Central Goods and
Service Tax [2023]
155 taxmann.com 8
(Delhi)

The order of the Appellate Authority was in favour of the Petitioner wherein it was directed to grant the refund to the petitioner. Revenue
contended refund has not been granted since the competent authority in pursuance to the opinion of review branch has directed filing of an
appeal before Appellate Tribunal challenging order in appeal passed by Commissioner (Appeals) and owing to non-functioning of the GST
Appellate Tribunal which was beyond the control, such appeal could not be filed.
The Court observed that though nearly a year has passed, yet no proceeding has been filed challenging the said order till date. The
petitioner cannot be asked to wait endlessly for the revenue to challenge the order dated 23rd July, 2019. Department was directed to
refund the amount as directed by the Commissioner (Appeals)

2

Section
29 and
Section
30

Purpose of SCN is to
enable the noticee to
respond to the
allegations. Since
SCN was incapable of
eliciting any
meaningful response,
any order passed
pursuant to such a
SCN would fall foul of
principles of natural
justice

Sachin Upadhyay v.
Addl.
Commissioner,
Central Goods and
Services Tax,
Appeal-I [2023] 155
taxmann.com 5
(Delhi)

SCN was issued by the proper officer proposing to cancel the petitioner's GST registration on accountof “Non compliance of any specified
provisions in the GST Act or the Rules made thereunder as may be prescribed." The Proper Officer proceeded to cancel the petitioner's
GST registration from retrospective date on the ground that petitioner had not uploaded the bank details. The tabular statement set out in
the said order dated 3-1-2022 indicates that no tax or penalty is due from the petitioner. The petitioner thereafter, filed an application for
revocation of the cancellation order. The petitioner asserted that bank details were uploaded on GST portal prior to issuance of SCN.
Pursuant to application for revocation of cancellation, Proper Officer issued a SCN proposing to reject the petitioner's application for “Reason
for revocation of cancellation - Reason for revocation of cancellation-." The court thereafter observed that “To add insult to injury, the
petitioner's application for revocation of cancellation of the GST registration was rejected on the ground that the petitioner had not replied
to the show cause notice within the time specified therein.”. The petitioner preferred an appeal under section 107 and the same was also
rejected. Court observed that “impugned order dated 23-5-2023 is equally cryptic and vague. It is evident from the reasons for rejection of
the petitioner's appeal as stated in the impugned order dated 23-5-2023, that the said order has been passed without application of mind.”
The Court observed that SCN did not provide any clue as to the reason for proposing cancellation of the petitioner's GST registration.
SCN which do not specifically state reason for proposing adverse actions cannot be sustained. The purpose of SCN is to enable the noticee
to respond to the allegations. Since the said SCN was incapable of eliciting any meaningful response, it did not meet the standards required
for a SCN. Any order passed pursuant to such a show cause notice would fall foul of the principles of natural justice. The Court further
observed that the reasons for proposing to reject the petitioner's application for revocation of cancelled registration were also vague and
unintelligible. This Court was at loss to understand the reason for proposing to reject the petitioner's application as articulated by the Proper
Officer. As stated above, the impugned SCN failed to disclose the reason for proposing cancellation of the petitioner's GST registration and
therefore, the impugned order cancelling the petitioner's registration falls foul of the principles of natural justice. It was thus set aside and
petition was allowed with costs, quantified at Rs. 5,000/-

3

Rule 142

Summary in electronic
form is required to be
furnished along with
the SCN

Shubham Gupta v.
Additional
Commissioner/
Joint Commissioner
CGST [2023] 155
taxmann.com 4
(Delhi)

Petitioner’s grievance was that although it has received the SCN dated 2-8-2023 proposing imposition of penalty, the summary of
proposed demand has not been communicated electronically in FORM GST DRC-01 & FORM GST DRC-02 as required under Rule 142(1).
TheCourt observed that any notice issued under the relevant sections including Section 74 is required to be accompanied by a summary
thereof, electronically in FORM GST DRC-01 & FORM GST DRC-02. The learned counsel appearing for the revenue submitted that a
summary has not been issued in the requisite form and that the proper officer shall issue the same in compliance with the said provisions.
The Court held that although summary in the electronic form is required to be furnished along with the show cause notice, furnishing of the
said summary at this stage would be substantial compliance with the said provisions

4

Section
73 and
Section
74

No Penalty in the
matter of
Classification
Disputes

Atlantic Care
Chemicals (P.) Ltd.
v. Superintendent
Central Tax &
Central Excise
[2023] 155
taxmann.com 3
(Kerala)

During assessment period from April 2020 to June 2021, the petitioner manufactured hand sanitizers and classified under the Tariff
heading 30049088 of HSN and declared tax liability @ 12% applicable to medicament and paid tax as per the returns filed. The return filed
by the petitioner got accepted by the jurisdictional CGST authority. However, later on 5-7-2022 action was initiated under section 74(1) by
issuing a SCN that the classification was under Hand Sanitizers (alcohol based) under HSN 3808 exigible to GST @ 18%. In pursuant to
the said notice, order in original was passed and petitioner paid the assessed amount along with the interest in pursuant to the said order.
The petitioner was not disputing the said liability, he was only aggrieved by the initiation of the penalty proceedings.
The court referred to the judgement in Chakkiath Brothers v. Assistant Commissioner [2014 (3) KLT 222], wherein it was held that for a
mere dispute in classification, no penalty proceedings can be initiated and Court observed that since in the present case also there was a
dispute of classification and the authority had not considered the said judgment.Thus, the matter was remanded back for a fresh order in
accordance with law, after taking into consideration the Judgment in the case Chakkiath Brothers v. Assistant Commissioner (supra)

Part-57-One Pager Snapshot to the Latest Cases

-Exercise of Re-course under Rule 159(5) before exercising the writ option
-Can Claim of ITC in GSTR-3B since Form in ITC-02 was not live on the portal be justified
-Cryptic SCN for cancellation of Registration

S.No

Section

Case Subject

Case

Held

1

Section
83

Exercise of
Re-course
under Rule
159(5)
before
exercising
the writ
option

Smt. Lalita v.
Central Goods
And Service
Tax [2023]
153
taxmann.com
171
(Allahabad)

An investigation was initiated for availing and passing on wrong Input Tax Credit by creating various firms without supply of goods. During the course of
investigation an order dated 2-4-2022 was passed attaching the Bank account of the petitioner. Since attachment order under section 83 ceases to have
effect after expiry of one year as contemplated under section 83 (2) of the CGST Act, 2017 petitioner moved application requesting for the de-attachment
of the Bank account on 3-4-2023. Petitioner then sent another letter on 18-4-2023 and responding to the letter, the authority passed impugned order on
21-4-2023 attaching the Bank account of the petitioner. It was also submitted that impugned order dated 21-4-2023 was invalid having been issued
without DIN number in violation of Circular dated 5-11-20219 and 23-12-2019. It was further contended that order impugned proceeds on the premise
that proceeding under Section 122 of the Act have been launched against the petitioner through no show cause notice in form DRC-01 under Rule 142
has been issued so for.
The High Court observed that the petitioner approached the Court without availing the remedy available under Rule 159(5) of CGST Rules, 2017. Further
the Bank account of the petitioner remained under attachment since long once under order dated 2-4-2022 and thereafter under the order dated 21-4-
2023 but partially the petitioner herself was held to be responsible for not taking recourse to Rule 159 (5) of the Rules early. The High Court thus, directed
the petitioner to approach the authority under Rule 159 (5) by filing objections

2

Section
18

Can Claim
of ITC in
GSTR-3B
since Form
in ITC-02
was not live
on the
portal be
justified

Tikona Infinet
(P.) Ltd. v.
State of U.P.
[2023] 153
taxmann.com
170
(Allahabad)

The petitioner entered into a Business Transfer Agreement on 17-8-2017 with another Company i.e. M/s Tikona Digital Network Pvt. Ltd. under which
the business was transferred to the petitioner. M/s Tikona Digital Network (TDA) had accumulated ITC balance of more than Rs. 3,1313,68,997/- which
was unutilized. The petitioner attempted to transfer ITC as per the procedure prescribed under Rule 41 of the CGST Rules, 2017, however functionality
for filing Form ITC-02 was not available on the common portal. The non availability was communicated to the jurisdictional Assessing Authority. Faced
with serious working capital issues, the petitioner manually accepted and availed the ITC of Rs. 3,13,68,997/-. After a lapse of five years, the petitioner
was served with a show cause notice dated 28-2-2023 requiring the petitioner to serve the differential ITC of Rs. 2,88,35,905.60/- along with interest
and penalty. The total ITC available in Form GSTR-2A is Rs. 2,22,24,921.08/- whereas petitioner availed the ITC of Rs. 5,10,60,826.68/-. The petitioner
submitted the reply but impugned order creating the demand was passed.
The High Court found that the petitioner has been non suited on the ground that Form ITC-02 for transfer of input tax credit was not available
on the GST Portal which was in nascent stage during the initial months after its implementation on 1-7-2017 and it was incumbent upon the
petitioner to have raised a proper grievance on the GST portal help-desk and ought to have waited for the relevant Form to go live on the GST
portal instead of making illegal adjustment by use of the Form GSTR-3B of the transferor and the transferee company and mere shortage of
working capital cannot be an excuse to bypass the legal procedure laid down under the law. Further the high court was of the view that the stand
of the Respondent No. 2, for rejecting the claim of the petitioner in the wake of the admitted fact that the GST common portal was not online cannot be
justified. Therefore, the order dated 17-4-2023 was set aside with liberty to the Respondent No. 2 to pass fresh order taking into consideration
the objections of the petitioner and also affording it opportunity of hearing, strictly in accordance with law

3

Section
29 and
30

Cryptic SCN
for
cancellation
of
Registration

Bhati
Enterprise v.
Union of India
[2023] 153
taxmann.com
167 (Gujarat)

SCN was issued by the department on the ground that the registration was obtained by means of fraud, wilfull misstatement or suppression of facts. The
petitioner contended that the impugned SCN violated the principles of natural justice inasmuch as the show-cause notice was vague and cryptic and did
not state the exact case against the petitioner firm that how the petitioner committed fraud, wilful misstatement or suppression of facts; while obtaining
the registration as no documents were supplied to the petitioner alongwith the said show-cause notice so as to enable the petitioner to file a reply.
The High Court quashed the impugned SCN being without reasons and cryptic with a liberty to issue a fresh SCN.
Cases Referred-Sarvoday Impex v. Union of India rendered a decision on 07.06.2023 in Special Civil Application No. 903 of 2023

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

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