Part-160-One Pager Snapshot to Cases on Section 9, 16, 56 and 107 of CGST Act, 2017

-Section 9- It was difficult to accept that petitioner could collect any GST from its consumers after paragraph 4 of the circular No. 34 Dated 01-03-2018 has been set aside but since petitioners Transfer Petition was pending before Hon’ble Supreme Court and tagged with batch of other matters, including the one arising from decision of Gujarat High Court, consideration of the present petition was deferred

-Section 107-Notwithstanding order was passed in the name of Driver but consignor can also file appeal against order U/Sec 129 as person aggrieved by any decision passed may prefer appeal to Appellate Authority U/Sec 107

-Section 56-Interest @ 6% is payable for the period commencing from a date immediately after expiry of sixty days from the date of an application under Section 54(1), however, interest @ 9% payable for period covered under proviso to Section 56, if a person’s claim is a subject matter of further proceedings, which finally culminate in favour of applicant

-Section 16- Merely on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of the input tax credit

Part-157-One Pager Snapshot to Cases on Section 16, 29, 74, 107,125,129 of CGST Act, 2017

Part-113-One Pager Snapshot to the Latest Cases on Section 16(4), 107, 129 of CGST Act, 2017 and Section 10 of IGST Act, 2017

-Statement of the Driver for goods to be unloaded at other place
-Goods not enroute the correct route to destination
-Power to seize only to be exercised when goods not accompanying proper documents
-Tax paid under CGST and SGST cannot be claimed as ITC in IGST
-Mere declaration by supplier to treat tax paid under CGST and SGST as IGST not sufficient as Revenue already distributed
-Since invoice pertained to 17-18 but writ filed in 2021, claim of ITC barred by time limit provided in enabling provision in Section 16(4)
-When High Court, at outset, stated that petitioner had an alternative statutory remedy, it ought not to have proceeded to make observations on the merits

S.No

Section

Case Subject

Case

Held

1

Section
129

-Statement of the
Driver for goods to be
unloaded at other
place
-Goods not enroute
the correct route to
destination
-Power to seize only
to be exercised when
goods not
accompanying proper
documents

Om Prakash Kuldeep
Kumar v. Additional
Commissioner Grade-2
[2023] 155 taxmann.com
249 (Allahabad)

The Court observed that the goods in question were sold by the registered dealer along with genuine documents i.e. tax invoices
and e-way bills. At the time of interception it was alleged that driver of the vehicle made statement that goods were to be unloaded at
the place which is not mentioned in the tax invoice but at Mainpuri itself. But perusal of the statement of the truck driver, which was
prepared and uploaded by the revenue authority in GST MOV-01, it appeared that not a single word had been whispered in respect
of the goods in question to be unloaded at the place which was not shown in the tax invoice accompanying the goods.
The Court noted that it was alleged that since goods along with truck were not on the route of its destination, therefore, there was
intention to evade tax. The Court observed that under the GST Act, there was no specific provision which bound the selling dealer
to disclose the route to be taken during transportation of goods or while goods are in transit however there was a provision under VAT
Act to disclose the rout during transportation of goods to reach its final destination. Once the legislature itself in its wisdom had chosen
to delete the said provision, the Court opined that authorities were not correct in passing seizure order even if the vehicle was not on
regular route or on different route.
The power of detention as well as seizure can be exercised only when the goods were not accompanying with the genuine
documents provided under the Act. The genuineness of the documents has not been disputed at any stage. Observation/allegation
was made that at the time of interception/detention of the goods in question, the driver of the vehicle had only produced one tax invoice
and eway bill dated 16-3-2020 but none of the documents as prescribed under the Act was referred or brought on record before the
Court in support of the said contention. Once the documents accompanying the goods were found to be genuine the goods ought not
to have been seized.
Cases Referred- Gujrat High Court in Special Civil Application No. 19549 of 2021 (M/s Karnataka Traders v. State of Gujrat) decided
on 6-1-2022, Telengana High Court in W.P. No. 2869 of 2021, Vijay Metal v. Deputy Commercial Tax Officer, decided on 28-4-2021

2

Section
10 of
IGST
Act,
2017 and
Section
16(4) of
CGST
Act,
2017

-Tax paid under
CGST and SGST
cannot be claimed as
ITC in IGST
-Mere declaration by
supplier to treat tax
paid under CGST and
SGST as IGST not
sufficient as Revenue
already distributed
-Since invoice
pertained to 17-18 but
writ filed in 2021,
claim of ITC barred by
time limit provided in
enabling provision in
Section 16(4)

Vishwanath Iron Store v.
Union of India [2023] 155
taxmann.com 248 (Patna)

The petitioner firm was registered in the state of Bihar. They purchased goods in auction from East Central Railways. The invoice
levied CGST and SGST. The petitioner contended that when tax consultant was apprised of the delivery/sale invoice, it was pointed
out that since goods were taken possession of in Jharkhand and moved to outside the State, what was to be levied was IGST and not
CGST and SGST and in the above circumstances, the petitioner was denied the input tax credit, is the claim raised.
The Court observed that admittedly, goods were delivered at Jharkhand and sale was shown to be a local sale, as evidenced from
delivery/sale release order itself. If the petitioner had intended to move the material out of the State, the petitioner should have specified
it and also insisted that the sale be treated as an Inter-State one. The auction though conducted in Samastipur, the sale was to be
effected from Jharkhand and unless the sale occasioned the movement of goods outside the State, it could not be termed as an InterState sale. Further, there was absolutely nothing to prove in the writ petition as well that the movement of goods to the State of Bihar.
The mere statement of Railways that the invoice issued should be deemed to have been issued under the IGST Act, could not enable
the petitioner to seek input tax credit. The transaction between the Railways and the petitioner would not regulate the tax liability and
in any event, the tax levied and collected as CGST and SGST would have been credited to the respective head of account. There can
be no understanding between the parties to the transaction that what has been paid as SGST and CGST is to be deemed to be paid
as IGST without due compliance of the provisions of the taxation enactment. Such understanding cannot also regulate an input tax
credit without such credit being shown in the ledger account maintained by the assessee with the Department.
It was also noticed that the invoice was one issued in assessment year 2017-18. The petitioner had filed the writ petition in the year
2021 when the enabling provision in Section 16(4) for claiming input tax credit would not have been available in any event. The present
invoice is dated 23-10-2017 and hence, ITC was to be claimed before 28-11-2017 or furnishing of the annual return for the year 2017-
18, whichever is earlier. The Court thus held that there was absolutely no possibility of the ITC being availed of at this point

3

Section
107

When High Court, at
outset, stated that
petitioner had an
alternative statutory
remedy, it ought not to
have proceeded to
make observations on
the merits

Dhan Prakash Gupta v.
Central Goods and
Service Tax Department
[2023] 155 taxmann.com
227 (SC)

The High Court in the given matter had stated that petitioner had alternative remedy but also further stated that since material based
upon which assessment was completed was taken from URLs owned by petitioner and petitioner was also confronted with the material
so gathered and that material was, in any case, in public domain, therefore there was no justification in principles of natural justice
being violated.
The Apex Court held that when the High Court, at outset, stated that the petitioner had an alternative statutory remedy, it ought not
to have proceeded to make observations on the merits of the case and thereafter, state that the petitioner would not be precluded
from pursuing alternative remedies. It was further stated that any observation made on merits of the case in the impugned order shall
not come in the way of the appellate authority considering the case of the petitioner on merits

Part-63-One Pager Snapshot to the Latest Cases

-Acceptance of Manual Appeal
-Deposit of Tax by Taxpayer on two different dates i.e. even after the date of Search did not by itself constitute Self-Assessment
-Refund sanctioned earlier can be reopened under Section 74

S.No

Section

CAse Subject

Case

Held

1

Section
107

Acceptance
of Manual
Appeal

Sakthi Steel Industries
India (P.) Ltd. v. AAC
(State Tax) [2023] 153
taxmann.com 362 (AP)

Petitioner had filed an appeal before appellate authority through official website, but since appellate authority had not been mapped i.e., constituted,
digital mode of filing of appeal was not accepted and numbered. Thereafter, petitioner filed appeal manually and same was pending. Considering
respective submissions and in the interest of justice, High Court directed to consider the appeal and register if it is otherwise in order.

2

Section
74

Deposit of
Tax by
Taxpayer on
two different
dates i.e.
even after
the date of
Search did
not by itself
constitute
SelfAssessment
but should
contain
material on
record of
being
voluntary
and revenue
having
applied its
mind to be
treated as
SelfAssessment

Parsvnath Traders v.
Principal
Commissioner, CGST
[2023] 153
taxmann.com 361
(Punjab & Haryana)

Facts-Petitioner stated that on 05.02.2021, search was conducted under Section 67 and petitioner was forced to deposit a sum of Rs.20 lacs on
the same day. They also deposited an additional amount of Rs.30,70,216/- on 16.02.2021. The respondents did not issue any SCN or order
determining its tax liability. Petitioner made request in writing to the respondents to refund the amount of Rs.50,70,216/- but the same was rejected
by order dated 18.05.2021. Revenue stated that petitioner deposited the amount through DRC-03 and were voluntary payments amounting to
admission. It was denied that the petitioner was forced to deposit the amount of Rs.50.70 lacs.
-Section 74(5) is not a statutory sanction for advance payment-Section 74(5) cannot be considered as a statutory sanction for advance tax
payment, pending final determination because that would be contrary to scheme of assessment as set out under Section 74. Section 74(6) provides
an opportunity for assessee and/or to revenue to ascertain proper amount of tax, interest and penalty and even in cases where there might have
been a shadow of wrong declaration, wrong availment or utilisation of ITC, or short payment of tax, there can be closure of proceedings at that
stage itself on the basis of either 'self-ascertainment' and acceptance of same by revenue or vice-a-versa.
-Deposit of Tax by Taxpayer on two different dates i.e. even after the date of Search did not by itself constitute Self-Assessment but
should contain material on record of being voluntary and revenue having applied its mind to be treated as Self-Assessment- There should
have been a material on record to show that petitioner had in fact, accepted the ascertainment made by it and the revenue had applied its mind
and arrived at the conclusion that 'self-ascertainment' by the assessee was adequate/inadequate. The petitioner on the contrary is shown to have
consistently contested its liability to make payment of the tax. The 'self-ascertainment' which is contemplated under Section 74(5) of the Act, 2017
is in the nature of ' self-assessment' and amounts to a determination by it which is unconditional and not as in the present case when shortly after
depositing the amount Rs.50.70 lacs, the petitioner approached the revenue for refund.
No Crystallised liability on record- Neither any crystalised liability was shown to be existing nor any SCN had been issued either at that time or
even till now and amount of Rs.50.70 lacs was recovered from it during investigation and has been retained by it.
Held-The petitioner shortly after depositing the amount of Rs.50.70 lacs had approached the revenue for refund of the same therefore,
ascertainment as contemplated under Section 74(5) which amounts to an unconditional determination and in the nature of 'self
assessment' is not attracted and hence, the deposit could not be stated to be voluntary deposit by any stretch of imagination,
irrespective of the fact that deposits were made in the form of GST DRC-03.
Cases Referred- M/s Bhumi Associate v. UOI (2021) 46 GSTL 36, Century Metal Recycling Pvt. Ltd.v.UOI, 2009 (234) E.L.T. 234 (P&H), Concepts
Global Impex v. UOI, 2019(365) E.L.T. 32 (P&H), Century Knitters (India) Ltd. v. UOI, 2013 (293) E.L.T. 504 (P&H), William E Connor Associates
& Sourcing Pvt Ltd v. UOI, Diwakar Enterprises Pvt Ltd v. Commissioner of CGST and Others, 2023(98) GST 322, Modern Insecticides Ltd and
Others v. Commissioner, CGST Others

3

Section
74

Refund
sanctioned
earlier can
be reopened
under
Section 74

Ganesh Ores (P.) Ltd.
v. State of Odisha
[2022] 137
taxmann.com 164
(SC

Refund was granted to the Petitioner. Thereafter notice was issued under section 74(1). Petitioner contended that it was open to the department
to file an appeal under section 107(1) but having missed the time limit for doing so, the Department cannot indirectly seek to reopen the refund
already granted pursuant to an adjudication by resorting to section 74. High Court held that there was no limitation placed in the statute that an
order that is otherwise appealable under section 107 cannot be sought to be revisited under section 74(1) and that it does not appear to make any
distinction between refund orders that have been passed without an adjudication and those which have been passed after adjudication. There is
nothing in section 74(1) to indicate that refund granted after adjudication cannot be sought to be reopened. SLP filed before Apex Court against
the judgement of the High Court (Ganesh Ores (P.) Ltd. v. State of Odisha [2022] 137 taxmann.com 163) was dismissed

Part-60-One Pager Snapshot to the Latest Cases

-Principle of Natural Justice
-Amount deposited under Section 73(5) to be considered as pre-deposit in appeal
-Binding Precedent of Orders passed by Appellate Authority
-Recording of Statement in presence of Advocate

S.No

Section

Case Subject

Case

Held

1

Section
73

Principle of
Natural
Justice

Dr. Ambedakar
Enterprisese v.
Union of India
[2023] 153
taxmann.com
323
(Allahabad)

SCN was issued on 10-6-2022, date for personal hearing was fixed on 24-6-2022 whereas date for final reply was fixed thereafter on 9-7-2022. The
petitioner could not appear on the date fixed for personal hearing. The order impugned was passed about five months thereafter on 30-11-2022.
The High Court observed that Principle of natural justice was breached. The adjudicating authority ought to have fixed reasonable date for filing reply and
for personal hearing. The petitioner may have been at fault in not filing reply on the date fixed and having not filed any application thereafter. Yet, the
adjudicating authority chose not to pass any order and did not fix any other date for hearing in the matter for a long period of five months. However, there
was fault on the part of the petitioner too in neither filing appeal within limitation nor approaching the Court within reasonable time. The writ petition was
disposed that in case petitioner deposits a sum of Rs. 75,000/- before adjudicating authority, the impugned order shall stand set aside.

2

Section
107

Amount
deposited
under
Section
73(5) to be
considered
as predeposit
against
appeal

Vinod Metal v.
State of
Maharashtra
[2023] 153
taxmann.com
322 (Bombay)

Petitioner intended to filed appeal under section 107 of the CGST Act and contended that the amount as deposited by the Petitioner under sub-section (5)
of Section 73 of the CGST Act needs to be accepted towards fulfillment of such pre-deposit, as the said amount is already made, it cannot be contended
by the Revenue, that such deposit is not available, when it comes to the compliance of sub-section (6) of Section 107 of the CGST Act.
The High Court observed that on a holistic reading of Section 73, an amount deposited under sub-section (5) Section 73 is not an amount, which is deposited
in pursuance of any demand or any assessment order. It is a voluntary deposit and which is subject to all contentions of assessee. Also such deposit would
be accounted in the event of any the liability of the assessee to pay tax, and would be integral to the assessment. Thus, when it comes to the compliance
of mandatory payment of the tax, being a condition precedent for filing of appeal, principle as laid down in Supreme Court in VVF (India) Ltd. would become
applicable considering that the provisions of the CGST Act on pre-deposit are not too different from provisions of the MVAT Act, which fell for consideration
of the Supreme Court. For the above reasons, High Court held that voluntary deposit as made under protest under the provisions of Section 73(5),
cannot be excluded from consideration for the purpose of compliance as mandated by sub-section (6) of Section 107 of the CGST Act.
Case Referred- VVF (India) Ltd. v. State of Maharashtra (2023) 4 Centax 421/2023 (72) G.S.T.L. 444 (SC)

3

Section
107

Binding
Precedent
of Orders
passed by
Appellate
Authority
over
Assessing
Authority

Jacobs
Solutions India
(P.) Ltd. v.
Union of India
[2023] 153
taxmann.com
321 (Bombay)

In pursuance of order dated 11 October 2022 passed in an appeal, petitioner filed a refund claim on 29 November 2022. On such refund claim, Assistant
Commissioner of CGST & CX (Central Excise) issued a SCN dated 28 December 2022, calling upon the petitioner to show cause as to why refund claim
ought not to be rejected on the ground of non disclosure of invoice details of FIRCs. The Assistant Commissioner by the impugned order dated 27 January
2023 rejected the petitioner's refund claim whereby he confirmed the show cause notice. It is against such order the petitioner filed petition before the Court.
The High Court observed that when the entire fact finding exercise was subjected to the scrutiny in an appeal resulting in the appeal being allowed, then
only remedy for the department against the appeal order was to seek review. It was not open to Assistant Commissioner to pass the impugned order which
amounted to sitting in appeal over the order passed by the Additional Commissioner of Appeals. The Assistant Commissioner could not have passed
the impugned order, of the nature he has passed as he was certainly bound by the orders passed by the Additional Commissioner (Appeals).
Cases Referred-Globus Petroadditions (P.) Ltd. v. UOI[2022]140 taxmann.com 569(Bom),UOI v. Kamlakshi Finance Corpn. Ltd.1992taxmann.com16(SC)

4

Section
70

Recording
of
Statement
in
presence
of
Advocate

Prakash Kumar
Rameshbhai
Patel v. State of
Maharashtra
[2023] 153
taxmann.com
273 (Bombay)

The petitioner prayed for the relief that petitioner's statement be recorded in the presence of his Advocate i.e. at a visible but not audible distance, during
his interrogation. The revenue had no objection to the presence of the petitioner's Advocate, at the time of recording of the petitioner's statement, provided
that he is at a visible distance, but not at an audible distance.
The High Court allowed the petition and, as such, permit the petitioner's Advocate to remain present at a visible, but not at an audible distance
at the time of recording of the petitioner's statement

Part-59-One Pager Snapshot to the Latest Cases

-Rejection of Appeal on technical ground
-Buyer to establish his own credentials and not that of the seller

S.No

Section

Case Subject

Case

Held

1

Section
107

Rejection
of Appeal
on
technical
ground

Rama Shanker
Modi v. A C,
CGST & CE
[2023] 153
taxmann.com
326 (Calcutta)

The petitioner filed the appeal electronically within time but the appeal of the petitioner was dismissed on the technical ground of filing certified copy of the
order against which appeal was filed as beyond time.
The High Court observed that the appeal of the petitioner was dismissed only on the technical ground without going into the merit and thus the order was
set aside and the matter was remanded back to the appellate authority concerned to accept the certified copy filed by the petitioner beyond time and
consider and dispose of the appeal in question in accordance with law

2

Section
129 and
Section
130

Buyer to
establish
his own
credentials
and not
that of the
seller

Arhaan
Ferrous And
Non-Ferrous
Solutions (P.)
Ltd. v. Deputy
Assistant
Commissioner1(ST) [2023]
153
taxmann.com
325 (Andhra
Pradesh

Facts of the Case-The proper officer intercepted the lorries on 12-6-2023 which were found carrying iron scrap covered by bill and e-way bills. They
revealed that the consignor without having place of business at Vijayawada, transported the goods. According to the proper officer, the enquiry conducted
by Joint Commissioner (ST), Kurnool, revealed that the consignor was not doing business at the given address at Kurnool and there was no such person
and therefore, his GST registration was suspended w.e.f. 13-6-2023 and enquiry was initiated against consignor by issuing notice of confiscation in Form
GST MOV-10 under section 130 of the CGST/APGST Act, 2017. The contention of the Revenue was that since the existence and business activities of the
consignor were highly doubtful, confiscation proceedings U/s 130 of the CGST/APGST Act, 2017 can be launched directly against consignor without
reference to the petitioners and as the petitioner claims to be the purchaser from the consignor, he has to establish that he is a bonafide purchaser from
consignor for valuable consideration by paying the due tax without knowing the credentials of consignor by participating in the enquiry proceedings initiated
against the consignor.
Question before the Court-Whether Proper Officer can confiscate the goods of petitioner without initiating any proceedings against him U/s 129
but initiating proceedings U/s 130 of CGST/APGST Act against the consignor on the ground of dubious credentials of consignor.
Observation- Proper Officer may initiate proceedings against consignor U/s 130 in view of his absence in the given address and not holding any business
premises at Vijayawada, however, he cannot confiscate goods of petitioner merely on the ground that he happens to purchase goods from consignor. Even
assuming petitioner partakes in the enquiry proceedings against the consignor, his responsibility will be limited to the extent of establishing
a) That he bonafidely purchased goods from the consignor for consideration by verifying GST registration of consignor available on official web portal.
b) That was not aware of the credentials of the consignor.
c) Mode of payment of consideration.
d) Mode of receiving of goods from the consignor through authenticated documents.
Petitioner cannot be
a) Expected to speak about the business activities of the consignor and
b) Expected to speak about whether consignor obtained GST registration by producing fake documents.
Held- In essence, petitioner has to establish their own credentials but not of the consignor. In that view, the proper officer was held incorrect in roping
the petitioners in the proceedings initiated against the consignor without initiating independent proceedings U/s 129 of CGST/APGST Act against
the petitioners. As the petitioner claimed to have purchased goods from the consignor whose physical existence in the given address was highly doubtful
as per the enquiry conducted by the Joint Commissioner (ST), Kurnool, the petitioner was thus held to owe a responsibility to prove the genuineness of the
transactions between him and the consignor. Therefore, the proper officer was held entitled to initiate proceedings U/s 129 of CGST/APGST Act
against the petitioners and conduct enquiry by giving opportunity to the petitioners to establish their case. The writ petitions were accordingly
disposed of giving liberty to the proper officer to initiate proceedings against the petitioner’s U/s 129 of CGST/APGST Act, 2017 and conduct enquiry by
giving an opportunity of hearing to the petitioners and pass appropriate orders in accordance with governing law and rules.
Cases Referred- Rajeev Traders v. Union of India [2022] 142 taxmann.com 420 (Kar.), Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112
taxmann.com 370 (Guj.)/2020(33) G.S.T.L 513 (Guj.)

Part-58-One Pager Snapshot to the Latest Cases

-Ex-Parte Order set aside as notice not served
-Condonation of delay in filing Appeal beyond stipulated period
-Opportunity to Re-appear granted subject to deposit of cost of non-appearance of Rs 100000/- for each of the 3 years

S.No

Section

Case Subject

Case

Held

1

Section
107

Ex-Parte
Order set
aside as
notice not
served

Mahalaxmi v. Joint
Commissioner of
Goods & Service
Tax [2023] 153
taxmann.com 250
(Karnataka)

The High Court observed that after receipt of the notice in the appeal proceedings, the appellant and his authorized representative had appeared
before the appellate authority and had sought adjournment, the appellate authority did not give the next date of hearing, but further notice was
issued to the appellant and the authorized representative. It is the case of the petitioner that such further notice issued to the petitioner were not
served upon them.
The High Court thus set side, the impugned order on the short ground that the same is passed in violation of principles of natural justice

2

Section
107

Condonation
of delay in
filing of
Appeal for
Revocation of
Cancelled
Registration

Jaipur Textiles v.
Appellate Authority/
Joint
Commissioner of
GST [2023] 153
taxmann.com 248
(Madras

GST registration of the petitioner was cancelled on 2-1-2023. However, appeal filed by the petitioner before Appellate Authority was beyond the
condonable period of 30 days. Appellate Commissioner thus rejected the appeal.
The High Court observed that no useful purpose will be served by keeping the assessee outside the purview of the GST regime without
reviving their GST registration, as the assessee will continue to carry on business. By not revoking the cancellation of the GST
registration, the Government will lose the revenue. Therefore, considering the above, Court condoned the delay in filing of appeal.
Case Referred- Suguna Cutpiece Centre v. The Appellate Joint Commissioner of GST (ST) (GST)

3

Section
107

Condonation
of delay in
filing Appeal
beyond
stipulated
period

Nalla Mohammed
Hameedabanu v.
Appellate Deputy
Commissioner (ST)
[2023] 153
taxmann.com 247
(Madras)

The petitioner was required to file an appeal by 26-5-2023. The last date for filing an application to condone the delay would have expired on 26-
6-2023. However, the petitioner filed an appeal belatedly on 3-7-2023 in the portal.
The High Court observed that the petitioner appeared to be a small-time trader. The Officers acting under the provisions of the GST Acts cannot
entertain appeal beyond the period of limitation and therefore, they rightly rejected the appeal. However, since petitioner was a small-time
trader, who wished to challenge the assessment order, High Court allowed thus allowed petition by directing to admit the appeal subject
to the petitioner depositing a sum of Rs. 50,000/- over and above, the amount already deposited by the petitioner towards pre-deposit

4

Section
161

Opportunity
to appear
before
Assessing
Officer
granted
subject to
Petitioner
depositing
cost of nonappearance
Rs 100000/-
for each of
the 3 years

Vadivel Pyro Works
v. State Tax Officer
(ST) (FAC) [2023]
153 taxmann.com
246 (Madras)

The petitioner already had been granted three opportunities, as per Section 73, therefore, respondent did not consider the adjournment letter and
proceeded to pass the assessment order. The petitioner also had filed a rectification petition under section 161 along with all the records. The
petitioner relied on the proviso to section 161 and submitted that before passing any orders opportunity should be granted to the assessee.
The High Court observed that even though the officer was not empowered to grant further adjournment, he ought to have recorded the adjournment
letter submitted by the petitioner, reject the same and thereafter ought to have passed an order. Even though the respondents had no power to
grant adjournment, the court had the power to direct the respondents to grant one more opportunity by taking into the fact of voluminous transaction.
Therefore, the court was of the considered opinion that the petitioner was entitled to one more opportunity. The High Court also observed that
filing application under Section 161 with all records, also indicated that the petitioner was bonafide in seeking time to furnish all the records and
thus the Court was of the considered opinion that the petitioner was entitled to one more opportunity. The High Court observed that while passing
the rectification order, the respondent has not followed the proviso stated under section 161. Therefore, Court was of the considered opinion that
before passing the order, respondent should have granted personal hearing to the petitioner. Therefore, while passing rectification order there is
violation of principles of natural justice. Thus, the impugned orders were set aside but since the tax liability is huge, the State cannot be
made to suffer by the attitude of the petitioner as well, therefore, in the interest of justice, the petitioner was directed to pay Rs. 1,00,000/-
(Rupees One Lakh only) for each year. On such deposit, the respondent was required to re-do the assessment.
Case Referred- Pinstar Automotive India Private Limited v. Additional Commissioner, in W.P.No.8493 of 2023, dated 20-3-2023, reported
in 2023(3) TMI 1168,

Part-56-One Pager Snapshot to the Latest Cases

-Intimation in DRC-05 is an appealable order
-Failure to do through a statutory remedy cannot be permitted to be done through a writ petition
-Refund allowed for Tax Excess Paid @ 18% instead of 0.1%
-Transitional Credit denied as Return for 30.06.2017 was having Ni Balance

S.No

Section

Case Subject

Case

Held

1

Section
107

Intimation in
DRC-05 is an
appealable
order

Savita Oil
Technologies Ltd
v. Union of India
[2023] 152
taxmann.com 577

The petitioners had deposited the disputed tax under protest and were issued an intimation in Form GST DRC-05. The petitioner approached
to contend that intimation issued in Form GST DRC-05 by the adjudicating authority itself is an appealable order as the CGST Act would clearly
provide. It is therefore, contended that as the portal is not allowing filing of appeal, it will render the remedy of an appeal illusory.
The High Court observed that petitioners have a legitimate right to file an appeal being aggrieved by intimations issued in Form DRC-05.
Merely because electronic portal does not make a provision for filing of an appeal against an intimation issued in Form DRC-05, the petitioners
cannot be faulted and for such technical reason, it cannot be countenanced that a statutory right of appeal available to the petitioners is
rendered otiose. In the above circumstances, the high court held that till an appropriate provision is made for acceptance of such
appeal electronically, the filing of such appeal is required to be permitted by the manual method.

2

Section
107

Failure to do
through a
statutory
remedy
cannot be
permitted to
be done
through a writ
petition

Marvel
Associates
v. State Tax
officer [2023] 152
taxmann.com 576
(Kera

The petitioner's grievance was that, as time period prescribed under Section 107 (4) of the CSGT Act to challenge the impugned orders by
way of a statutory appeal had lapsed, the petitioner was left remediless. Therefore, the present writ petition was filed.
The High Court observed that without taking recourse to the above statutory remedies, the petitioner assailed the impugned orders in the writ
petition, that too after a year. What the petitioner had failed to do directly through a statutory remedy cannot be permitted to be done indirectly
through a writ petition, that too at its own sweet will and pleasure. A Constitutional Court is not an open Forum to be approached at the whims
and caprice of a litigant. The Court’s extraordinary power can be exercised sparingly and in exceptional cases. The High Court did not find
any such circumstances in the present case to entertain the writ petition under Article 226 of the Constitution of India. The writ
petition was held to be groundless and was thus, dismissed.

3

Section
54

Refund
allowed for
Tax Excess
Paid @ 18%
instead of
0.1%

Tagros
Chemicals India
(P.) Ltd.
v. Union of India
[2023] 152
taxmann.com 570
(Gujarat)

The petitioner had supplied goods at the concessional rate of IGST at the rate of 0.1% in terms of Notification No.41/2017 - Integrated Tax
(Rate) dated 23.10.2017. The petitioner thereafter supplied goods to the buyer on payment of full duty (under an error) of IGST at the rate of
18% instead of concessional rate of 0.1%. Thereafter, the petitioner issued credit note dated 16.03.2020 for the excess amount of tax to the
buyer. The details of credit note were duly mentioned in GSTR-1 return for the month of March, 2020, however, the petitioner could not reduce
the turnover and GST liability as there were no outward supplies during the said month and subsequent month. The refund application was
however rejected without assigning any reason.
The High Court relied upon the judgement of Hon’ble Apex Court in the matter of Bonanzo Engineering & Chemical Pvt. Ltd. v.
Commissioner of Central Excise reported in 2012(4) SCC 771 (Principle- Assessee paid duties on the goods which are exempted from
payment does not mean that the goods would become goods liable for the duty under the Act) and Share Medical Care v. Union of India
reported in 2007(4) SCC, 573 (Principle- even if an applicant does not claim benefit under a particular notification at the initial stage, he is
not debarred, prohibited or estopped from claiming such benefit at a later stage). The refund was thus allowed and the impugned order
set aside

4

Section
140

Transitional
Credit denied
as Return for
30.06.2017
was having Ni
Balance

Tvl. Devesh
Spices v.
Assistant
Commissioner
(CT)/(ST) [2023]
152 taxmann.com
553 (Madras)

The petitioner carried forward credit of Rs.1,36,563/- through TRAN-1. However, she did not have any excess credit for the year 2017.
The High Court observed that on perusal of the relevant record for the month ending June, 2017, the entry under the head "excess input tax
credit" at column 11 was shown as '0.00'. Thus, contention of the petitioner that she had a credit limit was held to be incorrect and thus petitioner
was held no to be entitled for any relief.

Part-52-One Pager Snapshot to the Latest Cases

-Condonation of appeal filed beyond the time period

-Recovery of the demand after expiry of the Normal period for filing of Appeal but before extended period for which condonation is allowed

-Levy of Penalty dropped for failure to extend validity of Eway Bill

-No Date, Time and Venue of personal hearing mentioned and for columns 3,4&5 of Date, Time & Venue, NA being mentioned in SCN

S.No

Section

Case Subject

Case

Held

1

Section
107

Condonation of
appeal filed
beyond the
time period

Penuel Nexus (P.) Ltd.
v. Additional
Commissioner,
Headquarters (Appeals)
[2023]152 taxmann.com
208 (Kerala)

The matter was related to cancellation of registration and the issue before the High court was about condonation of time period for filing an
appeal be filed beyond the time period prescribed under Section 107 (4) of CGST Act, 2017.
The High Court while dismissing the petition by holding it time barred held that CGST Act is a special statute and a self-contained code by
itself. It is trite, that the Limitation Act will apply only if it is extended to the special statute. It is also rudimentary that the provisions of a
fiscal statute have to be strictly construed and interpreted

2

Section
78 and
Section
107

Recovery of
the demand
after expiry of
the Normal
period for filing
of Appeal but
before
extended
period for
which
condonation is
allowed

Stallion Energy (P.) Ltd.
v. Union of India [2023]
152 taxmann.com 211
(Gujarat)

The adjudication order came to be passed on 02.03.2022 and petitioner was directed to make the payment of total amount of Rs.56,14,388/-
. Thereafter order of provisional attachment of property under Section 83 came to be passed on 16.06.2022 and out of the total amount of
Rs.56,14,388, Rs.46 lakhs came to be withdrawn by the respondents from the bank account of petitioner maintained with HDFC Bank. The
petitioner preferred an appeal on 04.07.2022 under Section 107 of the Act before the Appellate Authority and as there was delay in preferring
the said appeal and therefore petitioner had filed separate application for condonation of delay. It was also stated that as per the provisions
contained in Section 107 of the Act, the petitioner was required to pre-deposit 10% of the amount of tax before the Appellate Authority but
the respondents had already withdrew an amount of Rs.46 lakh from the account of the petitioner maintained with HDFC Bank. The
petitioner, therefore, urged that respondents be directed to refund the remaining amount i.e. Rs.42,44,664/-.
The High Court while observing that the condonation application is till pending held that the contention of the petitioner was
misconceived in view of the provisions contained in Section 73(9) read with Sections 78 and 107 of the Act and If appeal filed by
the petitioner is allowed by the Appellate Authority, it is always open for the petitioner to make such request before the Appellate
Authority that direction be issued to the respondents to refund the amount.

3

Section
129

Levy of Penalty
dropped for
failure to
extend validity
of Eway Bill

Pushpa Devi Jain v.
Assistant
Commissioner of
Revenue [2023] 152
taxmann.com 239
(Calcutta)

The goods were detained as e-way bill had expired at 11:59 hours on 22nd April, 2022 and it had to be revalidated by 8 a.m. on 23rd April,
2022. However, said date was a Saturday and the vehicle was intercepted at 8.52 a.m. There was no other allegation against the petitioner.
The High Court considered the peculiar facts of the case and observed that there was no lack of bona fide on the part of the appellant to
state that there was wilful misconduct committed by the appellant while transporting the goods. There was every possibility that even if
an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill,
in all probabilities, would not have been revalidated within the eight hours period. Therefore, the appeal was allowed and the order
was set aside by holding that considering the facts and circumstances of the case, the authority could not have imposed penalty on the
appellant

4

Section
73

No Date, Time
and Venue of
personal
hearing
mentioned and
for columns
3,4&5 of Date,
Time & Venue,
NA being
mentio

Agarwal Wheels (P.)
Ltd.
v. State of Madhya
Pradesh [2023] 152
taxmann.com 243
(Madhya Pradesh)

SCN was issued making mention about personal hearing to the effect that "you may appear before the undersigned for personal hearing
either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below",
but no date, time and venue for personal hearing was shown in the notice.
The High Court observed that SCN issued itself shows that before passing final order dated 24.08.2022, the intention of the respondents
was to give personal hearing to the petitioner, but in the table given, captioned as "Details of personal hearing etc.", no Date,
Time and Venue of personal hearing was shown and in front of columns 3,4&5 of Date, Time and Venue, NA was mentioned,
which is sufficient to infer that no personal hearing was given to the petitioner before passing the impugned order dated
24.08.2022. The impugned order was held to be non-sustainable and was quashed and the matter was remitted back for passing order
afresh.
Case Referred- Bharat Mint & Allied Chemicals v. Commissioner of Commercial Tax, 2022 (59) G.S.T.L. 394 (All.)

Snapshot-43-Snapshot of Latest GST Cases

-Since the petitioner had already availed alternate remedy, therefore the High Court declined to interfere
-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
-Principle of Natural Justice should have been followed and petitioner should have been informed that application could be rejected without admission
-Opportunity of being heard be granted to the assessee

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