Part-50-One Pager Snapshot to the Latest Cases

-Looking to the peculiar circumstances penalty was not leviable for Expired Eway Bill and High Court recognized that Rule 138(10) when provides for extension of eway bill also mandates to look at the conduct of the party for levy of penalty

-Non-Constitution of Tribunal

-High Court Mandates levy of penalty of Rs 50000 for generation of new Eway Bill without extending the validity of previous Eway Bill

S.No

Section

Case Subject

Case

Held

1

Section
129

Looking to the
peculiar
circumstances
penalty was
not leviable for
Expired Eway
Bill and High
Court
recognized
that Rule
138(10) when
provides for
extension of
eway bill also
mandates to
look at the
conduct of the
party for levy
of penalty

Progressive
Metals (P.) Ltd.
v. Deputy
Commissioner,
State Tax
[2023] 152
taxmann.com
158 (Calcutta)

Vehicle along with the goods entered the Durgapur industrial belt within the validity of the e-way bill. The vehicle was intercepted on 9th May, 2022
at 9:35 AM at Durgapur and the vehicle was detained along with the goods on the ground that the e-way bill had expired on 8th May, 2022 at 11:59
AM. The explanation given by the appellant was that it was a Sunday and the consignee had given instructions to unload the goods at a different
location within the same area and in this regard the appellant had produced e-mail sent by the consignee stating that they had given instructions
subsequently to unload the goods at a different location within the area to which the goods were sent as per the e-way bill.
The High Court observed that there was no intention on the part of the appellant to evade payment of tax. In any event, in terms of rule 138 of the
WBGST Rules, if an e-way bill had expired, the transporter had 08 hours time to seek for extension of the time stipulated in the e-way bill. If that
allowance is given, at the time when the vehicle along with the goods were intercepted, it was delayed by about 01 hour and 35 minutes. The particular
details given in e-way bill will show that area Durgapur has also been mentioned. It is not disputed that vehicle was within the Durgapur industrial belt
though not at Panagarh. Thus, considering the peculiar facts and circumstances of the case and in the absence of any material produced
by the revenue to doubt the bona fides of the appellant, High Court held that penalty should not have been imposed in this case.
The revenue relied upon the judgement of Hon'ble Supreme Court in Chairman, SEBI v. Shriram Mutual Fund & Anr. reported at [2006] 5 SCC 361
for the proposition that the intention of the authority committing such violation becomes immaterial when there is a contravention of the statutory
obligation.
The High Court observed that third proviso to Rule 138(10) states that the validity of e-way bill may be extended within 8 hours from the time of its
expiry. Thus, the rules give certain latitude and therefore, the conduct of the transporter was required to be examined bearing in mind that the rule
itself provides for extension of the validity period of the e-way bill and the transporter has been given a latitude of 8 hours to seek for such extension.
If that benefit was to be granted to the appellant, then the delay would be about 1 hour and 35 minutes. There is no other allegation against the
appellant. Therefore, considering the peculiar facts and circumstances of the case, the High Court held that this was not a case, where
penalty that too 200% penalty should have been imposed.

2

Section
112

NonConstitution of
Tribunal

Essar Steel
Suppliers v.
Union of India
[2023] 152
taxmann.com
128 (Bombay)

n the instant case, petition under Article 226 of the Constitution of India was filed to challenge an Order-in-Appeal dated 21 April, 2021 passed by
the Commissioner of Central Taxes, Central Excise & Service Tax (Appeals), Raigarh. Against the said order, an appeal was provided under Section
112 of the Central Goods and Service Tax Act, 2017 to the Appellate Tribunal. However, till today, the Tribunal has not been set up.
The High Court relying upon its Judgement in Rochem India Pvt. Ltd. v. The Union of India & Ors.) dated 8 February 2023 held that the
period of filing the Appeal will stand extended as indicated in Clause 4.2 of the Circular dated 18 March 2020 and impugned order will not
be given effect until two weeks after the period prescribed for filing an appeal as under Clause 4.2 of Circular dated 18 March 2020 is over

3

Section
129

High Court
Mandates levy
of penalty of
Rs 50000 for
generation of
new Eway Bill
without
extending the
validity of
previous
Eway Bill

Bitumix India
LLP v. Deputy
Commissioner
of Revenue,
State Tax.
[2023] 152
taxmann.com
122 (Calcutta)

The goods which were being transported by the appellants to Assam were covered by e-Way Bill which was valid upto 18th March, 2022. On account
of the breakdown of the vehicle the goods did not move outside the territory of the State of West Bengal and was stationed at Dankuni on 18.03.2022.
The consignee in the meantime had sold the goods which were in transit to another purchaser in Assam and the goods were transported by the same
vehicle after generating a new e-Way Bill on 22.03.2022. The vehicle was detained on 25.03.2022 and order of penalty has been passed on the
ground of first e-Way Bill on 18.03.2022 had not been renewed/extended by the appellants.
The High Court observed that it is not in dispute on the date and time and the goods were intercepted that was on 25.03.2022 the appellants had a
valid e-Way Bill. The only mistake committed by the appellants was of not renewing the e-Way Bill which expired on 18.03.2022. This in opinion of
the High Court should not have been done since the goods were sold in transit. Therefore, violation had been committed by the appellants but
the violation was not as grave enough to call for imposition of penalty at the rate of 200% as on the date when the vehicle was intercepted
the goods were covered by a valid e- Way Bill which satisfies the requirement under Section 129 of the Act. However, the High Court further
held that that the mistake committed by the appellants in not renewing the earlier e-Way Bill which expired on 18.03.2022 the appellants should be
put on terms and thus the order passed was modified with the direction to the appellants to pay a penalty of Rs.50,000/- which will include
both CGST and WBGST instead of 200% penalty as imposed by the authorities

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

Snapshot-27-Snapshot of Latest GST Cases

-Validity of Assessment order based on amount mentioned in Eway Bill
-Recovery of demand due to non-constitution of Tribunal
-Revocation of Cancelled Registration
-Provisional attachment ceases to be operative after expiry of one year

S.No

Section

Case Subject

Case

Held

1

Section
74

Assessment order
based upon
amount
mentioned in
eway bill being
different from
Invoice quashed
considering the
human error in
generating Eway
Bill

Jena Trading and
Co. v. CT and GST
Officer [2023] 150
taxmann.com 339
(Orissa

In the case, petitioner had generated a tax invoice for an amount of Rs.1,97,047.86. As, he did not have the computer, the same was a self
generated document. Further an e-Way Bill was prepared, wherein the total taxable amount was shown to be Rs.197047086.00. This figure
was a typographical mistake. Therefore, though the figure is tallying but the paise has been entered in rupees, which has created difficulty
on the part of the petitioner, because he is a small dealer and cannot have taxable amount of Rs.197047086.00.
The department contended that the assessment order had been passed by the assessing authority under Section 74 of the OGST Act with
intimation through DRC-01A for the cause of less filing of return for the period of 2019-20, as per the information under possession of the
authority, and whereas, no response received against the above mentioned intimation for which online notice in DRC-01 was issued and, as
such, no response was received on above.
The High Court held there was a palpable error in the way bill, which may be construed to be an human error. If this fact was to be brought
to the notice of the assessing authority, the same could be considered in accordance with law and fresh assessment order could be passed.
Thus the High Court quashed the order and matter was remitted back to the assessing authority for reconsideration in accordance with law

2

Section
112

Status of
Recovery of
demand on
account of nonconstitution of
Tribunal

Ritesh Infratech
(P.) Ltd. v. Union of
India [2023] 150
taxmann.com 340
(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-SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022

3

Section
30

Appellant directed
to avail benefit of
N. No. 03/2023-
CT Dt. 31.03.2023
for Revocation of
cancelled
registration

[2023] 150
taxmann.com 341
(Gujarat) Radhe
Packaging v.
Union of India

The cancellation of GST Registration was ordered on the ground that the tax payer had not filed GST returns for more than six months and
that the tax payer has not responded by filing such returns. The Assistant Government Pleader produced copy of the Notification No. 03/2023-
Central Tax Dated 31.03.2023 issued under Section 148 of the Central Goods and Service Tax Act, 2017 before the High Court.
The High Court thus held that Clause (c) of the Notification would apply to the facts of this case for which there is no dispute. As the Notification
would indisputably apply to the facts of this case, the petitioner was directed to approach the competent authority to avail the benefit of the
Notification and seek revocation of the cancellation of registration.

4

Section
83

Operation of order
provisionally
attaching bank
account ceases to
be operative after
expiry of one year

Merlin Facilities
(P.) Ltd. v. Union of
India [2023] 150
taxmann.com 373
(Delhi)

The High Court held that it is clear from Section 83(2) of the CGST Act that the operation of an order provisionally attaching the bank account
would cease to be operative after the expiry of the statutory period of one year. In the aforesaid circumstances, the impugned order dated
13.01.2021 was declared to be ceased to be operative and thus it was held that no orders were required for setting aside the same

Snapshot-24-Snapshot of Latest GST Cases

-SCN not containing reasoning
-Summons on same issue by CGST/SGST
-Recovery of demand on account of non-constitution of Tribunal.
-Tax Rate on Work contract services by appellant to BSNL which in turn being provided by BSNL to Navy

S.No

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

SCN being cryptic, one
liner and not containing
any fact or reasoning

Rathod Enterprise
v. State of Gujarat
[2023] 151
taxmann.com 37
(Gujarat)

SCN dated 26.8.2022 was issued in Form GST REG-17/31 stating that "in case, registration has been obtained by means of fraud,
willful misstatement or suppression of facts." The petitioner challenged it on the ground that SCN is in one line cryptic notice,
principles of natural justice has not been followed by not giving of any opportunity of being heard and SCN does not contain any
reasoning and does not record any details any details and facts relating to the allegations.
Th High Court directed the authority to undertake fresh exercise and pass fresh order and impugned notice dated 28.6.2022 was
set aside.

2

Section 5
and
Section 6

Petitioner needs to
participate in the summon
proceedings to know that
whether State Authority
are prosecuting the
petitioner once again on
the same matter on which
Central Authority had
already initiated action
against the petitioner.

Rathod Enterprise
v. State of Gujarat
[2023] 151
taxmann.com 37
(Gujarat)

In this writ petition impugned Summons were challenged on the ground that both Central and State Authorities do not have powers
to initiate proceedings against the petitioner simultaneously under the respective GST Acts regarding the same subject matter. The
petitioner stated that he was already facing proceedings initiated by the Central Authority and therefore, the question of the State
Authority initiating proceedings against the petitioner will not arise as per Section 6(2)(b) of the GST Act, 2017.
The High Court observed that truth will come out only when the petitioner appears before the State Authority pursuant to the
Summons received by him and not otherwise. If it is the same subject matter, the State Authority cannot prosecute the petitioner
once again as the Central Authority had already initiated action against the petitioner in respect of the very same subject matter.
The petitioner had sent a detailed reply on 27.10.2022 to the impugned Summons dated 18.10.2022 and even without allowing the
same to be considered by the State authority on merits, the petitioner approached the Court prematurely by filing this Writ Petition.
The High Court held that the petitioner would have to participate in the personal hearing and state all his objections with regard to
the action launched by the State Authority and then State Authority shall consider the petitioner's objections on merits and in
accordance with law and thereafter, decide as to whether the petitioner can be prosecuted once again under the TNGST Act, 2017
when the Central Authority has already prosecuted him under the CGST Act

3

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 34
(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

4

HSN
9954

Supply of Work contract
services by appellant to
BSNL which in turn are
being provided by BSNL
to Navy are eligible for
rate under Entry 3(vi) of
n.no. 11/2017-CTR
Dated 28/06/2017.

Sterlite
Technologies Ltd
[2023] 151
taxmann.com 33
(AAARMAHARASHTRA

Entry 3(vi) inserted in N. No.11/2017 vide notification No. 24/2017- CTR dt. 21.09.2017 primarily amongst other conditions state that
works contract services supplied to Government Entity are eligible for concessional rate provided it should have been procured by
the said entity in relation to a work entrusted to it by the Central Government, State Government, Union Territory or a local authority,
as the case may be.
In the instant case, AAR held that supply of Work contract services by appellant to BSNL which in turn are being provided by BSNL
to the Navy (Under the Ministry of Defence) are eligible for the concessional rate uptil 31st December 2021

Snapshot-22-Snapshot of Latest GST Cases

-Revocation of Cancellation of Registration
-Vague notice and No Opportunity of being heard
-GST Burden in case of Pre and Post GST Contracts
-Recovery of demand on Non-constitution of Tribunal
-Rejection of Anticipatory Bail

S.No

Section

Case Subject

Case

Held

1

Section
29 and
Section
30

Petitioner directed to
file application for
revocation of
Cancellation of
Registration as per
notification no.
3/2023-CTdt 31-3-23

Anandkumar Ramdeo
Singh v.
Commissioner
(Appeals-I) GST and
Central Tax [2023] 151
taxmann.com 13
(Karnataka)

The High Court observed that the notification dated 31.03.2023 has been issued providing for revocation of cancellation of the
registration. Since the cancellation was under the provisions of Section 29(2) of the CGST Act and such cancellation was before
31.12.2022, and an application for revocation was not filed, the High Court stated that application be submitted that in terms of this
notification.

2

Section
74 and
Section
75

A vague notice is
violation of provision
in Section 75 since
the Statute itself
prescribes for
affording reasonable
opportunity and any
deficiency in that
regard vitiates the
result.

[2023] 151
taxmann.com 12
(Madhya Pradesh)
Balaji Electricals
v. Appellate Authority
& Joint Commissioner
State Tax.

The High Court observed that even though the petitioner had not specifically raised the said ground before the appellate authority
but the fact remained that mandatory provisions of Section 74 of GST Act make it incumbent upon the Revenue to ensure the show
cause notice to be speaking enough to enable the assessee to respond to the same. However, SCN revealed that it neither contained
the material and information nor the statement containing details of ITC transaction under question. It was further observed that
Section 75 of GST Act is a complete Code which prescribes for various stages for determination of wrongful utilization of ITC while
following the concept of reasonable opportunity of being heard to the assessee. Since the Statute itself prescribes for affording
reasonable opportunity, it is incumbent upon the Revenue to afford the same and any deficiency in that regard vitiates the result.
The High Court held that it had no manner of doubt that the very initiation of the proceedings by way of show cause notice was
vitiated for the same being vague.
Case Referred- Sidhi Vinayak Enterprises v. The State of Jharkhand & ors) including WP(T) No.745/2021 14thth, September
2022,

3

Section 9

to bear GST Burden
in case of Pre and
Post GST Contracts
wherein impact of
GST was not
considered while
preparing BOQ

[2023] 151
taxmann.com 12
(Madhya Pradesh)
Balaji Electricals
v. Appellate Authority
& Joint Commissioner
State Tax.

The matter in the instant petition was to give by way of direction upon the respondent authority concerned to bear the additional tax
liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post GST regime without
updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill of Quantities (BOQ) for inviting the bids
The High Court disposed of the writ petition by giving liberty to the petitioner to file appropriate representations in the aforesaid
regard before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On
receipt of such representations the Additional Chief Secretary, Finance Department was directed to take a final decision within four
months from the date of receipt of such representation after consulting with all other relevant departments concerned.

4

Section
112

Status of Recovery of
demand on account
of non-constitution of
Tribunal.

Flipkart India (P.) Ltd.
v. Additional
Commissioner of
State Tax (Appeal)
[2023] 151
taxmann.com 10
(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- AJ Food Products Pvt. Ltd. v. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022

5

Section
69 and
Section
132

Rejection of
Anticipatory Bail

[2023] 151
taxmann.com 9 (SC)
Sheetal Mittal v. State
of Rajasthan

The Supreme Court held that looking to the role attributed to the petitioner(s) and the observations made by the High Court that the
GST number, name of the firm were fabricated and other details were found to be non-existent, there was no case for anticipatory
bail. The Special Leave Petitions were thus dismissed