S.No

Section

Case Subject

Case

Held

1

Section 73

Service of
Notice through
Portal is valid
service of
Notice

S. K. Eldhose v.
State Tax Officer
[2023] 153
taxmann.com 477
(Kerala)

The petitioner contended that that it was only on account of the peculiar circumstances where it was not aware of the assessment order that it
could not take steps to file the appeal within time.
The High Court held that the assessment order was served on the appellant in a manner prescribed under the statute, namely, an
intimation through the GST portal. The statutory period of limitation for preferring an appeal was three months from the date of communication
of the order, with a further period of one month towards condonation of delay, if any. The appellant, not having availed the alternate remedy
under the statute, cannot feign ignorance of statutory scheme under GST Act, which accords a finality to those orders that have not
been appealed against.

2

Section 129
and Section
130

Section 130
not required to
be preceded
by Section 129

Muhammad
Saleem
Shemsudeen v.
Enforcement
Officer [2023]
153taxmann.com
479 (Kerala)

The main contention was that the respondents were obliged to proceed sequentially through provisions of Section 129 before confiscating the
goods under Section 130 since provisions were dependent upon each other. The said submission did not, however, found favour with the learned
Single Judge who found that provisions of Section 130 were independent and could be invoked without invoking Section 129 of the Act.
The High Court observed that the impugned judgment of the learned Single Judge calls for no interference since it is well settled that
the provisions under Sections 129 and 130 are independent provisions and there is no requirement in law that the proceedings under
Section 130 should be preceded by the proceedings under Section 129.

3

Section 107

Appellate
Authority
relying upon
documents
which were
never supplied
to the
petitioner

Ashok Kumar
Vishwakarma v.
Union of India
[2023] 153
taxmann.com 481
(Bombay)

It was contended that SCN for cancellation of registration was issued without furnishing any documents and merely on a statement that
Petitioner's registration was liable to be cancelled because of "Issue any invoice or bill without supply of goods and/or services in violation of the
provisions of this Act, or the rules made thereunder leading to wrongful availment or utilization of input tax credit or refund of tax."
The High Court observed that no documents were furnished to the Petitioner in support of the sole ground. The Petitioner had sought for an
adjournment that he was not available in the town, however still the proper officer proceeded to cancel the registration that too by erroneously
recording that the Petitioner was heard and the documents and reply submitted by him was examined, when neither the Petitioner was heard
nor any documents were filed by the Petitioner. There is a categorical obligation on the authority to grant a personal hearing as contemplated
below proviso to Sub-section 2 of Section 29. Appellate Authority also proceeded to overlook the ground and in fact has proceeded on a fresh
material, namely, range officer's report in regard to the short paid tax and other materials regard to the cancellation of registration of the suppliers
of Petitioner's. Petitioner was held correct in contending that Appellate Authority relied on materials which were never supplied while
rejecting his appeal.

4

Finance Act
1994
(Notification
no. 41/2012-
ST dated
29.06.2012

Review of
Earlier
Judgement
which held that
Duty free
shops being
outside
customs
frontiers of
India cannot
be saddled
with indirect
tax burden

Commissioner of
CGST and Central
Excise v. Flemingo
Travel Retail Ltd
[2023] 153
taxmann.com 492
(SC)

Basis of Earlier Judgement for which review was sought- The Court affirmed judgment of the CESTAT noting that against a judgment of the
High Court of Judicature at Bombay dated 28 November 2018 in Al Cuisine Pvt Ltd v Union of India, a Special Leave Petition was dismissed by
an order dated 14 Dec 2018 of the Apex Court. From the judgment under review, it was also observed that after recording the view which was
taken by CESTAT, Court adverted to decision of High Court at Bombay in Sandeep Patil and Kerala in CIAL Duty Free & Retail Services Ltd.
Why Union wanted Review- Position as it obtains in relation to goods is distinct from the applicable statutory regime in respect of services.
Sixteen appeals involving a similar issue are pending before this Court arising from orders dated 28 September 2017 and 26 October 2018 of
the CESTAT at its West Zonal Bench in Mumbai. Hence, it was requested to tag this appeal with the appeals pending in this Court was made.
Decisions of Bombay and Kerala High Court relied upon pertained to goods and not to levy of service tax on the renting of immovable property.
What Apex Court said accepting the request to review- Substantial grounds on law were advanced during oral hearing in support of its case
that applicable regime regarding goods stand on a distinct footing from regime applicable to levy of service tax and later, under IGST. Apex Court
also observed that whether objection raised regarding reliance upon judgement of Bombay and Kerala High Cour would make any difference to
ultimate outcome is debatable, and would, therefore, require substantial consideration. Therefore, at this stage, absent such a consideration
in the judgment under review and since issue which was raised would have large consequential ramifications, review was allowed

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.)

S.No

Section

CAse Subject

Case

Held

1

Section
15 and
Rule 32

Activity of Gold Jewellery
being melted into gold lumps,
not eligible to avail the
benefits of Rule 32(5) of
CGST Rules, 2017

White Gold
Bullion (P.) Ltd.
[2023] 151
taxmann.com 45
(AAR -
KARNATAKA)

Authority held that when applicant melts the gold jewellery into gold lumps, the nature of goods changes in as much as the
characteristics of the articles and the classification changes. Since the processing done by the applicant changes the nature of
goods, they are not eligible to avail the benefits of Rule 32(5) of CGST Rules, 2017. The HSN Code for Old Gold Jewellery is 7113
and after melting into gold lumps or irregular shapes of gold the HSN Code is 7108.

2

Section
140

Unadjusted VAT TDS
allowed to be carried forward
to the GST regime

P & C Projects
(P.) Ltd. v.
Assistant
Commissioner of
(ST)(FAC) [2023]
151 axmann.com
46 (Madras)

The High Court not observed that the order was a non-speaking order as no reasons had been given for rejecting the petitioner's
request for carrying forward of the unadjusted VAT TDS to the GST regime that too when the law was well settled by the decision
of the learned Single Judge, which also had attained finality as no Appeal had been filed against the said order as fairly admitted
by the learned Government Advocate appearing for the respondents. The impugned order was thus quashed.
Case Referred- M/s. DMR Constructions v. Assistant Commissioner, Commercial Tax Department, Rasipuram, Namakkal
District reported [2021] 125 taxmann.com 252 (Mad.)/[2021] 86 GST 82 (Mad.)

3

Section
129

Transporter can seek release
of the conveyance on deposit
of specified amount under
Section 129(6

Lodha Roadways
v. Deputy State
Tax Officer,
Inspection Cell-4
[2023] 150
taxmann.com
375 (Madras)

The High Court held that Section 129 provides for various situations where release of conveyance and goods may be sought and
Section 129(6) being specific to a transporter, thus enables a transporter to seek release of the conveyance in the circumstances
mentioned therein, being, upon payment of penalty under sub-section (3) or a sum of Rs.1.00 lakh, whichever is less.-

4

Section 5
of IGST
Act, 2017

Refund of IGST paid on
Ocean Freight

Etc Agro
Processing
(India) (P.) Ltd.
v. UOI [2023] 150
taxmann.com
376 (Gujarat)

The High Court held that since Entry No.10 of Notification No.10/2017- IGST (Rate) dated 28.6.2017 has already been declared
ultravires by Hon’ble Apex Court, therefore amount of Rs. 6,98,00,420/- paid by the petitioner as IGST on ocean freight of goods
imported during July, 2017 to December, 2019 be refunded alongwith the statutory rate of interest.
Case Referred- ADI Enterprises v. UOI being Misc. Civil Application No. 1 of 2020 in Special Civil Application No. 10479
of 2019

5

Section
129 and
Section
130

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 goods under
Section 129

Rohit Company
v. Union of India
[2023] 150
taxmann.com
379 (Gujarat)

The petitioner contended that when the goods were in transit, the authorities intercepted the goods and confiscated them. In other
words, authorities sought to derive their powers for taking possession of the goods of the petitioner which were in transit under
Section 129 of the Act. It was submitted that the said Section begins with non obstante clause and it is a provision independent of
Section 130. In that context, it was submitted that exercise of powers under Section 129 and thereafter switching over to Section
130 and passing order thereunder without availing the petitioner the benefits of release of the goods under Section 129, could be
said to be without jurisdiction.
The High Court, by way of interim relief, directed that the goods of the petitioner as well as vehicle shall be released upon
satisfaction of conditions and admitted the petition and also directed the same to be listed with Special Civil Application No.8353
of 2022