Part-111-One Pager Snapshot to Latest Cases on Section 73, 75, 107, 140, 155, 169 and 171 of CGST Act, 2017

-SCN asking petitioner to pay dues instead of giving show cause is a minor mistake
-Order passed without serving notice as per Section 169(1)(b) and without considering business verticals set aside
-Order held invalid as it did not mention provision under which it was passed and had no discussion on merit
-Order passed basis on the reports never provided to assessee held to be invalid and all contentions by the petitioner to be considered and decided
-Order passed basis upon GSTR-3B and GSTR-2A held to be valid as assessee did not avail opportunity to discharge burden casted U/Sec 155
-Appellate Authority order binding upon the lower authority and appeal shall be filed if the same is not correct in view of the lower authority
-SCN mentioning “NA” against time, place and venue of hearing invalid

S.No

Section

Case Subject

Case

Held

1

Section
73

SCN asking petitioner
to pay dues instead of
giving show cause is a
minor mistake

Sansar Auto and Retail
(P.) Ltd. v. State Tax
Officer [2023] 155
taxmann.com 157
(Madras) (20-09-23)

GST DRC-01 was issued to petitioner and it was challenged it was not a SCN but an order as petitioner was asked to pay the dues.
The Court observed that a reading of impugned Notice indicated that respondent had asked the petitioner to pay the amount directly
instead of calling upon the petitioner to show cause as to how the amounts specified therein should not be demanded. It was held to
be a minor mistake as it gave an impression that it was an order. The Court disposed of the writ petition by directing respondent to
issue a corrigendum to the Impugned Notice in Form GST DRC-01.

2

Section
169

Order passed without
serving notice as per
Section 169(1)(b) and
without considering
business verticals set
aside

Tvl. Diamond Shipping
Agencies (P.) Ltd. v.
Assistant Commissioner
(ST) [2023] 155
taxmann.com 160
(Madras) (29-08-23)

Petitioner was having three business verticals of the same PAN, but respondents passed order without considering GSTR-9 and
GSTR-9C for the said three business verticals. Therefore, it was claimed that if an opportunity was granted, petitioner would explain
the same to the authorities. Moreover, without serving physical notice/order, impugned order was passed violating Section 169(1)(b).
The Court observed that the impugned order was passed without serving notice as per section 169(1)(b) and without taking into
account that petitioner was having three business verticals. Therefore, the Court quashed impugned order and directed the
respondents to grant an opportunity of being heard to the petitioner.

3

Section
140

Order held invalid as it
did not mention
provision under which
it was passed and had
no discussion on merit

Alutec Facades India (P.)
Ltd. v. Assistant
Commissioner (ST)
[2023] 155 taxmann.com
161 (Madras) (04-09-23)

Petitioner was sought to be denied Transitional Credit from VAT Returns by referring “second proviso to the TNGST Act 2017”.
The Court held that reading of the impugned order indicated that there was no clear discussion as to which provision was referred to
in the paragraph immediately following the table in the impugned order. There was also no discussion in the impugned order while
denying the amount of Input Tax Credit that was allegedly wrongly transmitted by the petitioner in Trans-1. Thus, impugned order was
set aside and the case was remitted back to the respondent to pass a fresh order on merits.

4

Section
171

Order passed basis
on the reports never
provided to assessee
held to be invalid and
all contentions by the
petitioner to be
considered and
decided

E-Homes Infrastructure
(P.) Ltd. v. Competition
Commission of India
[2023] 155 taxmann.com
162 (Delhi) (12-09-23)

The Court observed that the reports submitted by the DGAP, pursuant to which the impugned order was passed, were not provided
to the petitioner. It was also not disputed that the said reports were are not favourable to the petitioner. The petitioner had no
opportunity to address the issues raised in the said reports. The Authority had examined the reports submitted by the DGAP (copies
of which were not provided to the petitioner) and issued further directions for verification and investigation. The Authority had not
accepted petitioner's contention to close the proceedings. Thus, it was held that the impugned order was vitiated as it was passed
without following the principles of natural justice and the impugned order was set aside. It was further directed by the Court to the
Authority that it shall consider the contentions advanced by the parties and pass a speaking order because one of the petitioner's
grievances was that all contentions advanced by the petitioner were not considered and decided by the Authority.

5

Section
155

Order passed basis
upon GSTR-3B and
GSTR-2A held to be
valid as assessee did
not avail opportunity
to discharge burden
casted U/Sec 155

Ansil Ibrahim v. Assistant
Commissioner [2023] 155
taxmann.com 186
(Kerala) (25-09-23)

Petitioner was issued SCN under section 73(1). Petitioner did not reply to the said SCN, nor did petitioner appear for a personal
hearing. Assessing Authority verified ITC as per GSTR 2A and return as per GSTR 3B for 2017-18.
The Court observed that as the petitioner did not appear in pursuance of the SCN nor did he provide any document or evidence to
discharge his burden under section 155 of the GST Act, the Assessing Authority had no other material before them except for Form
GSTR 2A and GSTR 3B. Assessing Authority, therefore, denied the claim of ITC. If there was a difference between GSTR 2A and
GSTR 3B, then it was for assessee/dealer to prove his claim of ITC by leading cogent and credible evidence for his claim. The Court
thus held that when petitioner himself had given up his right to prove his claim, the Court cannot help such by entertaining writ petition

6

Section
107

Appellate Authority
order binding upon the
lower authority and
appeal shall be filed if
the same is not
correct in view of the
lower authority

Keysight Technologies
India (P.) Ltd. v. Assistant
Commissioner, CGST,
Range-V [2023] 155
taxmann.com 187
(Calcutta) (13-09-23)

Adjudicating Authority passed the impugned order on remand by higher authority by recording that order of the Appellate Authority
was not in accordance with law and he could not comply the order of the Appellate Authority and rejected petitioner's claim of refund.
The Court observed that such conduct of Adjudicating Authority was highly deprecable and if such stand was taken by an adjudicating
authority on his senior authority's order by contending that his officer's order was not correct and he would not obey and comply such
order, there would be administrative anarchy in Government offices and such conduct was also beyond norms of the quashi-judicial
authority's' function. If Adjudicating Authority was of the view that order of the Appellate Authority was not in accordance with law he
could have gone to further appeal. The impugned order was set aside and the matter was remanded back to the Adjudicating Authority

7

Section
75

SCN mentioning “NA”
against time, place
and venue of hearing
invalid

Brijesh Kumar Singh v.
State of U.P. [2023] 155
taxmann.com 188
(Allahabad)

SCN did give any opportunity of hearing to the petitioner by mentioning "NA" against column description "Date of personal hearing".
Similar endorsements were made against the columns for "Time of personal hearing" and "Venue where personal hearing will be
held". Thus, it was contended that the petitioner was completely denied opportunity of oral hearing before the Assessing Authority.
The Court referring to Section 75(4) held that once it is laid down that an assessee is not required to request for "opportunity of
personal hearing", it remained mandatory to afford such opportunity before passing an adverse order, even if petitioner may have
signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence.
Cases Referred- Bharat Mint & Allied Chemicals Vs. Commissioner Commerical Tax & 2 Ors., (2022) 48 VLJ 325, M/S Hitech Sweet
Water Technologies Pvt. Ltd. Vs. State of Gujarat, 2022 UPTC (Vol. 112) 1760.

Part-97-One Pager Snapshot to the Latest Cases on Section 29, 50, 67, 75, 107, 122 and 140

-Opportunity of being heard be provided before an adverse order
-No Interest and Penalty for Transitional credit which could not have been availed due to technical glitches on portal maintained by the Government
-Appeal could not be dismissed as certified copy of order not produced
-No roving or fishing inquiries be conducted under the garb of authorisation U/Sec 67
-Opinion for cancellation of registration cannot be formed by DGGI

S.No

Section

Case Subject

Case

Held

1

Section
75

Opportunity
of being
heard be
provided
before an
adverse
order

Tvl. Sree Amman
Metal Works v. State
Tax Officer
(Adjudication)-2
[2023] 154
taxmann.com 496
(Madras)

Petitioner challenged the impugned orders, apart from questioning them on merits, because of the objections filed by the petitioner were not taken
note of by the respondent and non-speaking orders was passed.
The Court observed that reading of the impugned orders did not imply the reasoning of the authority concerned. That apart, though adverse orders
were being passed against the petitioner, no opportunity of personal hearing was afforded to him, which was contemplated under section 75(4) of
the Central Goods and Services Act, 2017. Therefore, on this limited ground, without addressing the merits of the case, the Court allowed Writ
Petitions and set aside the impugned orders and remitted the matter back to the respondent

2

Section
140

No Interest
and Penalty
for
Transitional
credit which
could not
have been
availed due
to technical
glitches on
portal
maintained
by the
Government

Nithya Packaging (P.)
Ltd. v. Assistant
Commissioner of GST
and Central Excise
[2023] 154
taxmann.com 494
(Madras)

Petitioner faced difficulty in transitioning ITC on capital goods and communicated with Department and officials named on Web Portal. However,
he was unable to transfer the transitional credit. Thereafter, petitioner decided to avail such Credit. The credit was confirmed by Sanction Order
(Tran-1 Credit) dated 20-2-2023. Meanwhile, proceedings were initiated to recover the amounts from the petitioner, which culminated in the
impugned order. By the impugned order dated 28-3-2023, officer had imposed penalty and interest on the petitioner under section 50 and Section
73(9) read with Section 122(2)(a). The impugned order was passed as petitioner filed a revised return in terms of the decision of Bombay High Court
in Chep India Private Limited v. Union of India and others dated 27-6-2022 and decision of the Hon'ble Supreme Court in Union of India and
another v. FILCO Trade Centre Private Limited dated 22-7-2022, claiming ITC, which was earlier sanctioned by the Sanction Order (Tran-1 Credit)
dated 20-2-2023. The only point that arose for consideration was whether petitioner could be mulcted with interest and penalty even though the
credit which was taken was sanctioned and merely because the petitioner had also filed returns to transition the same credit.
The Court observed that petitioner was entitled to Rs. 11,06,396/- on the eve of implementation of GST with effect from 1-7-2017 and by Sanction
Order (Tran-1 Credit) dated 20-2-2023, proper officer had confirmed that petitioner was entitled to the aforesaid transitional credit. Therefore, merely
because petitioner had filed subsequent return and had given up the same would not mean that petitioner could be subjected to pay interest and
penalty. The difficulty arose only on account of technical glitches in the web portal maintained by the Central Government at the time of
implementation of GST. The petitioner cannot be penalized as the credit itself was allowed after the implementation of GST by Sanction Order (Tran1 Credit) dated 20-2-2023. Therefore, order seeking to impose interest and penalty on the petitioner was held to be unsustainable and thus quasshed

3

Section
107

Appeal could
not be
dismissed as
certified
copy of order
not produced

KPMG India (P.) Ltd.
v. Joint Commissioner
of State Tax (Appeals)
[2023] 154
taxmann.com 492
(Punjab & Haryana)

Petitioner contended that they had filed appeal along with digitally uploaded order on the common portal and hence, appeal could not be dismissed
on the ground that certified copy was not attached with the appeal.
The Court observed that since uploaded copy was already part of the appeal, it would amount to substantial compliance of Rule 108 and Joint
Commissioner would not dismiss the appeal by impugned order on the ground that appellant had not submitted certified copy of order impugned
therein. Since fact was further clarified by notification dated 25-1-2023 whereby it has been clarified if an order against which appeal has been filed
is uploaded on common portal, then final acknowledgement shall be considered as date of filing of the appeal. The writ petition was thus allowed

4

Section 67

No roving or
fishing
inquiries be
conducted
under the
garb of
authorisation
U/Sec 67

Bhagat Ram Om
Prakash Agro (P.) Ltd.
v. Commissioner of
Central Tax, GST
[2023] 154
taxmann.com 491
(Delhi)

Petitioner contended that the search authorisation was illegal as the same was issued without proper officer having any reason to believe that
conditions as specified under Section 67(1) of CGST Act, 2017. Petitioner stated that search was conducted in view of directions issued by the
Special Judge (P.C. Act) to Income Tax Department, GST Department, and Enforcement Directorate to check source of Rs. 50,00,000/- received
by petitioners. Petitioner no.2 purchased a property from one Mr. Rajesh Kumar Anand for a sum of Rs. 50,00,000/-. Mr. Rajesh Kumar Anand had
deposited the said consideration in a fixed deposit receipt which was offered as a collateral for securing the bail of Sh. Kapil Wadhawan and others.
The Court issued notice to the revenue but at the same time observed that they had serious reservations whether any such roving and fishing
inquiry under the CGST Act, 2017 could have been directed to be conducted by the Special Judge. Further, the proper officer can authorise the
search only if the conditions specified in Section 67 of the Act are fulfilled.

5

Section
29

Opinion for
cancellation
of
registration
cannot be
formed by
DGGI

Muhammad Salmanul
Faris k v.
Superintendent,
CGST & Central
Excise [2023] 154
taxmann.com 414
(Kerala)

Deputy Director, DGGI, Kochi Zonal Unit has requested the Range Officer, Ottapalam to cancel GST registration of the petitioner and petitioner
was given a personal hearing by the proper officer on 27-3-2023. However, petitioner did not appear on the said date and new date was fixed on
19-4-2023. The petitioner did not appear for the said hearing on 19-4-2023 and therefore, impugned order for cancellation of the GST registration
of petitioner was passed. The petitioner contended that when DGGI Cochin Unit has already taken a decision and directed for cancellation of the
GST registration of the petitioner, the competent authority could not have taken a decision contrary to the said direction issued by the higher authority.
The Court observed that considering the aforesaid submissions, there was no denial of fact that the DGGI, Kochi Zonal Unit has already taken the
decision for cancelling the GST registration of the petitioner and the proper officer was only required to form the formalities and could not have taken
an independent decision. Therefore, the impugned order was set aside and remanded back for decision on merits. However, the said order was not
revived further for a period of one month

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.

Snapshot-29-Snapshot of Latest GST Cases

-Activity of Gold Jewellery being melted into gold lumps-Margin Scheme
-C/f of Unadjusted VAT TDS in Tran-1
-Release of conveyance by Transporter U/s 129(6)
-Refund of IGST paid on Ocean Freight
-Section 129 and Section 130 of CGST Act

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