Part-162-One Pager Snapshot to Cases on Section 9, 54, 73 of CGST Act, 2017

Section 9- Petitioner directed to refund the tax collected from customers since services such as application fee for releasing connection of electricity, rental charges, testing fee, labour charges for shifting meters, etc. are not chargeable to GST as they are bundled supplies and form an integral part of the supplies of distribution of electricity.

Section 73- SCN quashed and matter remanded back to conduct investigation at supplier end as authority failed to conduct investigation when petitioner in their reply to Pre-SCN had requested authority to investigate at the supplier’s end, where there was an allegation of retrospective cancellation of the supplier’s registration.

Section-54-Matter remanded back as order failed to consider the reply submitted by the petitioner on record

Part-161-One Pager Snapshot to Cases on Section 54, 67, 168 of CGST Act, 2017

-Section 168-Since the impugned circular (Circular No. 80/54/2018-GST dated 31-12-2018) was already aside by a coordinate Bench of the Court, therefore, petitioners’ grievance with regard to the said circular does not survive

-Section 67-Since reason for carrying out search were provided to Joint Commissioner subsequently which he signed on the date following the search, thus, the search carried out was illegal as authorisation was vitiated

-Section 54- Refund under inverted duty Structure does not contemplate comparing rate of tax on the principal input with that on principal output and Circular No.135/05/2020 has no application where ITC, has accumulated on account of rate of taxes on certain inputs being higher than tax chargeable on output, notwithstanding that one of the main input and output is chargeable at the same rate of tax

Part-156-One Pager Snapshot to Cases on Section 16, 37, 54 of CGST Act, 2017

-Correction of error in GSTR-1 allowed as bonafide, inadvertent error in GST return needs to be recognized, and permitted to be corrected, when there is no loss of revenue. Such freeplay in joint requires an eminent recognition

-Matter remanded back as Order in Original passed without giving adequate opportunity and Order in Appeal passed relied upon Rule 89 which was not part of the SCN nor the same was put forth to the petitioner

-SCN denying ITC because retrospective cancellation of suppliers as nothing on record showing cancellation of the registration of any of suppliers in question retrospectively particularly for relevant assessment year 2018-19

-Section 16(4) is constitutionally valid and Section 16(1) is the enabling section rather than Section 16(2) and that Section 16(2) is only a restrictive provision of ITC which is otherwise allowed as per Section 16(1)

-Section 16(4) neither violative of Article 14 and nor Articles 19(1)(g) & 300A of the Constitution

Part-153-One Pager Snapshot to Cases on Section 54, 75, 107, 129 of CGST Act, 2017

-Application for refund cannot be rejected as being deficient once it is accompanied with all the documents required under Rule 89(2) although proper officer can call for additional documents by issue of Notice in RFD-08

-Petitioner being a transporter can file an appeal against an order passed against him U/Sec 129(1)(a) even though payment for release of goods was made by owner but same was deducted from account of Petitioner

-Merely because petitioner did not appear on the hearing date, it cannot be presumed that he was not interested for hearing and even though he did not appear but the impugned order needs to consider reply to SCN as submitted

-Five heads including date by which reply is to be furnished and date, time and venue of hearing mentioned in this prescribed statutory form itself indicate that there are two stages, i.e. filing of reply and grant of personal hearing

Part-146-One Pager Snapshot to Cases on Section 54, 74 of CGST Act, 2017 and Rule 86A of CGST Rules, 2017

-Amended to the definition of relevant date from “end of financial year” to “due date for furnishing return” would be applicable to refund filed post 01/02/2019 to claim for refund in respect of returns filed consequent to that date and not to returns filed prior to the date of amendment

-Impugned letter allegedly issued for blocking of the Credit ledger, since called upon the petitioner to submit his explanation was held neither an order of attachment of ITC and nor notice U/Sec 74 as there was no mention of proceedings drawn U/Sec 74.

-Rejection of refund on account of fault of Customs department was improper as working of Customs was not under domain of petitioner and he shall not be penalised for irregularity from the side of customs department

– Petitioner cannot be compelled to deposit without following procedure under Section 73, 74 and 79

Part-91-One Pager Snapshot to the Latest Cases

-Passing of order by mere recitation of submission by taxpayer with no discussion on merits is arbitrary
-Buyer cannot be held responsible for mistake committed by seller in generating the invoice for Bill to Ship To model and Order to be passed within 7 days from the date of service of notice
-Can State Tax Officer be Proper Authority to exercise power U/Sec 83
-Refund can only be withheld for the amount pertaining to supplies from a non-existent supplier and balance amount to be refunded
-Penalty U/Sec 129(1)(b) not applicable as E-Way Bill & Document of title to goods were accompanying goods

S.No

Section

Case Subject

Case

Held

1

Section
73

Passing of order by
mere recitation of
submission by
taxpayer with no
discussion on
merits is arbitrary

Penalty U/Sec
129(1)(b) not
applicable as EWay Bill &
Document of title to
goods were
accompanying
goods

In the instant matter, the authority had while passing the order elaborately reproduced reply of the petitioner from Internal Page No. 2 of the impugned
order upto the Internal Page No. 9. However, there was no discussion and thus the High Court held that the impugned order was passed in an arbitrary
manner without considering the reply of the petitioner. The impugned order was thus set aside and the case was remitted back to the authority to pass a fresh
order on merits and in accordance with law.

2

Section
129

Buyer cannot be
held responsible for
mistake committed
by seller in
generating the
invoice for Bill to
Ship To model
Order to be passed
within 7 days from
the date of service
of notice

Tvl.T M Steel v.
Deputy State Tax
Officer [2023]
154
taxmann.com
281 (Madras)

The petitioner i.e, Tvl.T M Steel had received an order for supply from Mr. T.Balaji (HUF). The petitioner in turn had placed an order for the supply with M/s.Rashmi
Mataliks Limited (hereinafter referred to as M/s.Rashmi) and instructed them to directly send the consignment to Mr.T.Balaji (HUF). The vehicle and goods were
detained as M/s.Rashmi while generating the tax invoice M/s Rashmi , correctly mentioned Name, address and GSTIN of Tvl.T.M. Steel in the Billed To column.
However, in Shipped To column, instead of mentioning Tvl.T.Balaji, it mentioned Tvl.TM Steel. But in address column, it clearly mentioned address of Tvl.T.Balaji.
The High Court observed that it can be considered as typographical error only. Moreover, it was not the mistake of Tvl.TM Steel, it was the mistake
committed by M/s.Rashmi. The authority did not communicate to the counterpart at Bengal to question M/s.Rashmi. It was not known how the authorities
penalizing the petitioner when the petitioner had not committed the said mistake. When the petitioner had not committed such mistake, the authorities had left
the goods in the vehicle for the past 10 days, thereby damaging the vehicle and goods. Further, authority had not passed order with 7 days from the date of
service of such notice. Under Section 129(3) of the Act, the order ought to be passed within 7 days from the date of serve of such notice. Since there is
clear violation of the provisions of the Act and hence the detention of goods is against the provisions. Therefore, the court directed the petitioner to pay Rs.
5,000/- as penalty and goods being released and authorities were at liberty to intimate the mistake committed by M/s.Rashmi Mataliks Limited to their counterpart in
West Bengal and take appropriate action

3

Section
83

Can State Tax
Officer be Proper
Authority to
exercise power
U/Sec 83

Saket Agarwal v.
Union of India
[2023] 154
taxmann.com
279 (Bombay)

The Court had heard the proceedings earlier and had adjourned it to enable the learned AGP to take instructions as to whether the State Tax Officer would be the
proper officer to exercise jurisdiction under Section 83 of the MGST Act so as to issue the impugned communication. It was fairly stated on instructions on the
date of hearing, that the State Tax Officer would not have any jurisdiction to issue such communication, therefore, impugned communication was
withdrawn by the officer who had issued it. The High Court thus held that as the impugned communication itself was withdrawn, an intimation of withdrawal of
such communication be immediately sent to the Officer-In-Charge of the Central Depository Services (India) Ltd.

4

Section
54

Refund can only be
withheld for the
amount pertaining
to supplies from a
non-existent
supplier and
balance amount to
be refunded

Solidum and
Stars Guild LLP
v.
Commissioner of
Central Tax,
Appeal-II, [2023]
154
taxmann.com
271 (Delhi)

Petitioner had filed a refund application and Adjudicating Authority issued a SCN proposing to reject petitioner's claim because supplier/s were reported as NonExistent by the respective jurisdictional CGST authorities. Although petitioner replied to the SCN but the Adjudicating Authority rejected petitioner's application for
refund as it was found on verification, that one of the suppliers named M/s Siddhi Impex was non-existent. There was no allegation in respect of any of the other
suppliers, the details of which were provided by the petitioner. The petitioner preferred an appeal under section 107 and the same was also rejected as one of the
supplier was found to be non-existent and concluded that the appellant 'had not received any input/input services from M/s Siddhi Impex'. However, there was no
allegation regarding any of the other suppliers, the details of which were supplied by the petitioner. The petitioner in the writ petition, did not seek to question the
decision of the Adjudicating Authority or the Appellate Authority in rejecting the petitioner's claim for refund in respect of the ITC in relation to the supplies received
from M/s Siddhi Impex; he confined his relief to refund of the ITC in respect of inputs received from other suppliers, amounting to Rs. 54,99,846.
The High Court observed that there was no allegation regarding any irregularity in respect of the supplies made by the suppliers other than M/s Siddhi
Impex. There was also no dispute as to the quantum of the ITC in respect of those supplies. Neither the Adjudicating Authority nor the Appellate Authority
has raised any doubt in respect of those supplies. Therefore, there was, no reason for denial of refund in respect of ITC pertaining to supplies made by
suppliers other than M/s Siddhi Impex

5

Section
129

Penalty U/Sec
129(1)(b) not
applicable as EWay Bill &
Document of title to
goods were
accompanying
goods

Diginx Trader
v. State of U.P.
[2023] 154
taxmann.com
267 (Allahabad)

Writ Petition was filed against the order whereunder penalty of Rs. 72,76,500/- had been levied upon the petitioner by not treating the petitioner to be the owner of
goods. Admittedly, the goods were duly accompanied by the tax invoice, e-way bill and bilty issued in the name of the petitioner as the consignee. It was further
contended that the petitioner was the owner of the goods and was ready and willing to deposit penalty under protest under section 129(1) (a) to get the goods
released considering the perishable nature of the goods and diminishing of its value substantially with the onset of monsoons.
The High Court observed that revenue could not dispute the fact that intention to evade tax is a per-requisite for imposition of penalty under section 129.
E-way Bills being the documents of title to the goods were accompanying the goods hence, conclusion of revenue that the petitioner was not the owner
of the goods is patently erroneous. Consequently, it was held that penalty proceedings were liable to be initiated U/Sec129(1)(a) and not 129(1)(b) as was done.
Case Relied- Sahil Traders v. State of U.P. [Writ (Tax) No. 178 of 2023, dated 25-5-2023

Part-64-One Pager Snapshot to the Latest Cases

-Notification No. 9/2022 read with Circular No. 181/13/2022 dated 10th Nov 2022 Challenged putting restriction on applications filed for seeking refund on category of goods added by way of the stated notification
-If neither consignor/ consignee are treated as owner, proper officer before levy of penalty is required to decide as who then should be the owner of the goods.
-SCN for cancellation of registration derives response from the petitioner; “So what is fraud in this transaction?” liable to be set aside as it was bereft of particulars
-Manual Refund Application to be processed as Rule 97A does not bars it and Circular cannot takeaway plain effect of Rule

S.No

Section

Case Subject

Case

Held

1

Section
54

Notification
No. 9/2022
read with
Circular No.
181/13/2022
dt 10th Nov,22
Challenged

Shree Proteins
(P.) Ltd.
v. Union of
India [2023] 153
taxmann.com

Notification No. 9/2022 Dated 18th July 2022 was issued to enlarge scope of N.No. 5/2017, whereby specified HSNs in which petitioner company's
outward supplies were covered were added to the restricted category. It was contended that not only Notification shall have prospective effect but by
way of Circular No. 181/13/2022 GST dated 10th Nov, 2022, it has been incorrectly clarified that restriction imposed by the Notification would be applicable
in respect of all refund application filed on or after 18-7-2022 and would not be applied to the refund application filed before 18-7-2022. Thus, it was
submitted that the said Circular is against the provisions of law contained in Section 54 of the Act, whereby, the period of two years to file an application
for refund is given. It was further submitted that no retrospective effect can be given by way of the said Circular to the Notification. Reliance was placed
on doctrine of legitimate expectation. High Court observed that issue involved in the petition required consideration and notice was issued.

2

Section
129

If neither
consignor/
consignee are
treated as
owner, proper
officer before
levy of penalty
is required to
decide as who
should be
owner of
goods

G M R
Enterprise v.
State of U.P.
[2023] 153
taxmann.com
407 (Allahabad)

Goods were intercepted during transportation within the state of U.P and petitioner contended that such goods were accompanied by tax invoices and
e-way bill, which clearly indicated the ownership of petitioner over the goods in transit. The department nevertheless proceeded to issue notices in the
name of the driver and subsequently orders determining liability of tax have been passed on the premise that the consignee had not accepted the goods
to have been purchased by it. The department, therefore, has treated the goods to be not traceable to a registered dealer.
High Court prima facie was of the opinion that while the goods were in ' transit it accompanied the tax invoice and e-way bill which indicated the goods
to be owned by the petitioner. The order in no manner reflected application of mind on the question as to whether the petitioner was the owner of the
goods in question or not? The circular dated 13-3-2019 clearly stipulated that, in such an eventuality, if the goods are accompanied with the invoices
then either the consignor or the consignee ought to be deemed to be the owner of the goods. Otherwise, proper officer is required to determine as
to who should be declared as owner of the goods. In the facts of the case, such consideration on the question as to ' who is the owner of the
goods was held to be lacking. The department, therefore, was held not to be justified in proceeding to hold the goods not to belong to a
registered dealer without dealing with the question of ownership of such goods in transit and High Court relying on its earlier decision in Writ
Tax No. 178 of 2023 also stated that the question with regard to ownership of the goods shall be determined before levying penalty etc

3

Section
29 and
Section
30

SCN derives
response; "So
what is fraud
in this
transaction?"
liable to be
set aside

Cuthbert
Oceans LLP v.
Superintendent
of CGST [2023]
153
taxmann.com
410 (Delhi)

Concerned Officer issued the SCN proposing to cancel the petitioner's registration for the following reasons: "Section 29(2)(e)-registration obtained
by means of fraud, willful misstatement or suppression of facts". Apart from the aforesaid reason, the impugned show-cause notice did not disclose
any other reason or particulars for proposing the adverse action against the petitioner. The petitioner was called upon to furnish a reply to the impugned
show-cause within a period of seven days from the date of service of impugned SCN; it further directed the petitioner to appear before the respondent.
High Court held that the impugned SCN was bereft of any particulars. The petitioner's response to the impugned show-cause notice (although
sent belatedly) indicates that the petitioner has referred to the transactions carried out by him and had quizzed the respondent; "So what is
fraud in this transaction?". This question resonates with us as well. The impugned show-cause notice was set aside.

4

Section
54

Manual
Refund
Application to
be processed
as Rule 97A
does not bars
it and Circular
cannot
takeaway
plain effect of
Rule

Desai Brothers
Ltd. v. State Of
U.P. [2023] 153
taxmann.com
412 (Allahabad)

Order of the Appellate Authority was in favour of the Appellant and neither, the principal amount Rs. 47,32,040/- has been refunded to the petitioner nor
any interest has been paid thereon. The State respondents were of the view that such refund may have been granted only if the petitioner had made an
application for refund on the online form RFD-01. The petitioner stated that he was effectively prevented from moving the online application owing to
technical glitches that existed on the GSTN portal thus they had moved a physical application to claim the refund within the statutory period of 60 days.
High Court observed that the appeal order dated 18-3-2019 has long attained finality. It clearly contained a recital to refund the amount of Rs.
47,32,040/-Therefore, by way of a right, that amount cannot be retained by the State. Only procedural requirements were required to be
completed for its refund to be made. So long as Rule 97A remains in the Rule book, Circular cannot take away the plain effect of the said Rule
97A. Therefore, Circular could only provide a directory or an optional mode, to process a refund claim. Therefore, the revenue authorities were
obligated in law to deal with that application in terms of Section 54(7) of the Act, within a period of 60 days. Failing that, the revenue further became
exposed to discharge interest liability on the delay in making the refund at the statutory rate from the end of 60 days from 2-6-2019.
Cases Referred- Savista Global Solutions (P.) Ltd. v. Union of India [2021] 132 taxmann.com 144 All.) and Alok Traders v. Commissioner of Commercial
Taxes [2022] 147 taxmann.com 447

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-45-One Pager Snapshot to the Latest Cases

-Cancellation of Registration without following Principle of Natural Justice and illegalities at assessment stage cannot be cured by appellate stage

-Writ filed without exhausting statutory remedy and delegation of powers by Commissioner

-Refund cannot be denied as revenue proposes to file an appeal against order of the appellate authority

S.No

Section

Case Subject

Case

Held

Cases Referred

1

Section 29

Cancellation of
Registration
without
following
Principle of
Natural Justice
and illegalities
at assessment
stage cannot be
cured by
appellate stage

Ultra Steel Ward v.
State of Madhya
Pradesh [2023] 151
taxmann.com 285
(Madhya Pradesh

The High Court observed that the SCN did not contain sufficient reasons to enable petitioner to file a reply. By
saying that the registration has been obtained by fraud/wilful misstatement/suppression of facts, is not
sufficient. Such terms need to be supported by reasons and some fundamental supporting material as to why,
how and under what circumstances the registration was obtained. Further, SCN for rejection of application for
revocation of cancellation of registration referred to an application dated 11.02.2022 which was, in fact, a reply
to the SCN for cancellation of registration and, therefore, it appeared to the Court that Revenue has not even
cared to ensure that true facts are reflected from the SCN. The carelessness on the part of the Revenue was
referred to be palpable. The appellate authority while passing the appellate order brushed aside the cogent
ground of violation of principle of natural justice (audi alteram partem). Pertinently, the appellate authority
conducted a physical verification of the premises of assessee. Such physical verification at the appellate stage
in the opinion of the High Court could not validate the illegalities which had crept at the initial stage of show
cause notice.
The proceedings were held to be illegal and revenue was at liberty to proceed by issuing a fresh, proper and
lawful show cause notice to the petitioner-assessee, if they were so advised.

Mohinder Singh Gill and
another Vs. CEC and
others, (1978) 1 SCC 405;
Health Care Medical
Devices Pvt. Ltd. Vs. MP
Public Health Services
Corpn. Ltd. and another,
2021 SCC OnLine MP
3389; Balaji Enterprises
Vs. Principal Additional
Director General, DGGSTI
and Others, 2022 SCC
OnLine Del 3201;

2

Section 83

Writ filed
without
exhausting
statutory
remedy and
delegation of
powers by
Commissioner

S. R. Traders v.
Additional Director
General [2023] 151
taxmann.com 286
(Kerala)

The High Court stated that the petitioner had approached the court without exhausting the statutory remedy
under Rule 159. It is well-settled that the writ jurisdiction was only to be exercised in extra-ordinary
circumstances.
The petitioner had further contended that only Commissioner was invested with the power to pass an order
under Section 83 but respondent stated that by notification, powers have been invested in the Additional
Director General. The High Court negated the contention and held that the respondent was competent to pass
order in view of express delegation of powers read with Sections 3 and 5 of the CGST Act.

M/s. Radha Krishan
Industries v. State of
Himachal Pradesh and
others [AIR 2021 SC 2114]

3

Section 54

Refun cannot be
denied as
revenue
proposes to file
an appeal
against order of
the appellate
authority

Alex Tour and Travel
(P.) Ltd. v.
Asistant
Commissioner,
CGST [2023] 151
taxmann.com 331
(Delhi)

The refund due to the petitioner in pursuance of the order of the appellate authority was not granted on the
ground that the decision of the appellate authority was erroneous and Revenue proposes to file an appeal
against the said decision as and when an appellate tribunal is constituted. The assessing officer also insisted
to file fresh refund application.
The High Court directed to grant the refund and rejected the insistence of Revenue to file fresh refund
application since proceedings emanated from petitioner filing applications for refund which was culminated in
Orders-in-Appeals passed by the appellate authority. Revenue cannot ignore the orders passed by the
appellate authority mainly on the ground that it proposes to file an appeal. Further there was no order passed
by the Court, staying the effect of the Orders-in-Appeal passed by the appellate authority. The respondent was
also taking no steps for securing orders to that effect. In view of the above, the petition was held liable to be
allowed

-

Snapshot-38-Snapshot of Latest GST Cases

Supply of goods by shops located at domestic Airport or Domestic Security Hold Area, is taxable
-SCN set aside as the same was devoid of reasons and thus registration restored.
-Refund cannot be withheld merely because the revenue has decided to file an appeal against the order
-Petitioner failed to file appeal within condonable period, demand stayed subject to deposit of tax as Tribunal not constituted
-Market Research Services not covered by Intermediary services

S.No

Section

Case Subject

Case

Held

1

Section 9
of CGST
Act,
Section 5
IGST Act

Supply of goods by
shops located at
domestic Airport or
Domestic Security Hold
Area, is taxable

A1Cuisines (P.) Ltd.
V. Union of India
[2023] 151
taxmann.com 189
(SC)

The Bombay High Court held that supply of goods by shops located at a domestic Airport or Domestic Security Hold Area, which are
before even the immigration clearance by a passenger are taxable since the transaction cannot be said to have taken place in any
area beyond the customs frontiers of India or outside India.
The SLP before the Supreme Court against the said judgement was dismissed.

2

Section
29 and
Section
30

SCN set aside as the
same was devoid of
reasons and thus
registration restored.

Rishiraj Aluminium
(P.) Ltd. v. Goods &
Service Tax Officer
[2023] 151
taxmann.com 163
(Delhi)

The High Court observed that SCN was deficient and it does not sufficiently disclosed reasons why petitioner's GST Registration was
suspended or was proposed to be cancelled. It is well settled that a SCN must clearly set out the reasons for proposing an adverse
action for noticee to respond. The High Court found merit in the petitioner's contention that he was at a loss as to how to respond to
the impugned show cause notice as it did not disclose any intelligible reason for proposing cancellation of the petitioner's registration.
The High Court thus set aside the show cause notice and petitioner's GST Registration was restored.

3

Section
54

Refund cannot be
withheld merely
because the revenue
has decided to file an
appeal against the order

G. S. Industries v.
Commissioner
Central Goods and
Services Tax [2023]
151 taxmann.com
162 (Delhi

The question was whether benefit of Order-in-appeal dated 03.01.2022 can be denied to the petitioner and refund amount be withheld
solely on the ground that the respondent had decided to file an appeal against the said order.
The High Court observed that respondent had not filed any appeal, and there was no order of any Court staying the order. Indisputably,
the order could not be ignored solely because according to the revenue, the said order is erroneous and is required to be set
aside. The High Court thus allowed the petition and directed to forthwith process refund including interest.
Cases Referred- Mr. Brij Mohan Mangla v. Union of India & Ors.: W.P.(C) 14234/2022 dated 23.02.2023

4

Section
107 and
Section
112

Petitioner failed to file
appeal within
condonable period,
demand stayed subject
to deposit of tax as
Tribunal not constituted

Laxman Barik v.
Joint Commissioner
of State Tax (Appeal)
[2023] 151
taxmann.com 161
(Orissa

There was delay in preferring appeal before appellate authority. The revenue contended that, Court may not be able to condone the
delay beyond four months, particularly when appellate authority has not been vested with discretion to condone the delay beyond one
month after lapse of three months from the date of communication of order.
The High Court held that since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate
tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand, the rest of
the demand was stayed during the pendency of the writ petition

5

Section
54 of
CGST
Act, 2017
and
Section
13 of
IGST Act,
2017

Market Research
Services not covered by
Intermediary services

Ohmi Industries Asia
(P.) Ltd v. Assistant
Commissioner,
Central Goods and
Services Tax [2023]
150 taxmann.com
409 (Delhi)

The petitioner provided services to an affiliated entity, OHMI Industries Ltd., Japan and entered into two separate agreements with
OHMI Japan, one for rendering Business Support Services and the other for providing Market Research Services. The petitioner filed
an application seeking refund of integrated tax on zero rated supply. The adjudicating authority rejected the refund application stating
that petitioner was providing support to the customers of OHMI, Japan directly meant that the petitioner was rendering intermediary
services. The High Court stated that the appellate authority failed to notice that the petitioner's appeal was confined only for refund of
integrated tax paid on invoices raised in respect of Market Research Services. The order passed by the adjudicating authority was
premised on the basis that petitioner was rendering services directly to the customers of OHMI, Japan. This was in the context of the
Business Support Services rendered by the petitioner to OHMI, Japan. In the present case, there was no dispute that petitioner had
rendered Market Research Services on its own; there was no allegation that it had arranged supply of services from a third party.
The High Court also referred to Circular dated 20.09.2021 (Circular No.159/15/2021-GST) and held that insofar as providing Market
Research Services is concerned, the petitioner cannot be held to be an intermediary. In view of the above, the petitions were allowed
and the impugned order was set aside. Case Referred- M/s Ernst And Young Limited v. Additional Commissioner, CGST
Appeals-II, Delhi and Anr.; W.P.(C) No.8600/2022 decided on 23.03.2023