GST Judgments Gujarat Archives - Tax Heal

Refund eligible of ITC received from Input Service Distributor lying unutilized due to exports : High Court

CA Satbir Singh — Sun, 06 Mar 2022 06:52:18 +0000

Refund eligible on ITC received from Input Service Distributor lying unutilized due to exports : High Court

HIGH COURT OF GUJARAT

IPCA Laboratories Ltd.

Commissioner

J.B. PARDIWALA AND MS. NISHA M. THAKORE, JJ.

SPECIAL CIVIL APPLICATION NO. 638 OF 2021

FEBRUARY 18, 2022

Anandodaya S. Mishra for the Petitioner. Nikunt K. Raval for the Respondent.

ORDER

J.B. Pardiwala, J.— By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

“A.		That this Hon’ble Court may be pleased to issue an appropriate a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India, ordering and directing the respondents themselves, their officers and subordinates to act upon or grant the petitioner refund of ITC on inward supply charged by the supplier and utilized IGST credit distributed by ISD and lying in Electronic Credit Ledger by quashing and setting aside the impugned order.
B.		and pass, such further order/orders for granting relief(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.”

2. The facts giving rise to this writ application may be summarized as under:

3. The writ applicant is a pharmaceutical company. One of the manufacturing facilities of the writ applicant – company is located in a Special Economic Zone at Kandla, Gandhidham. The writ applicant claims that it is authorized to operate as a Special Economic Zone at the Kandla SEZ, Kandla, Kutch and is engaged in the export of goods under the Letter of Undertaking (LUT) from the SEZ Unit. In the year 2017-18, the writ applicant accumulated Input Tax Credit (ITC) to the tune of Rs.21,66,887/-. The ITC accumulation was on account of :

“i.		During the period from July 2017 to March 2018, the company has received Input Tax Credit in respect of ISD credit to the petitioner amounting to Rs.18,67,578/-.
ii.		Further the petitioner had accumulated ITC of GST paid by the petitioner in case of inward supplies received for export of goods as charged by the supplier amounting to Rs.2,99,289/-.”

4. The writ applicant received the aforesaid Input Tax Credit of the integrated tax from its ISD and ITC inward supply charged by the supplier as is permissible under the law. It is the case of the writ applicant that being a SEZ Unit making Zero Rated Supplies under the GST, the writ applicant has not been utilized the credit and the same is lying unutilized in the Electronic Credit Ledger.

5. In such circumstances referred to above, the writ applicant filed the refund application in Form GST RFD – 01A on 3rd April 2019. No sooner the writ applicant filed the above refund application, a show cause notice in Form GST RFD – 08 dated 17th May 2019 came to be issued calling upon the writ applicant to show cause on the following:

“a.		The petitioner is situated in Kandla SEZ and as per the CGST Act the supply of goods and/or services to SEZ unit is zero rated hence the petitioner is not eligible for refund under Section 54 of the Central Goods and Services Act, 2017 (hereinafter referred to as CGST).
b.		The refund filed by the petitioner cannot be processed under any category of refund specified under manual refund processing circular No.17/17/2017-GST, dated 15.11.2017 circular No.24/24/2017-GST dated 21.12.2017.
c.		For the supply received from outside SEZ, SEZ unit is not supposed to pay any tax whether under forward charge or reverse charge mechanism and for the supply received from another unit within SEZ, any and all such supplies have no tax treatment and therefore there is no question of forwarded charge or reverse charge tax payment. SEZ unit is not supposed to pay any tax and thus there would be no question of ITC.
d.		That till date no circular, notification / relevant guidelines have been issued by the board providing guideline to process GST refund claim application of units situated in Special Economic Zones in respect of tax paid on inward supplies. Therefore in absence of any circular / notification / relevant guidelines to process GST refund claim application of units situated in SEZ, this office is unable to process the refund application.”

6. The Assistant Commissioner, thereafter, proceeded to pass an order in Form GST RFD – 06 dated 27th May 2019 rejecting the refund claim of the writ applicant of Rs.21,66,867/- under Section 54 of the CGST Act, 2017.

7. The writ applicant, thereafter, preferred an appeal before the appellate authority i.e. the Joint Commissioner (appeals). The Joint Commissioner dismissed the appeal.

8. In such circumstances referred to above, the writ applicant is here before this Court with the present writ application.

9. We have heard Mr. Anandodaya Mishra, the learned counsel appearing for the writ applicant and Mr. Nikunt Raval, the learned Senior Standing Counsel appearing for the respondents.

10. The issue raised in the present writ application is no longer res integra in view of the judgement and order passed by this Court dated 11th March 2020 in the case of M/s. Britannia Industries Limited vs. Union of India [Special Civil Application No.15473 of 2019]. We take notice of the fact that M/s. Britannia Industries Limited(supra) is based on M/s. Amit Cotton Industries vs. Principal Commissioner of Customs [Special Civil Application No.20126 of 2018 decided on 27th June 2019].

11. In view of the aforesaid, the writ applicant could be said to be entitled to claim the refund of the IGST lying in the Electronic Credit Ledger as there is no specific supplier who can claim the refund under the provisions of the CGST Act and the CGST Rules as Input Tax Credit is distributed by the input service distributor.

12. For the foregoing reasons, this writ application succeeds and is hereby allowed. The impugned order is hereby quashed and set aside. The respondents are directed to process claim of refund made by the writ applicant for the unutilized IGST Credit lying in the Electronic Credit Ledger under Section 54 of the CGST Act 2017. Let this exercise be undertaken at the earliest and completed within a period of three weeks from the date of receipt of the writ of this order. Direct service is permitted.

No confiscation of goods due to bogus billing practice

CA Satbir Singh — Wed, 18 Mar 2020 06:54:11 +0000

It was submitted that in the absence of any discrepancy in the documents and the goods, it is not permissible for the respondents to confiscate either the vehicle or the goods.

HIGH COURT OF GUJARAT

Raj Chamunda Roadlines

State of Gujarat

HARSHA DEVANI AND SANGEETA K. VISHEN, JJ.

R/SPECIAL CIVIL APPLICATION NO. 20021 OF 2019

NOVEMBER 15, 2019

D.K. Puj for the Petitioner.

ORDER

Ms. Harsha Devani, J. – Mr. Kavi Patel, learned advocate for Mr. D.K. Puj, learned advocate for the petitioner invited the attention of the court to Form GST-MOV-02 to submit that the vehicle in question together with the goods came to be detained by the respondent No.2 for the purpose of verification. By an order made in Form GST-MOV-03, the time for inspection came to be extended for a further period of three days. It was pointed out that accordingly physical verification of the goods came to be carried and Form GST-MOV-04 came to be issued wherein no discrepancy was found in respect of the goods in question. It was submitted that despite the aforesaid position, the respondents have proceeded under section 130 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the “CGST Act”) by issuing notice in Form GST-MOV-10 on the ground that after checking the dealers record according to the GST system, the dealer appears to be involved in bogus billing practice or making false claim of ITC for the period of August, 2019 and September, 2019. It was submitted that thereafter, on the same ground an order has been passed under section 130 of the CGST Act confiscating the goods and the vehicle in question.

2. It was submitted that in the absence of any discrepancy in the documents and the goods, it is not permissible for the respondents to confiscate either the vehicle or the goods.

3. Having regard to the submissions advanced by the learned advocate for the petitioner, issue notice, returnable on 18th November, 2019.

4. Direct service is permitted, today.

No detention of goods After payment of GST & Penalty: HC

CA Satbir Singh — Sat, 08 Jun 2019 14:09:47 +0000

Gujarat High Court

Shree Radhe Steel Vs State of Gujarat

No. Special Civil Application No. 7065 of 2019

Dated : 10/04/2019

1. A perusal of the Notice for Confiscation of Goods or Conveyance and Levy of Penalty under section 130 of the Central Goods and Services Tax Act, 2017 read with the relevant statutory provisions (Annexure-A to the petition) indicates that the same is undated. In paragraph 4 of the notice, it is stated that subsequently, after observing the principles of natural justice, an order demanding the applicable tax and penalty was issued in FORM GST MOV-09 on 9.3.2019 and the same was served on the person in charge of the conveyance. However, neither the owner of the goods nor the person in charge of the conveyance came forward to make the payment of applicable tax and penalty within the time allowed in the order passed supra. In paragraph 8, the petitioner is directed to appear before the signatory to the said order on a date which is blank.

2. Heard Mr. Uchit Sheth, learned advocate for the petitioner.

3. Issue Notice to the respondents returnable on 12^thApril, On the returnable date, the respondents shall produce before this court the order dated 9.3.2019 which finds reference in paragraph 4 of the order (Annexure-A) and point out as to what time was allowed to the owner of the goods or the person in charge of the conveyance to pay the applicable tax and penalty.

4. In the present case, the petitioner has made a categorical averment in the petition that the amount of tax and penalty has been paid. Under the circumstances, there is no reason for the respondents to withhold the release of the truck in question together with the goods. Under the circumstances, the respondents are directed to forthwith release Truck No.GJ-01-DT-5949 along with the goods contained therein.

Direct service is permitted today.

Free Study Material on Eway Bill System of India

GST Advance ruling not passed in 90 days , Writ Petition Accepted by HC

CA Satbir Singh — Tue, 21 May 2019 05:54:09 +0000

HIGH COURT OF GUJARAT

Sonal Products

State of Gujarat

MS. HARSHA DEVANI AND BHARGAV D. KARIA, JJ.

R/SPECIAL CIVIL APPLICATION NO. 6248 OF 2019

MARCH 28, 2019

D.K. Puj for the Petitioner.

ORDER

Ms. Harsha Devani, J. – Mr. D.K. Puj, learned advocate for the petitioner, has submitted that though alternative remedy of appeal has been provided under section 100 of the Central Goods and Service Tax Act, 2017 as well as the Gujarat Goods and Service Tax Act, 2017, the appellate authority has not been appointed yet.

2. It is pointed out that sub-section (6) of section 98 of the Central Goods and Service Tax Act, 2017 provides that the authority shall pronounce its advance ruling in writing within 90 days from the date of receipt of application. It was submitted that, in this case, the application was made on 07.10.2017 whereas, the impugned order has been passed on 22.02.2019. It was further submitted that the matter was heard by a single Member whereas, the impugned order has been signed by two Members. It was submitted that in the interregnum, between the date of application and between the date of advance ruling by the authority, various other authorities have decided the issue in favour of the applicant therein by holding that the goods would be classified as ‘papad’ in classification no.1905 90 40.

3. Having regard to the submissions advanced by the learned advocate for the petitioner, issue Notice, returnable on 24.04.2019.

Direct service is permitted.

GST Advance Ruling : Free Study Material

No Advance ruling if tender not allotted as goods and services will not be supplied :AAR

No Advance Ruling on place of supply of services : AAR

No Advance ruling on question already pending in any other proceeding under the GST: AAR

No GST Advance Ruling on Export of Goods: AAR

No GST Advance Ruling for Past period activity : AAR

Application of advance ruling under GST rejected due to non-payment of fees

No Advance Ruling can be given on TDS Liability under GST : AAR

Receiver of Services can not apply GST Advance Ruling : AAR

GSTR 3B filing allowed without payment of GST by HC

CA Satbir Singh — Fri, 10 May 2019 10:32:48 +0000

Gujarat High Court

Octagon Communications Pvt Ltd Vs Union of India

Special Civil Application No. 5873 of 2019

Date of Judgement: 18/04/2019

1. Despite service of notice, there is no appearance on behalf of the respondents No.2 and 3.

2. Uchit Sheth, learned advocate for the petitioner has submitted that there is no condition for making payment of tax as a pre-condition for filing return of Form GSTR-3B. It was submitted that in the absence of any such provision, the on- line system of the respondents which does not allow filing of returns without payment of tax liability admitted as per such returns is contrary to legal provisions. It was further submitted that if the petitioner is not able to file return in Form GSTR-3B by 20th April, 2019 the petitioner would be deprived of input tax credit.

3. Having regard to the urgency of the matter and the fact that there is no response from the respondents No.2 and 3, by way of ad-interim relief, the petitioner is permitted to file manual returns in Form GSTR-3B for the months November, 2017 onwards, which would be subject to final outcome of the petition. Stand over to 13th June, 2019.

Direct service is permitted today.

How to download GSTR 3B filed Return from GST Portal

GSTR 3B & ITC Utilization Confusion of Rule 88A CGST

GSTR 3B Late fees Changes from 1st April 2019 [Video]

GSTR3B Offline Utility : Download

GSTR 3B due Date

What is the late Fees for not filing GSTR 3B on due dates ?

Penalty for Delayed filing of GSTR 3B Return : CBIC Clarified

Circular No 89/08/2019 GST : Penalty for wrong reporting in GSTR 3B & GSTR 1

No Reversal of Incorrect Input Tax Credit through GSTR 3B

What is the late Fees for not filing GSTR 3B on due dates ?

Exporters advised to file Table 6A and GSTR 3B for IGST Refund : Govt Press release