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Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

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GST UPDATE No 159 ON CHALLENGING SCN BY WRIT PETITION

GST UPDATE No 159 ON CHALLENGING SCN BY WRIT PETITION
The taxation statue prescribes a mechanism for the assessee to defend their case whenever demand is raised against them. The hierarchy of litigation in GST law is issuance of show cause notice for adjudication of the case leading to passing of order in original. Appeal may be filed before the first appellate authority, i.e., Commissioner Appeals against the order in original by the person aggrieved with the said order. The Commissioner Appeals pass Order in Appeal, deciding the appeal filed before it which can be further appealed to the Tribunal constituted under the statue. Thereafter, the appeals may be preferred to High Court and finally to the Supreme Court. Every assessee is required to pass this stipulated channel in order to get justice. Now, the question arises is whether it is permissible for the assessee to knock the doors of High Court at the show cause notice stage itself? This issue was recently dealt with by the Hon’ble Orissa High Court in the case of SRI RAJENDRA NARAYAN MOHANTY V/S CT GST CUTTACK. The analysis of this decision is the subject matter of discussion of our present update. The petitioner received TDS for the months October 2018, November 2018, January 2019, February 2019 and March 2019 for the Financial Year 2018-19. However, tax liability was not discharged by them because “NIL” liability was disclosed by the petitioner while filing GSTR-3B. The petitioner submitted that while filing Annual Return as on 20.12.2020 for FY 18-19, correct figures were disclosed by them. The petitioner contended that the proper officer restricted them from availing input tax credit from their credit ledger and submitted that instruction cannot have overriding effect over provisions of statue. Further, the petitioner contended that the proper officer has no jurisdiction to invoke provisions in the present case. Therefore, writ petition is filed in the High Court by the petitioner without filing reply to the show cause notice. The High Court held that the petitioner filed writ petition without replying to the objections raised in the show cause notice and thus, writ petition is not maintainable. Reliance was placed on the decision of Hon’ble Supreme Court in the case of UNION OF INDIA V/S COASTAL CONTAINER TRANSPORTERS ASSOCIATION wherein it was held that writ petition will not be entertained in case alternate remedy is available under statue. The Court held that the petitioner ought to have responded to the show cause notice and follow a proper channel before approaching the High Court. The petitioner during the course of hearing submitted that although input credit is utilized against payment of output tax but no interest is paid against delayed payment. The Court ordered petitioner to file reply within a period of 15 days and directed the proper officer to pass appropriate order after considering the submissions made by the petitioner. We all are aware that as the GST Appellate Tribunal has not been constituted till date, the High Courts are already flooded with petitions. Moreover, the burden of litigation in High Courts is substantial and so petitions cannot be preferred to High Courts for taxation matters wherein hierarchy of litigation is pre-defined. However, we all know that exceptions are always there and High Courts have exercised their discretionary powers many times for serving justice to the assesses. In this context, reference may be made to the Apex Court judgment rendered in the case of ASSISTANT COMMISSIONER OF STATE TAX VERSUS COMMERCIAL STEEL LTD. [2021 (52) G.S.T.L. 385 (S.C.)] wherein it has been held that the High Court has power to exercise writ jurisdiction in the following circumstances-breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction or challenge to the vires of the statue or delegated legislation. The High Courts refuse to grant any relief in cases other than the exceptions as stated and directs the assessee to follow the prescribed dispute channel as prescribed in the Statue. Similarly, reference may be made to the following judicial pronouncements wherein the view of the High Court regarding dismissal of writ petition in case of availability of statutory alternate remedy was upheld:- • R.K. ANGANGBI SINGH V. COMMISSIONER – [2016 (332) E.L.T. A247 (S.C.)] • VISHNU & COMPANY PVT. LTD. V. SUPERINTENDENT – [2016 (332) E.L.T. A141 (S.C.)] • UNION OF INDIA VERSUS RUBBER PRODUCTS LTD. [2015 (326) E.L.T. 232 (S.C.)] • GENERAL CEMENT PRODUCTS LTD. V. COMMISSIONER – [2015 (323) E.L.T. A21 (S.C.)] • [SIMPLEX INFRASTRUCTURE LIMITED V. UNION OF INDIA - 2015 (321) E.L.T. A208 (S.C.)] The above decisions clearly indicate that the assessee should be cautious while filing writ petitions against show cause notice because High Courts entertain writs only if the case is covered by exceptional circumstances. Filing writ petition without filing reply to the show cause notice has the inherent risk of expiry of the time limit for filing reply. Therefore, the decision of challenging show cause notice by way of filing writ petition should be exercised judiciously.
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