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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE No 250 ON CONTROVERSY REGARDING ADJUDICATING AUTHORITY

GST UPDATE No 250 ON CONTROVERSY REGARDING ADJUDICATING AUTHORITY
The meaning of adjudicating authority is very important, particularly when we talk about litigation framework in GST. The provision contained in section 107 pertaining to appeals to appellate authority state that any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. Hence, in order to prefer an appeal before the appellate authority, the order should be passed by adjudicating authority. In our earlier GST update we had analysed the decision given by hon’ble Uttarakhand High Court in the case of VINOD KUMAR VERSUS COMMISSIONER UTTARAKHAND wherein writ petition filed was contested by the department on the grounds of alternate remedy available. However, hon’ble Uttarakhand High Court at Nainital concluded that “Commissioner” is excluded from the definition of ‘adjudicating authority’ under section 2(4) of the Uttarakhand Act and so the order passed is not appealable under section 107 of the CGST Act, 2017 by placing reliance on the Apex Court decision in the case of RADHA KRISHNA INDUSTRIES V/S STATE OF HIMACHAL PRADESH AND OTHERS. The reasoning adopted and the implications of the same are subject matter of discussion of our present GST update. 
 
The hon’ble Supreme Court in the case of RADHA KRISHNA INDUSTRIES V/S STATE OF HIMACHAL PRADESH AND OTHERShad deliberated on the issue that whether the provisional attachment order passed under section 83 of the CGST Act, 2017 by the Commissioner was appealable under section 107 of the CGST Act, 2017. It was held that as per the definition of adjudicating authority given under section 2(4) of the HPGST Act, 2017, “adjudicating authority”means any authority, appointed or authorized to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal”. Accordingly, the Commissioner or its delegate such as Joint Commissioner was not treated as adjudicating authority and so the order passed by them were not appealable under the section 107 of the CGST Act, 2017. This analogy was followed by the Hon’ble Uttarakhand High Court by holding that the order of cancellation of registration passed by the Assistant Commissioner was not appealable. This is for the reason that when the Commissioner is excluded from the definition of adjudicating authority, its delegate officer will also not be considered as adjudicating authority and so the writ petition is maintainable before the High Court.
 
It is worth mentioning that appeals are being regularly filed under section 107 of the CGST Act, 2017 which include refund orders being rejected by Assistant Commissioner of GST. Moreover, even appeals against cancellation of GST registration orders passed by the Assistant Commissioners are being filed in the normal course. This anomaly has cropped due to difference in the definition of adjudicating authority in the CGST Act, 2017 and the respective State GST Acts. The definition of adjudicating authority under section 2(4) of the CGST Act, 2017 reads as follows:-
(4) ?adjudicating authority means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Central Board of Indirect Taxes and Customs, the Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of section 171 (Anti-Profiteering);
 
On the contrary, the definition of adjudicating authority given under section 2(4) of the State GST Act, 2017 reads as follows:-
“adjudicating authority”means any authority, appointed or authorized to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal”
 
It is submitted that while CGST Act, 2017 excludes the CBIC from the definition of adjudicating authority being the highest one, the State Laws exclude Commissioner from the definition of adjudicating authority which has led to complications in interpretation of the law. It is worth mentioning here that as the hon’ble Supreme Court considered the definition of “adjudicating authority” as per the State GST Law, it has concluded that orders passed by the Commissioner or its subordinates as authorised by Commissioner would not be considered as passed by adjudicating authority and so will not be appealable under section 107 of the CGST Act, 2017.
 
The above interpretation rendered by the Supreme Court has far reaching consequences as the assessees falling under jurisdiction of State GST Department can contend that the orders passed under the respective State GST Act are not appealable but rather directly approachable to High Court which is not the intention of the legislature. This view will collapse the entire appellate machinery evolved in the GST regime as it will render almost all orders as non-appealable because the provisions of CGST Act and State GST Act are applied simultaneously in conjunction with each other.
 
The GST Law was formulated with the objective of uniform taxation throughout the country but the implementation of CGST Act along with respective State GST Act has led to disparity in various provisions of the law. The definition of “adjudicating authority” plays a crucial role and if the said definition is different in both the Acts, it will definitely be a point of great concern for the assessees. The analogy adopted by the Supreme Court can hamper the normal appeal mechanism prevalent and in operation as on date. It is hoped that the government resorts to prompt action in this regard so that unwarranted litigation is avoided as already High Courts are being flooded with petitions due to non-operation of GST Appellate Tribunal.
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