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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 ON DELAY IN CONSTITUTION OF APPELLATE TRIBUNAL:- 100/2020-21

GST UPDATE ON DELAY IN CONSTITUTION OF APPELLATE TRIBUNAL:- 100/2020-21
GST Law has celebrated his 3rd Birthday recently and it is expected that it fulfils its objective of “Good and Simple Tax”. There are many advancements pending in its effective implementation, one of being the constitution of Goods and Services Tax Tribunal (GSTAT). As we all know that for any law to be able to operate smoothly, it is utmost necessary that the areas of disputes and litigation are resolved at the earliest as ‘justice delayed is justice denied’. However, one of the important aspect of GST law still remains un-noticed which is the constitution and functioning of the GSTAT. In today’s update, we will discuss about reasons for delay in constitution of GSTAT and its repercussions faced by the taxpayers.
 
The GST Appellate Tribunal is not constituted till date and it is worth mentioning that its constitution itself is being challenged before Madras High Court in the case of REVENUE BAR ASSOCIATION VERSUS UNION OF INDIA [2019 (30) G.S.T.L. 584 (MAD.)] wherein it was held that requirement that GST Appellate Tribunal benches consists of one Judicial Member, one Technical Member (Centre) and one Technical Member (State) are liable to be struck down as administrative members outnumbering judicial member violated Article 14 and 50 of the Constitution of India and Supreme Court judgments. It is submitted that when the composition of members in GSTAT itself is under dispute, its functionality is far from reality in near future. However, due to non-constitution of Tribunal, the taxpayers are facing many problems as recovery proceedings are being initiated against them for not challenging the order passed by the Commissioner Appeals. It is submitted that filing of Writ before High Court in the absence of GSTAT is a costly affair and every taxpayer cannot afford to knock the doors of High Court. However, in this context, reference may be made to Removal of Difficulty Order No. 09/2019-Central Tax dated 03.12.2019 wherein the time limit for filing appeal before GSTAT has been specified as three months from the date of communication of order or three months from the date on which President or the State President, of the Appellate Tribunal after its constitution under section 109 enters the office, whichever is later. Hence, the starting point of the time limit for filing appeal before the GSTAT has been deferred till the date when President/State President enters office. However, till the constitution of the GSTAT, the taxpayers will be facing the rigours of recovery proceedings being initiated against them.
 
According to section 78 of the CGST Act, 2017, any amount payable by a taxable person in pursuance of an order passed under this Act shall be paid by such person within a period of three months from the date of service of such order failing which recovery proceedings will be initiated. It is to be noted that this section can very well be invoked by the revenue authorities as there is no exception to initiation of recovery proceedings wherein the statutory time limit for filing appeal has not expired. The provision contained in section 107(7) and section 112(9) also provides stay against recovery of balance amount only where appeal has been filed along with compliance of the condition of mandatory pre-deposit and there is no other exception regarding non-recovery of dues by the department. In the past also, dispute regards recovery of dues wherein appeal was pending along with stay application before Tribunal arose when draconian Circular No. 967/01/2013-CX, dated 1-1-2013 was issued. The taxpayers were issued recovery notices even during pendency of stay application and taxpayers could get relief only by filing writ petitions before High Courts and ultimately, the circular was quashed. When, in the erstwhile indirect tax regime, recovery proceedings were initiated even during pendency of appeals, then it cannot be expected by the taxpayers that the revenue authorities would not resort to recovery proceedings in cases where there is delay in filing appeal before GSTAT on account of its non-constitution. The above view is supported by the recent decision given by the Hon’ble Delhi High Court in the case of ZONES CORPORATE SOLUTIONS VS COMMISSIONER [2020-TIOL-1168-HC-DEL-GST] wherein it was held that the revenue authorities cannot be allowed to withheld refund due to the fact that department is unable to prefer appeal against the order of Commissioner Appeals allowing refund before GSTAT for its non-constitution. Therefore, when refunds can be withheld, ignoring the principle of judicial discipline laid down by the Apex Court in the case of UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [1991 (55) E.L.T. 433 (SC)] wherein it was held that mere filing of appeal cannot be grounds for not following the judicial principle, the recovery proceedings can also be initiated by the department against the taxpayers.
 
Hence, it is hoped that the GSTAT is constituted and made operational at the earliest possible so that unnecessary harassment of assessees by initiation of recovery proceedings is avoided as every taxpayer is not competent to file writ petitions before High Courts for getting reliefs. 
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