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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST Update on recent clarification on refund related issues - 006/2020-21

GST Update on recent clarification on refund related issues - 006/2020-21

 

CBIC has issued circular no.135 dated 31.03.2020 wherein Government has issued certain clarifications in respect of refunds related to exports under GST. The summary of the clarifications have been provided below-

1. It has been decided to remove the restriction on clubbing of tax periods across Financial Years. This was decided in 39th GST council meeting and accordingly, circular No. 125/44/2019-GST dated 18.11.2019 is rescinded to the extent i.e. the restriction on bunching of refund claims across financial years shall not apply. We have already informed you in our earlier update about this decision in the GST council meeting.

Hon’ble Delhi High Court in Order dated 21.01.2020, in the case of M/s Pitambra Books Pvt Ltd. has stayed the rigour of paragraph 8 of Circular No. 125/44/2019-GST dated 18.11.2019 in which such restriction was imposed and has also directed the Government to either open the online portal so as to enable the petitioner to file the tax refund electronically, or to accept the same manually. Hon’ble Delhi High Court has observed that the Circulars can supplant but not supplement the law. Circulars might mitigate rigours of law by granting administrative relief beyond relevant provisions of the statute, however, Central Government is not empowered to withdraw benefits or impose stricter conditions than postulated by the law. This clarification is big relief to all taxpayers because if goods were received in the month of March 2019 and export was made in April 2019, then the taxpayers would apply refund for the period March 2019 to May 2019. Earlier, this was debarred but this clarification removed such restriction.

2. Refund of accumulated input tax credit (ITC) on account of reduction in GST Rate- In case the tax rate on input reduces e.g. From 18% to 12% and due to this reduction, the tax rate on input and output stands same. Then, the taxpayer cannot claim refund of inverted duty tax structure under section 54(3) of the CGST Act, 2017. It is noteworthy that, the input and output being the same in such cases, though attracting different tax rates at different points in time, do not get covered under the provisions of clause (ii) of sub-section (3) of section 54 of the CGST Act.

3. Change in manner of refund of tax paid on supplies other than zero rated supplies- Refund in the following cases –

i. Refund of excess payment of tax;

ii. Refund of tax paid on intra-State supply which is subsequently held to be inter State supply and vice versa;

iii. Refund on account of assessment/provisional assessment/appeal/any other order;

 iv. Refund on account of “any other” ground or reason

shall now be sanctioned in the same proportion in which the cash and credit ledger has been debited for discharging total tax liability. This allows for sanctioning of refund by re credit the electronic credit ledger by the department. This clarification has been given in alignment of the insertion of rule 86(4A) and 92(1A) in the CGST Rules, 2017 vide notification no. 16/2020-Central Tax dated 23.03.2020. It may be noted that the above restriction would not apply to refund of ITC on account of zero rated supplies and deemed exports.

A detailed update on this issue has already being circulated amongst our netizens for more clarifications.

4. Guidelines for refunds of Input Tax Credit under Section 54(3)- It has been decided that the refund of accumulated ITC shall be restricted to the ITC as per those invoices, the details of which are uploaded by the supplier in FORM GSTR-1 and are reflected in the FORM GSTR-2A of the applicant. Accordingly, para 36 of the circular No. 125/44/2019-GST, dated 18.11.2019 stands modified to that extent. This clarification was much required after enactment of Rule 36(4) in the CGST Rules, 2017. It is noteworthy to mention that such restriction has not been imposed in the Act or rules. Circular inconsistent with the Act or Rules is void ab-intio and cannot be implemented. The landmark judgment given in the case of Dhiren Chemicals was reversed in the case of Commissioner of Central Excise, Bolpur v/s M/s Ratan Melting & Wire Industries [2008-TIOL-194-SC-CX-CB]. In this case, it was held that the Board circular will not prevail over the Order of the Supreme Court. It was further held that a circular which is contrary to the statutory provisions has no existence in law. This circular will create a havoc among taxpayers as already refund sanction process takes time and such restrictions will block their working capital for indefinite period. When the Rule 36(4) allows 10% extra credit then how it can be denied in the refund claim and that too by a circular. There should be provision in the Act for the same.

5. New Requirement to mention HSN/SAC in Annexure ‘B’- We are already aware of the fact that HSN wise details of goods and services are not available in FORM GSTR-2A and therefore it becomes very difficult to distinguish ITC on capital goods and/or input services out of total ITC for a relevant tax period. Now the applicant shall be required to mention HSN/SAC code in annexure B which is mentioned on the inward invoices. In cases where supplier is not mandated to mention HSN/SAC code on invoice, the applicant need not mention HSN/SAC code in respect of such an inward supply. Already uploading of refund claim is a very tedious job. We have already highlighted the same in our GST Johnny update. But now requiring further information will be impossible task. Moreover, the distinction of capital goods and inputs cannot be done on the basis of HSN code. One HSN code say bearings 8482 might be capital goods for a manufacturer but it will be input for machine manufacturer. Hence, deciding input and capital goods on the basis of HSN code will be difficult task.

This is solely for educational purpose.

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