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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 RETROSPECTIVE AMENDMENT IN SECTION 50

GST UPDATE ON RETROSPECTIVE AMENDMENT IN SECTION 50
The budget 2022 has made considerable changes in the CGST Act, 2017 and has tried to remove anomalies prevalent in the various sections of the CGST Act, 2017. The matching concept could not be operationalised since the inception of GST and it was perceived as far possibility to develop sufficient infrastructure for the same. Consequently, the provisions related to matching concept being section 42, 43 and 43A of the CGST Act, 2017 have been deleted. Similarly, section 50(3) of the CGST Act, 2017 has been amended retrospectively w.e.f. 01.07.2017 to rectify the drafting error in the said section. The analysis of the retrospective amendment made in section 50(3) of the CGST Act, 2017 is the subject matter of discussion of our present update. The provision of section 50(3) of the CGST Act, 2017 prevalent as of now, reads as follows:- (3) A taxable person who makes an undue or excess claim of input tax credit under sub-section (10) of section 42 or undue or excess reduction in output tax liability under sub-section (10) of section 43, shall pay interest on such undue or excess claim or on such undue or excess reduction, as the case may be, at such rate not exceeding twenty-four per cent., as may be notified by the Government on the recommendations of the Council. Moreover, the notification no. 13/2017-Central Tax dated 28.06.2017, prescribing interest rate has reference of section 50(1) specifying interest rate as 18% and states interest rate of 24% for section 50(3). Now, the question arises is the applicable interest rate for wrongful availment and utilisation of input tax credit for reason other than matching concept which is not made operational till date. There is no specific provision in section 50 of the CGST Act, 2017 covering situations wherein the interest is leviable for wrongful availment and utilisation of input tax credit for various other reasons such as ineligible credit under section 17(5) availed by the assessee or inadvertently credit taken twice by the assessee. In such cases, there was confusion as regards the applicability of interest rate as 18% or 24% or 0% as there is no specific provision for the same. It is worth mentioning that this lacunae in the provision of section 50 was pointed by us in our earlier GST update titled- MADARS HC DECISION ON LEVY OF INTEREST ON WRONG AVAILMENT OF ITC. It is submitted that the hon’ble Madras High Court in the case of M/S F1 AUTO COMPONENTS PVT. LTD. [W.P. NO. 6631 OF 2021] had concluded that since the provisions of section 42 were not invoked in the case of petitioner, they were not required to pay interest rate of 24% but were required to pay interest of 18% for the wrongful availment and utilisation of input tax credit. While analysing the reasoning adopted by the Hon’ble High Court, we had pointed that as per the provisions contained in section 50 of the CGST Act, 2017, section 50(3) only covers the situation of wrongful availment and utilisation of input tax credit under section 42/43 of CGST Act. Consequently, once it is held that provisions of section 42/43 are not applicable, interest should not be leviable for wrongful availment and utilisation of credit. It appears that the government has realised the drafting lacunae and has resorted to rectification of the said provision. The retrospective amendment as proposed in the Finance Bill, 2022 reads as follows:- “(3) Where the input tax credit has been wrongly availed and utilised, the registered person shall pay interest on such input tax credit wrongly availed and utilised, at such rate not exceeding twenty-four per cent. as may be notified by the Government, on the recommendations of the Council, and the interest shall be calculated, in such manner as may be prescribed.” It is worth noting that simultaneously retrospective amendment has been made in the notification no. 13/2017-Central Tax dated 28.06.2017 prescribing 18% for section 50(3). On harmonious construction of the above amendments, after enactment of the Finance Act, 2022, the wrongful availment and utilisation of input tax credit will be liable to interest at the rate of 18%. It is submitted that the above amendment on the one hand confirms the levy of interest on wrongful availment and utilisation of credit by removing the drafting error in section 50 while on the other hand provides benefit to the assessee that interest is not payable on mere wrongful availment of input tax credit. The issue regarding levy of interest on mere wrongful availment of interest is decided in favour of the assessees. Reference may be made to the decision given by the Hon’ble Patna High Court in the case of M/S COMMERCIAL STEEL ENGINEERING VS STATE OF BIHAR [W.P. NO. 2125 OF 2019] wherein it was concluded that interest is to be charged only if the wrongful availment of input tax credit has resulted in short payment of tax by the assessee. Therefore, the amendment seeks to reduce the possibility of litigation as regards interest liability on wrong availment and utilisation of input tax credit in future
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