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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 SECTION 142(3) OF CGST ACT, 2017 GRANTING REFUNDS IN CASH

GST UPDATE ON SECTION 142(3) OF CGST ACT, 2017 GRANTING REFUNDS IN CASH
GST UPDATE ON SECTION 142(3) OF CGST ACT, 2017 GRANTING REFUNDS IN CASH:- The provisions contained in section 142(3) of the CGST Act, 2017 as regards grant of refund claims in cash in GST era are beneficial in nature but at times the benefit of this provision is not being extended to the assessees by the revenue authorities. The present update seeks to discuss the practical problems faced by the assessee with respect to refund claims filed by them in pre-GST era but decided in post GST regime.    
 
Before proceeding further, it is pertinent to observe the provisions contained in section 142(3) of the CGST Act, 2017 which reads as follows:-
(3) Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944:
Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse:
Provided further that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act.
The above provision clearly states that the every claim of refund filed by any person shall be paid in cash. However, there are instances where the refund claim is allowed by way of credit even if the order is passed post implementation of GST. In this context, decision given by the Hon’ble Gujarat High Court in the case of M/S THERMAX LTD. VERSUS UNION OF INDIA [2019 (31) G.S.T.L. 60 (GUJ)] is worth noting wherein the Hon’ble Gujarat High Court by placing reliance on the provisions contained in section 142(3) of the CGST Act, 2017 upheld that the refund claim is to be granted in cash and not by way of re-credit. In this case, the contention of the revenue authorities was that since the assessee was not required to pay duty on export, the amount paid was not excise duty and so it cannot be considered as case of rebate of excise duty. However, the Hon’ble High Court concluded that as the government cannot retain any amount without authority of law, the same ought to be refunded back to the assessee and after implementation of GST, in light of the express provision, the refund should be paid in cash. The above decision will definitely serve as an aid to the assessee to enforce the provisions contained in section 142(3) of the CGST Act, 2017.
We wish to point one common difficulty being faced by many assessees who have filed refund claim of accumulated cenvat credit under the erstwhile Rule 5 of the Cenvat Credit Rules, 2004 wherein there was provision that the assessee was required to debit the amount of cenvat credit before filing refund claim. Many cases are being reported wherein it has been observed that the assessee has been placed at disadvantageous position in cases where the decision was passed in GST regime. This is for the reason that according to the first proviso to section 142(3) of the CGST Act, 2017, if any claim for refund of cenvat credit is rejected, the amount so rejected shall lapse. However, if the same assessees would have withdrawn their refund claim before implementation of GST regime and would have taken re-credit of the amount debited, the said amount would have been transitioned into the GST era. It is worth noting that second proviso also makes it clear that the amount of cenvat credit for which refund is being claimed should not have been carried forward in GST regime. Hence, if the claims of accumulated cenvat credit are decided adversely after implementation of GST, the assessees are placed at disadvantageous position. This is evident from the adverse decision by the Hon’ble Hyderabad Tribunal given in the case of UNITED SEAMLESS TUBULAR PVT. LTD. VERSUS COMMR. OF CENTRAL TAX, RANGAREDDY[2019 (28) G.S.T.L. 244 (TRI. – HYD.)].
Similarly, another practical problem faced by the assessee is regarding the refund of transportation/insurance charges included in the assessable value of goods for the purpose of central excise duty in case of rebate claims filed under Rule 18 of the Central Excise Rules, 2002. During the time when Central Excise Laws were prevalent, the rebate claim of certain expenses called as post removal expenses was granted to the assessee by way of re-credit in cenvat credit account. However, with the advent of GST, the assessee lost even the re-credits of post removal expenses for the rebate orders passed post implementation of GST on the grounds that the revenue authorities are not permissible to grant refund claim by way of re-credit in GST era.
Now, the question that arises is whether the decision given by the Hon’ble Gujarat High Court in the case of M/S THERMAX LTD. VERSUS UNION OF INDIA [2019 (31) G.S.T.L. 60 (GUJ)]will come to the rescue of the assessees in above cited cases wherein there is express adverse decision given by Hyderabad Tribunal. It is hoped that the court recognises the hardship faced by the assessees on account of change in law and suggests a convincing solution to the above cited problems faced by the assessees.   

This is solely for educational purpose.

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