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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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PJ/Case Law/2018-2019/3459

Whether a request by the appellant for his matter of issue to be dealt by some other officer would be accepted or not?
Case:AROKIYA FOODS
Citation:2018 (13) G.S.T.L. 142 (Mad.)
Issue:  Whether a request by the appellant for his matter of issue to be dealt by some other officer would be accepted or not?
Brief facts:The petitioner is a registered dealer on the file of the 3rdrespondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act). The petitioner is aggrieved by an order passed by the 2nd respondent dated 4-4-2017 based on a representation given by the petitioner with regard to levy of tax and penalty on the sale of idli and dosai maavu (batter) for the assessment years 2009-2010 to 2016-2017. The petitioner requested for waiver of the amount which has been demanded.
Appellant’s contention: The petitioner’s contention is that earlier the petitioner had approached the authority for clarification and advance ruling, who had clarified vide order dated 30-12-2016 which is a Review Order stating as follows :
Idly Wet Maavu (Battar), Doasai Wet Maavu (Batter), Addai Wet Maavu (Batter) sold without brand name are liable to tax at 5% under Entry 51 of Part B of the First Schedule to the TNVAT Act, 2006. The clarification issued already in ACAAR No. 11/2013-14 (Acts Cell-II/13137/ 2013) is reiterated.
(However, branded - Idly Wet Maavu (Batter), Dosai Wet Maavu (Batter), Addai Wet Maavu (Batter) are taxable at 12.5% for the period from 1-4-2008 to 31-3-2010 and at the reduced rate of 4% between the period from 1-4-2010 and 11-7-2011 as per Notn. No. II(l)/CTR/ 4(b-1)/2010 published in G.O. Ms. No. 33 CT & R(B2), dated 29-3-2010; and at the rate of 5% from 12-7-2011 onwards as per Notn. No. II(1)/CTR/12(R-29)/2011 published in G.O. Ms. No. 78 CT & R(B2), dated 11-7-2011.”
The petitioner did not challenge the order passed by the Advance Ruling Authority but thought fit to approach the Government for seeking waiver. However the appellant clarifies that this application has been rejected by the 2ndrespondent.The Learned Counsel for the petitioner submitted that since the 2nd respondent was party to the decision passed by the advance ruling authority, the matter should have been dealt with by some other officer of equivalent cadre, since the 2nd respondent has rendered certain finding with regard to the clarification of the goods. Strictly speaking, there will not be any conflict of interest nor the principle that ‘No one can be a Judge of his own cause’ would apply, but however, to ensure that there is fairness in approach and to ensure that justice is done to the parties, it would have been better if the file had been assigned to some other officer of equivalent cadre as that of the 2nd respondent, who can take a decision on the application for waiver on merits and in accordance with law.
Respondent’s Contention and reasoning of Judgement:
TheCourt passed the following interim order:
It has submitted by the Learned Counsel for the petitioner that the petitioner applied for a clarification before the authority for clarification and advance ruling and an order came to be passed on 30-12-2016, in which the Commissioner of Commercial Taxes is also a party to the decision. Subsequently, the petitioner submitted a waiver proposal dated 23-1-2017 to the Secretary to Government, Commercial Taxes and Registration Department and the same has been returned to the petitioner by the Commissioner of Commercial Taxes vide impugned proceedings dated 4-4-2017. It is further submitted that the Commissioner of Commercial Taxes is also the Secretary to Government, Commercial Taxes and Registration Department and the application should be dealt with by the Government and therefore, the Commissioner of Commercial Taxes should place the matter before the Government and the matter to be decided by a different Secretary as the present Commissioner was a party to the decision dated 30-12-2016.
Mr. K. Venkatesh, Learned Government Advocate accepts notice for the respondents and seeks time to get instructions in the matter.
Thus, considering the peculiar facts and circumstances of the case, without expressing anything on the manner in which the 2nd respondent has passed the impugned order and with a view to ensure that justice is not only done, but it should be seen to be done, the matter is directed to be placed before some other officer of equivalent cadre.
Decision: The Writ Petition is allowed and the impugned order is set aside with a direction to the 1strespondent to place the files before some other officer of equivalent cadre so that a decision can be taken on the application filed by the petitioner for waiver. An opportunity of personal hearing shall be granted to the authorized representative of the petitioner before a decision is taken on the application. Pending disposal of the writ petition, the petitioner had the benefit of an interim order. The said order shall continue till the above direction is complied with and no coercive action shall be initiated against the petitioner. The above direction shall be complied with as expeditiously as possible preferably within a period of three weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
Comment: The gist of this case is that the request by the appellant for his matter of issue to be dealt with by some other officer would be accepted because of the obvious reasons stated in the Study.
Prepared by:  Adit Gupta
 
 
 
 
 
           
 

 
 
  
 
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