Top GST Judgement in July 2020 (High Court / AAR/ AAAR/ NAPA)

SI

Case

Brief Judgement

1

Subhash Joshi & another Vs Director General of GST Intelligence (DGGI) & Ors. (Madhya Pradesh High Court) dated 03.07.2020

Having regard to position in law and the fact that no such legal right has been pointed out for the presence of an Advocate during search and seizure, the prayer to carry out the search and seizure operation in the presence of the petitioner cannot be accepted.

2

P.R. Mani Electronics Vs Union of India (Madras High Court)) dated 13.07.2020

Transitional Credit eligible only when claimed within time (Rule 117 prescribing time limit to avail transitional ITC held as intra vires Section 140 - ITC are concession and not a vested right)

3

M/s. Genpact India Pvt. Ltd., Gurgaon versus Union of India and Others- CWP-10302-2020, High Court of Punjab and Haryana)

Dept. considered Genpact as an intermediary, denied refund on export of services; P&H HC accepted Genpact's WRIT (Source Taxmann) issue are whether (i) BPO qualifies as Intermediary (ii) Section 168 of CGST Act (Power to issue instructions or directions) is constitutionally valid & (iii) HC can be directly approached in absence of Tribunal; Petitioner claims that the First Appellate Authority has illegally relied upon a Circular No. 107 dated July 18, 2019, which was withdrawn vide Circular No. 127.

4

M/S Pitambra Books Pvt. Ltd V. Union Of India & Ors.- W.P.(C) 627/2020, High Court of Delhi

Delhi HC directs Dept. to process manual refund application spread over 2 FYs within 3 working days (Taxmann)

CBIC vide Circular No.135/05/2020 - GST dated 31 March 2020 has removed the impugned restriction and allowed filing of a single refund application covering tax periods of two different financial years.

5

Bansal sales corporation vs union of India trough secretary ministry of finance and Ors (W.P. (C) 4409/2020 & CM APPL.15926/2020, DELHI HIGH COURT)

GST Authorities that no coercive steps shall be taken for recovery from the petitioner without following the adjudication process u/s 73 / 74 of CGST Act. DELHI HC DECISION: No coercive steps shall be taken for recovery of the said demand without following the adjudication process.

6

M/s. Samsonite South Asia Pvt. Ltd. Vs Union of India & Ors. (Delhi High Court)) Dated 20.07.2020

The Court has allowed Samsonite to pay the principle profiteered amount if Rs 21.81 crore in six equated monthly installments the consumer welfare funds of Centre and states.

7

M/s Sapphire Foods India Private Limited, Gujarat HC

Gujarat High Court restrains NAA and DGAP from investigating products other than those complained. In the matter of Sapphire Foods India Private Limited, a franchise of Yum Brands, the HC granted ad-interim relief in the anti-profiteering proceedings. Taking cognizance of the petitioner’s submissions, the High Court directed the NAA and DGAP to limit the investigations only to the products for which profiteering was alleged.

8

M/s Jian International vs Commissioner of Delhi Goods & Service Tax (W.P. (C) 4205/2020, High court of Delhi

Dept. has no right to point out any deficiency in refund application after 15 days (after lapse of prescribed time limit)

Refund application dated 4-11-2019 was not processed till date. Neither acknowledgment nor deficiency memo has been issued within time line of 15 days. Hence, refund application would be presumed to be complete in all respects as per Rule 89 of CGST Rules. The dept. has lost the right to point out any deficiency in refund application and is directed by Delhi HC to pay refund amt. with interest to petitioner within 2 weeks.

9

Hero Motocorp Ltd. Vs Union of India, W.P. (C) No. 505/2020 (Delhi High Court)

Plea of promissory estoppel cannot be enforced against an act done in accordance with the statutory provisions of law - the petitioner does not have any vested right to be entitled to budgetary support.

Delhi HC held that Rationale of providing support to extent of Central Government’s share of the CGST/IGST is based on reasoning which cannot be questioned by petitioner. The plea of promissory estoppel cannot be enforced against an act done in accordance with the statutory provisions of law.

10

VKC Footsteps India Pvt. Ltd. vs. Union of India & 2 other(s)-R/SPECIAL Civil Application No. 2792 of 2019, High Court of Gujarat

Denial of refund on 'Input Services' under Inverted Duty Structure Scheme is ultravires to Section 54 (3). As per Section 54(3), registered person may claim refund of ‘any unutilised input tax’. Hence, by way of Rule 89(5) such claim of the refund cannot be restricted only to ‘input’ excluding the ‘input services’ from the purview of ‘Input tax credit’. On perusal of definitions under Section 2, it can be inferred that ‘input’ and ‘input service’ both are part of ‘input tax’ and ‘input tax credit’.

SI

Case

Brief Judgement

1

Vikram Traders Advance Ruling No. KAR ADRG 08/2020) (GST AAR Karnataka)

AAR liable for rejection as issue is pending before Hon’ble SC

2

Smt. Anju Parakh, [2020] 116 taxmann.com 157 (AAR - CHHATTISGARH)

GST applicability on Medical Services with regard to providing vaccination from clinic

3

Fom Aluminium Machines Pvt. Ltd. (Advance Ruling No. KAR ADRG 09/2020)) (GST AAR Karnataka)

No RCM on Export of service and The IGST paid on clearance of imported goods by the applicant is available for ITC to the applicant.

4

Andhra Pradesh State Road Transport Corporation (Andra Pradesh AAR), AAR No. 09/AP/GST/2020)

Renting the Non-Air conditioned buses under the name & style M/s Andhra Pradesh State Road Transport Services for the occasions of marriages, functions etc. is rental services and chargeable to GST @ 18%

5

Springfields (India) Distilleries) AAR –GOA (GOA/GAAR/1 of 2020-21/531)

Hand Sanitizers manufactured by the applicant are of the category of Alcohal based hand sanitizers and are classifiable under heading 3808 of HSN to which rate of GST applicable is 18%.

Note: Press Release issued on 15.07.2020 also clarify sanitizers in the category of disinfectants like soaps, anti-bacterial liquids, etc. and therefore holds that it shall attract the rate of 18%.

6

High Tech Refrigeration & Air conditioning Industries (GOA/GAAR/5 of 2019-20/530) (GST AAR Goa)

POS in 'Bill to Ship to' cases shall be the location of person giving direction for shipment.

GST : Supply of goods made by applicant from Goa on behalf of a third party registered outside Goa to a place in Goa, has to be taxed as inter-State supply of goods under section 10(1)(b)

7

Ushabala Chits (P.) Ltd., In re - [2020] 117 taxmann.com 827, (GST AAR - ANDHRA PRADESH)

Interest / penalty charged by a Chit Company from its member for delay in payment of Chit amount taxable at 12%

8

Leprosy Mission Trust India, Order No. 01/WBAAR/2020-21 (GST AAR West Bengal)

No GST on imparting education via Govt approved vocational courses.

The applicant's services to the students, faculty and staff with respect to the skill development courses for diesel mechanic, welder and sewing technology are exempt under Entry 66 (a) of Notification 1212017 - Central Tax (Rate) dated 28.06.2017 as amended time to time. Exemptions under entry 64 or 71 of the above notification are not applicable.

This Ruling is valid subject declared void under Section to the provisions under Section 103 until and unless declared void under Section 104(1) of the GST Act.

9

IZ-Kartex named after P G Korobkov Ltd, Advance Rulings No. 04/WBAAR/2020-21 (GST AAR West Bengal)

Presence of staff and supplies at the site over a prolonged period indicates sufficient degree of permanence to constitute as fixed establishment. (Site where employees are deputed for machine maintenance qualifies as fixed establishment)

The Authority held that presence of the employees, their spares and consumable at the sites during the period of contract to ensure supervision and maintenance/repairs indicates sufficient degree of permanence of the human and technical resources at the sites. Such location shall be deemed to be a fixed establishment and thereby the location of the supplier of services.

10

Pulluri Mining & Logistics (P.) Ltd., In re - [2020] 117 taxmann.com 917 (AAR - ANDHRA PRADESH)

Cost of HSD Oil issued free of cost by service recipient includible in supply value.

HSD Oil issued free of cost by the service recipient to the applicant would form part of value of supply of service by the applicant as per Section 15(2) (b) of the CGST Act, 2017.

In the given case, the contractual liability to provide HSD oil rests upon the recipient. As the supplier is not liable to incur this expenditure therefore addition u/s 15(2) (b) would not be required.

The CBIC vide Circular No.47 dated 8-6-2018 clarified that the value of moulds and dies provided by OEM to component manufacturer on FOC basis shall not be required to be added in the value of manufactured components as manufacturer was not liable to incur the cost of moulds / dies.

SI

Case

Brief Judgement

1

Deputy Conservator of Forests, Advance Rulings No. AR/AAAR/Appeal-15/2019-20 (GST AAAR Karnataka)) dated 03.03.2020

AAAR Is Not Empowered To Allow The Appeal After 60 Days From Original Order Date. Applicant filed an appeal with a delay of one day after expiry of grace period of 30 days against ruling of AAR.

2

Safset Agencies Pvt Ltd., Advance Ruling Order No. MAH/AAAR/SS-RJ/08/2019-20 (GST AAAR Maharashtra

Margin scheme under Rule 32(5) is applicable to antiques and paintings brought from art collectors: Maharashtra AAAR

Further, the goods option cannot be denied because of the increase in value of second-hand goods with passage of time. Appellate Authority observed that the classification of goods cannot affect the applicability of Rule 32(5) of the CGST Rules, 2017.

When the words of a statute are unambiguous and only one reasonable meaning can be given to it, then, the Courts are bound to give that meaning. Since all the conditions of Rule 32(5) of CGST Rules, 2017 are fulfilled, the rule can be applied to paintings, antique jewelleries.

3

Assistant Commissioner of State Tax Vs N. Rai Delights LLP (NAA) (Case No. 19/2020)

NAA found ‘Subway Franchisee’ guilty of Profiteering. NAA confirms profiteering against Restaurant provider (a franchisee of Subway Systems India Pvt Ltd) to the tune of Rs. 7.53 Lakh.

NAA rejected the contention of respondent that his costs had increased on the intervening night of 15.11.2017 when the rate reduction had happened which had forced him to increase his prices exactly equal or more then the reduction in the rate of tax. Such an uncanny coincidence is unheard off.