We are sharing Blogs written by us in last week on various issues of GST law as given below. These can also be referred from our LinkedIn page at  LinkedIn .

Blog No.11:- 𝐆𝐫𝐨𝐮𝐧𝐝𝐬 𝐟𝐨𝐫 𝐞𝐧𝐥𝐚𝐫𝐠𝐢𝐧𝐠 𝐨𝐧 𝐀𝐧𝐭𝐢𝐜𝐢𝐩𝐚𝐭𝐨𝐫𝐲 𝐁𝐚𝐢𝐥

In Blog No. 1 & 2, we discussed about types of Bail and grounds to release a person on Regular Bail. In this Blog, we are discussing about Grounds to release a person on Anticipatory Bail.

Hon’ble Supreme Court in 𝙎𝙞𝙙𝙙𝙝𝙖𝙧𝙖𝙢 𝙎𝙖𝙩𝙩𝙡𝙞𝙣𝙜𝙖𝙥𝙥𝙖 𝙈𝙝𝙚𝙩𝙧𝙚 𝙫. 𝙎𝙩𝙖𝙩𝙚 𝙤𝙛 𝙈𝙖𝙝𝙖𝙧𝙖𝙨𝙝𝙩𝙧𝙖 reported as (2011) 1 SCC 694 held that in a case where the Court is of a considered view that the 𝙖𝙘𝙘𝙪𝙨𝙚𝙙 𝙝𝙖𝙨 𝙟𝙤𝙞𝙣𝙚𝙙 𝙩𝙝𝙚 𝙞𝙣𝙫𝙚𝙨𝙩𝙞𝙜𝙖𝙩𝙞𝙤𝙣 and he is 𝙛𝙪𝙡𝙡𝙮 𝙘𝙤𝙤𝙥𝙚𝙧𝙖𝙩𝙞𝙣𝙜 𝙬𝙞𝙩𝙝 𝙩𝙝𝙚 𝙞𝙣𝙫𝙚𝙨𝙩𝙞𝙜𝙖𝙩𝙞𝙣𝙜 𝙖𝙜𝙚𝙣𝙘𝙮 and is 𝙣𝙤𝙩 𝙡𝙞𝙠𝙚𝙡𝙮 𝙩𝙤 𝙖𝙗𝙨𝙘𝙤𝙣𝙙, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted. Following factors and parameters are to be taken into consideration while dealing with the anticipatory bail:

1. The 𝙣𝙖𝙩𝙪𝙧𝙚 𝙖𝙣𝙙 𝙜𝙧𝙖𝙫𝙞𝙩𝙮 𝙤𝙛 𝙩𝙝𝙚 𝙖𝙘𝙘𝙪𝙨𝙖𝙩𝙞𝙤𝙣 and the exact role of the accused:
2. The 𝙖𝙣𝙩𝙚𝙘𝙚𝙙𝙚𝙣𝙩𝙨 𝙤𝙛 𝙩𝙝𝙚 𝙖𝙥𝙥𝙡𝙞𝙘𝙖𝙣𝙩 including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
3. The possibility of the applicant to flee from justice;
4. The possibility of the accused’s 𝙡𝙞𝙠𝙚𝙡𝙞𝙝𝙤𝙤𝙙 𝙩𝙤 𝙧𝙚𝙥𝙚𝙖𝙩 similar or the other offences.
5. Where the accusations have been made only with the 𝙤𝙗𝙟𝙚𝙘𝙩 𝙤𝙛 𝙞𝙣𝙟𝙪𝙧𝙞𝙣𝙜 𝙤𝙧 𝙝𝙪𝙢𝙞𝙡𝙞𝙖𝙩𝙞𝙣𝙜 the applicant by arresting him or her.
6. 𝙞𝙢𝙥𝙖𝙘𝙩 of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
7. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 149 of the Penal Code, 1860, the court should consider with even greater care & caution because over implication in the cases is a matter of common knowledge and concern.
8. While considering the prayer for grant of anticipatory bail , a 𝙗𝙖𝙡𝙖𝙣𝙘𝙚 𝙝𝙖𝙨 𝙩𝙤 𝙗𝙚 𝙨𝙩𝙧𝙪𝙘𝙠 𝙗𝙚𝙩𝙬𝙚𝙚𝙣 𝙩𝙬𝙤 𝙛𝙖𝙘𝙩𝙤𝙧𝙨 namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation & unjustified detention of the accused;
9. The court to consider reasonable apprehension of 𝙩𝙖𝙢𝙥𝙚𝙧𝙞𝙣𝙜 𝙤𝙛 𝙩𝙝𝙚 𝙬𝙞𝙩𝙣𝙚𝙨𝙨…..;
10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some 𝙙𝙤𝙪𝙗𝙩 𝙖𝙨 𝙩𝙤 𝙩𝙝𝙚 𝙜𝙚𝙣𝙪𝙞𝙣𝙚𝙣𝙚𝙨𝙨 𝙤𝙛 𝙩𝙝𝙚 𝙥𝙧𝙤𝙨𝙚𝙘𝙪𝙩𝙞𝙤𝙣, in the normal course of events, the accused is entitled to an order of bail.”

Blog No.12 :- 𝐑𝐞𝐟𝐮𝐧𝐝 𝐨𝐟 𝐚𝐜𝐜𝐮𝐦𝐮𝐥𝐚𝐭𝐞𝐝 𝐈𝐓𝐂 𝐝𝐮𝐞 𝐭𝐨 𝐈𝐆𝐒𝐓 𝐩𝐚𝐢𝐝 𝐨𝐧 𝐢𝐦𝐩𝐨𝐫𝐭𝐬 𝐮𝐧𝐝𝐞𝐫 𝐄𝐏𝐂𝐆 𝐋𝐢𝐜𝐞𝐧𝐬𝐞 𝐟𝐫𝐨𝐦 𝟎𝟏.𝟎𝟕.𝟐𝟎𝟏𝟕 𝐭𝐨 𝟏𝟑.𝟏𝟎.𝟐𝟎𝟏𝟕

Onset of GST was propagated with the philosophy of “NO TAX EXEMPTIONS” and thereby leading to non-amendment of Customs Notification exempting GST levies for import of Capital Goods made under EPCG Licence. However, the same was later amended on 13.10.2017 leaving the position of exemption on imports made during 01.07.2017 to 13.10.2017 disputed. It was being perceived that an exemption can never be retrospective and therefore, the importer was liable to pay IGST on imports.

On a challenge being made, Hon’ble Gujarat HC in the case of 𝐌/𝐬 𝐏𝐫𝐢𝐧𝐜𝐞 𝐒𝐩𝐢𝐧𝐭𝐞𝐱 𝐏𝐯𝐭 𝐋𝐭𝐝 𝐕𝐞𝐫𝐬𝐮𝐬 𝐔𝐧𝐢𝐨𝐧 𝐨𝐟 𝐈𝐧𝐝𝐢𝐚 in R/SCA No. 20756 of 2018 held that imports are exempt even during the period 01.07.2017 to 13.10.2017. Hon’ble Court held that “𝐄𝐱𝐞𝐦𝐩𝐭𝐢𝐨𝐧 𝐍𝐨𝐭𝐢𝐟𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐢𝐬 𝐭𝐨 𝐛𝐞 𝐫𝐞𝐚𝐝 𝐢𝐧 𝐭𝐡𝐞 𝐜𝐨𝐧𝐭𝐞𝐱𝐭 𝐨𝐟 𝐭𝐡𝐞 𝐄𝐏𝐂𝐆 𝐩𝐨𝐥𝐢𝐜𝐲 𝐤𝐞𝐞𝐩𝐢𝐧𝐠 𝐢𝐧 𝐦𝐢𝐧𝐝 𝐭𝐡𝐞 𝐨𝐛𝐣𝐞𝐜𝐭 𝐞𝐧𝐯𝐢𝐬𝐚𝐠𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐲 𝐚𝐧𝐝 𝐧𝐨𝐭 𝐢𝐧 𝐭𝐡𝐞 𝐬𝐭𝐫𝐢𝐜𝐭 𝐬𝐞𝐧𝐬𝐞 𝐚𝐬 𝐢𝐧 𝐭𝐡𝐞 𝐜𝐚𝐬𝐞 𝐨𝐟 𝐚 𝐠𝐞𝐧𝐞𝐫𝐚𝐥 𝐞𝐱𝐞𝐦𝐩𝐭𝐢𝐨𝐧 𝐮𝐧𝐝𝐞𝐫 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟓 𝐨𝐟 𝐭𝐡𝐞 𝐂𝐮𝐬𝐭𝐨𝐦𝐬 𝐀𝐜𝐭.” Meaning thereby, these are not pure exemption notifications rather merely a mechanism envisaged to give effect to the provision of FTP.

Recently, the same Court in the matter of 𝐌/𝐬 𝐑𝐚𝐝𝐡𝐞𝐬𝐡𝐲𝐚𝐦 𝐒𝐩𝐧𝐧𝐢𝐧𝐠 𝐏𝐯𝐭 𝐋𝐭𝐝 𝐕𝐬 𝐔𝐎𝐈 in R/SCA No. 20759 of 2018 allowed refund of accumulated ITC taking a note of the amendments made in the order and manner of utilisation of ITC [Sec 49B as well as Rule 88A] w.e.f. 01.02.2019 which resulted in accumulation of credit under the head CGST and SGST. The court also observed that the said order became operational on common portal w.e.f. 01.06.2019.

Watch crisp discussion by our Managing Partner at https://lnkd.in/dhGP6mMv

Blog No. 13 :- 𝐀𝐭𝐭𝐚𝐜𝐡𝐦𝐞𝐧𝐭 𝐨𝐟 𝐢𝐦𝐦𝐨𝐯𝐚𝐛𝐥𝐞 𝐩𝐫𝐨𝐩𝐞𝐫𝐭𝐲 𝐟𝐨𝐫 𝐦𝐢𝐧𝐮𝐬𝐜𝐮𝐥𝐞 𝐚𝐦𝐨𝐮𝐧𝐭 𝐨𝐟 𝐝𝐞𝐦𝐚𝐧𝐝

𝐃𝐞𝐜𝐢𝐬𝐢𝐨𝐧
The provisional attachment provided in section 83 of the GST Act has always been a subject matter of improper exercise of jurisdiction. In one of the cases, the immovable property worth more than Rs. 10 crores was provisionally attached for an amount of Rs. 3.50 lacs (inclusive of interest and penalty). On a writ being filed, the Hon’ble court did not appreciate the substance of the matter in a way it was supposed to be. [Refer 𝐅𝐨𝐫𝐦𝐚𝐭𝐢𝐯𝐞 𝐅𝐚𝐬𝐡𝐢𝐨𝐧𝐬 𝐏𝐯𝐭. 𝐋𝐭𝐝. 𝐕𝐞𝐫𝐬𝐮𝐬 𝐒𝐭𝐚𝐭𝐞 𝐨𝐟 𝐆𝐮𝐣𝐚𝐫𝐚𝐭 – 𝐑/𝐒𝐂𝐀 𝐍𝐨. 𝟏𝟑𝟖𝟕𝟖 𝐨𝐟 𝟐𝟎𝟐𝟎].

𝐖𝐡𝐚𝐭 𝐜𝐨𝐮𝐥𝐝 𝐡𝐚𝐯𝐞 𝐛𝐞𝐞𝐧 𝐝𝐨𝐧𝐞?
In our view, the court should have perused the facts on pedestal of:

𝐀. 𝐑𝐞𝐚𝐬𝐨𝐧𝐬 𝐭𝐨 𝐛𝐞𝐥𝐢𝐞𝐯𝐞 which encompass within it following essential ingredients:

1. The use of the word “𝐦𝐚𝐲” 𝐢𝐧𝐝𝐢𝐜𝐚𝐭𝐞𝐬 𝐧𝐨𝐭 𝐨𝐧𝐥𝐲 𝐭𝐡𝐞 𝐝𝐢𝐬𝐜𝐫𝐞𝐭𝐢𝐨𝐧, 𝐛𝐮𝐭 𝐚𝐧 𝐨𝐛𝐥𝐢𝐠𝐚𝐭𝐢𝐨𝐧 to consider that a necessity has arisen to pass an order of provisional attachment with a view to protect the interest of the government revenue.
2.  It is equally true that it is not necessary for the authority under the Act to state reasons for its belief. But 𝐢𝐟 𝐢𝐭 𝐢𝐬 𝐜𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞𝐝 that he had no reasons to believe, in that case, 𝐡𝐞 𝐦𝐮𝐬𝐭 𝐝𝐢𝐬𝐜𝐥𝐨𝐬𝐞 𝐭𝐡𝐞 𝐦𝐚𝐭𝐞𝐫𝐢𝐚𝐥𝐬 𝐮𝐩𝐨𝐧 𝐰𝐡𝐢𝐜𝐡 𝐡𝐢𝐬 𝐛𝐞𝐥𝐢𝐞𝐟 𝐰𝐚𝐬 𝐟𝐨𝐫𝐦𝐞𝐝, as it has been held by the Supreme Court in Sheonath Singh’s case [AIR 1971 SC 2451].

𝐁. 𝐁𝐚𝐥𝐚𝐧𝐜𝐞 𝐭𝐡𝐞 𝐢𝐧𝐭𝐞𝐫𝐞𝐬𝐭 𝐨𝐟 𝐭𝐡𝐞 𝐠𝐨𝐯𝐞𝐫𝐧𝐦𝐞𝐧𝐭 𝐫𝐞𝐯𝐞𝐧𝐮𝐞 𝐨𝐧 𝐭𝐡𝐞 𝐨𝐧𝐞 𝐡𝐚𝐧𝐝 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐢𝐧𝐭𝐞𝐫𝐞𝐬𝐭 𝐨𝐟 𝐭𝐡𝐞 𝐝𝐞𝐚𝐥𝐞𝐫 𝐨𝐧 𝐭𝐡𝐞 𝐨𝐭𝐡𝐞𝐫 𝐡𝐚𝐧𝐝 as clarified in the case of Patran steel Rolling   Mill Vs. Assistant Commissioner of State Tax, 2019 (20) GSTL 732.

𝐂𝐨𝐧𝐜𝐥𝐮𝐬𝐢𝐨𝐧
Mystifying to all those seeking plausible answers to the imborglio of provisional attachment, we also fail to understand what could have been the reasons to form such an opinion. Hope, Hon’ble Commissioner will drop this order while doing periodic review. Seeking a solution to executive indulging in such needless exercise of jurisdiction, the government come out with an instruction dated 23.02.2021 providing for guidelines of provisional attachment. Let’s see how far these instructions are followed to achieve the balance of interest.

𝐁𝐥𝐨𝐠 𝐍𝐨. 𝟏𝟒:- 𝐃𝐞𝐭𝐞𝐧𝐭𝐢𝐨𝐧 𝐢𝐧 𝐜𝐚𝐬𝐞 𝐨𝐟 𝐄𝐱𝐩𝐢𝐫𝐲 𝐨𝐟 𝐄–𝐖𝐚𝐲 𝐁𝐢𝐥𝐥

NE EQUIPMENT SOLUTIONS PVT. LTD. VERSUS THE STATE OF TRIPURA AND OTHERS, Tripura HC WP(C) No. 577 of 2021(8)

In the said judgement, it is held by Hon’ble Tripura High Court that if the E-way bill has expired, detention of the vehicle should not be done based on following:
1.      When the validity of E-way Bill has expired on account of 𝐮𝐧𝐟𝐨𝐫𝐞𝐬𝐞𝐞𝐧 𝐚𝐧𝐝 𝐮𝐧𝐞𝐱𝐩𝐞𝐜𝐭𝐞𝐝 𝐝𝐞𝐥𝐚𝐲;
2.      When the 𝐟𝐚𝐮𝐥𝐭 𝐢𝐬 𝐭𝐞𝐜𝐡𝐧𝐢𝐜𝐚𝐥in nature;
3.      When there is no deliberate tax evasion and only few technical or minor defects are there which manifest 𝐧𝐨 𝐢𝐧𝐭𝐞𝐧𝐭𝐢𝐨𝐧 𝐭𝐨 𝐞𝐯𝐚𝐝𝐞 𝐭𝐚𝐱;
4.      When the 𝐭𝐚𝐱 𝐡𝐚𝐬 𝐛𝐞𝐞𝐧 𝐟𝐮𝐥𝐥𝐲 𝐝𝐢𝐬𝐜𝐡𝐚𝐫𝐠𝐞𝐝 on the goods which are transported

𝐁𝐥𝐨𝐠 𝐍𝐨. 𝟏𝟓:- 𝐅𝐢𝐥𝐢𝐧𝐠 𝐨𝐟 𝐚𝐩𝐩𝐞𝐚𝐥 𝐚𝐠𝐚𝐢𝐧𝐬𝐭 𝐅𝐨𝐫𝐦 𝐆𝐒𝐓 𝐀𝐒𝐌𝐓𝟏𝟑 𝐨𝐫 𝐆𝐒𝐓 𝐃𝐑𝐂–𝟎𝟕?

Hash Constructions Versus Deputy Commissioner, SGST, Kerala HC WP(C).No.671 OF 2021(H)

𝐅𝐚𝐜𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐂𝐚𝐬𝐞
1. The petitioner did not file returns for the period April 2018 to May 2019.
2. Orders is Form GST ASMT 13 were passed on 15.05.2019, under section 62.
3. Orders in Form GST DRC-07 dated 22.10.2019, 27.11.2019 and 30.11.2019 came to be issued.
4. Petitioner preferred statutory appeal under section 107 of the GST Act on 10.03.2020.

𝐃𝐞𝐜𝐢𝐬𝐢𝐨𝐧

1. The appeal as it stands is an appeal challenging the assessment made by the Assessing Officer to the best of his judgment as per the provisions of Section 62 of the GST Act.
2. That assessment order is not deemed to have been withdrawn due to non-filing of valid return within 30 days of service of the assessment order under Section 62 of    the Act.
3. As such, it cannot be said that the appeals filed by the petitioner were in fact the appeals challenging the demand notice in FORM GST DRC-07.
4. 𝐄𝐯𝐞𝐧 𝐝𝐮𝐫𝐢𝐧𝐠 𝐩𝐞𝐧𝐝𝐞𝐧𝐜𝐲 𝐨𝐟 𝐭𝐡𝐢𝐬 𝐚𝐩𝐩𝐞𝐚𝐥𝐬, 𝐧𝐨 𝐚𝐦𝐞𝐧𝐝𝐦𝐞𝐧𝐭 𝐚𝐩𝐩𝐥𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐰𝐚𝐬 𝐦𝐨𝐯𝐞𝐝 𝐭𝐨 𝐝𝐞𝐥𝐞𝐭𝐞 𝐭𝐡𝐞 𝐜𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞 𝐬𝐨 𝐟𝐚𝐫 𝐚𝐬 𝐭𝐡𝐞 𝐀𝐬𝐬𝐞𝐬𝐬𝐦𝐞𝐧𝐭 𝐨𝐫𝐝𝐞𝐫 𝐢𝐧 𝐅𝐎𝐑𝐌 𝐆𝐒𝐓 𝐀𝐒𝐌𝐓–𝟏𝟑 𝐢𝐬 𝐜𝐨𝐧𝐜𝐞𝐫𝐧𝐞𝐝 𝐨𝐫 𝐭𝐨 𝐢𝐧𝐜𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐭𝐡𝐞 𝐜𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞 𝐭𝐨 𝐭𝐡𝐞 𝐨𝐫𝐝𝐞𝐫𝐬 𝐢𝐧 𝐅𝐎𝐑𝐌 𝐆𝐒𝐓 𝐃𝐑𝐂–𝟎𝟕.

𝐖𝐡𝐚𝐭 𝐜𝐨𝐮𝐥𝐝 𝐡𝐚𝐯𝐞 𝐛𝐞𝐞𝐧 𝐚𝐫𝐠𝐮𝐞𝐝?
The attention of the court must have been drawn to the decision of Hon’ble Gujarat High Court in the case of 𝐆𝐮𝐣𝐚𝐫𝐚𝐭 𝐒𝐭𝐚𝐭𝐞 𝐏𝐞𝐭𝐫𝐨𝐧𝐞𝐭 𝐋𝐢𝐦𝐢𝐭𝐞𝐝 𝐕𝐞𝐫𝐬𝐮𝐬 𝐔𝐨𝐈 reported as 𝟐𝟎𝟐𝟎 (𝟗) 𝐓𝐌𝐈 𝟒𝟐𝟕 wherein it was held that time period to file appeal starts from the date of electronic service of Form GST DRC-07 because said service enables electronic filing of appeal.

𝐂𝐨𝐧𝐜𝐥𝐮𝐬𝐢𝐨𝐧
Unlike other provisions of law, where the appeal cannot be filed unless summary of the order in Form GST DRC-07 is issued electronically and the demand is added in the electronic liability register, Hon’ble court in this case has considered it as a notice of recovery [Probably reliance placed on Rule 142(6)]. However, they appear to have allowed the appeal provided an application for amendment to the challenge had been filed by the petitioner. Therefore, despite referring the order of Hon’ble Gujarat HC, it is advisable to give a reference to Form GST DRC-07 in Form GST APL-01 to survive the limitation period. 𝐍𝐞𝐯𝐞𝐫𝐭𝐡𝐞𝐥𝐞𝐬𝐬, 𝐰𝐞 𝐚𝐫𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐯𝐢𝐞𝐰 𝐭𝐡𝐚𝐭 𝐭𝐡𝐞 𝐬𝐞𝐫𝐯𝐢𝐜𝐞 𝐨𝐟 𝐨𝐫𝐝𝐞𝐫 𝐢𝐬 𝐜𝐨𝐦𝐩𝐥𝐞𝐭𝐞 𝐨𝐧 𝐞𝐥𝐞𝐜𝐭𝐫𝐨𝐧𝐢𝐜 𝐬𝐞𝐫𝐯𝐢𝐜𝐞 𝐨𝐟 𝐅𝐨𝐫𝐦 𝐆𝐒𝐓 𝐃𝐑𝐂–𝟎𝟕 unless Commissioner allow manual filing of appeal by way of issuing notification.

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