January 2023

Service Tax

Puloma Dalal | Jayesh Gogri | Mandar Telang
Chartered Accountants

I.     HIGH COURT

23. Abi Egg Traders vs. Assistant Commissioner
[2022] 145 taxmann.com 264 (Madras)
Date of order: 3rd November, 2022

The Hon. Court sets aside the order rejecting the refund on the hyper technical ground that the applicant has filed the same under the wrong category on account of an inadvertent error in the GST return of selecting the “exports without payment of tax” as the “exports with payment of tax”.
   
FACTS

The  petitioner is in the business of export of eggs. There is no liability on the export of eggs since the commodity is nil-rated. The petitioner filed a refund claim of ITC for 2017-18 in respect of which the return in Form GSTR-3B was filed in May 2018. While filing the GST returns, the petitioner instead of opting for exports “without payment of tax”, opted for the column “with payment of tax”. Hence, while filing the refund application, the petitioner, instead of selecting the ground for refund application as “export of goods/services without payment of tax (accumulated ITC)” submitted refund under “any other category”, as the refund application when correlated with the GSTR-3B did not permit the petitioner to take a stand contrary to the return. This wrong classification was cited as a reason for the rejection of the refund application.

HELD

The Court observed that the ld. counsel for the Department did not dispute the entitlement of the petitioner to the refund and fairly acceded to the position that the error is bonafide and reiterated that the petitioner is entitled to the refund of ITC, as the export was not liable to tax. The Court also noted that the same officer in one other matter in similar circumstances had granted the refund taking a lenient view. In these circumstances, the Court held that rejecting the refund solely on the inadvertent error that had transpired would be hypothetical and set aside the order.


24. Ekta Supreme Corporation vs. Commissioner of State Tax
[2022] 145 taxmann.com 266 (Bom.)
Date of order: 1st February, 2022

FACTS

The High Court set aside the Summary Orders against the petitioner on the grounds  that there are no other orders passed by the Department, other than Summary of Orders. The Department was permitted to issue a show cause notice u/s 73 to the petitioner and pass the orders accordingly after giving the assessee an opportunity of being heard.  


25. Manappuram Finance Ltd vs. Assistant Commissioner of Central Tax and Excise
[2022] 145 taxmann.com 422 (Kerala)
Date of order: 7th December, 2022

The High Court held that given the Circular No.178/10/2022-GST dated 3rd August, 2022 clarifying th

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