This roundup contains rulings on Claim of refund on service tax, Shareholders of Tamilnad Mercantile Bank, WHO's suspension of Covaxin procurement, RTI on pay scales, gross pay, PF deduction and TDS, Improper waste management, Noise Pollution, Classification of agricultural hand operated drum, Myntra vouchers, Kingfisher Radler, Classification of Bus Air conditioning system ,Negligence committed by doctors, What constitutes government authority, Unfair trade practice, Arbitrary deduction of earnest money and on Rejection of Resolution Plan.
Customs Excise and Service Tax Appellate Tribunal (CESTAT)
Whether refund can be claimed on the service tax deposited on ‘construction' of individual/ independent ‘residential' houses? CESTAT answers
The coram of Dilip Gupta (President) and Subba Rao (Technical Member) allowed an appeal holding that appellant is entitled to claim refund of the service tax deposited by the appellant on construction of individual/independent residential houses. The appeal was filed assailing the order by the Commissioner (Appeals) where he had upheld the order of adjudicating authority rejecting the refund claim of Rs. 21,33,490/-.
[Quality Builders & Contractor v. Commr. of CG&ST]
Armed Forces Tribunal, Lucknow Bench
Whether dismissal order served without show cause notice justified when there's suspicion of involvement in espionage & anti-national activities? Armed Forces Tribunal decides
The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) upheld the antedated dismissal of the applicant which was served without any show cause notice on the ground of his involvement in espionage and anti-national activities.
[Arjun Singh v. Union of India]
Securities Appellate Tribunal, Mumbai
Shareholders of Tamilnad Mercantile Bank restrained by SEBI to participate in IPO; SAT quashes appeals as the aggrieved parties were not part of Offer for Sale
While quashing the appeal preferred by the appellants against the order dated 12-05-2022 passed by the Securities and Exchange Board of India (“SEBI”), the coram of Tarun Agarwala, J. (Presiding Officer), M.T. Joshi, J. (Judicial Member), Meera Swarup (Technical Member) held that the appellants not being an “aggrieved person” as they were not part of the Offer for Sale (‘OFS') and therefore, cannot file appeals questioning the legality and veracity of SEBI's order granting exemption to the Tamilnad Mercantile Bank Limited (‘Bank') under Regulation 300 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018 (‘ICDR Regulations').
[Robert & Ardis James Company Ltd. v. SEBI, 2022 SCC OnLine SAT 210]
Central Information Commission
RTI on WHO's suspension of Covaxin procurement| ‘CPIO's reply incorrect, vague and mindlessly prepared'; CIC issues show cause notice
In a complaint for an action against the Central Public Information Officer (CPIO) for willfully misleading and furnishing false information to the appellant, the Information Commissioner Heeralal Samariya, observed that the initial reply provided by the CPIO was incorrect, vague and mindlessly prepared and directed him to send his written submissions to justify as to why action should not be initiated against him under Section 20 of the Right to Information Act, 2005 (RTI) for the gross violation of its provisions.
[Saurav Das v. PIO, 2022 SCC OnLine CIC 402]
RTI on pay scales, gross pay, PF deduction and TDS| Unhappy with CPIO's response, Central Information Commission allows inspection of records
In a second appeal filed under Section 19 of the Right to Information Act, 2005 on the ground of unsatisfactory reply furnished by the Central Public Information Officer (CPIO), the Information Commissioner Amita Pandove, has directed the CPIO and Assistant Director (E-Governance cell), to provide an opportunity to the appellant to inspect the relevant records as the information provided to the appellant was erroneous, and also, reprimanded the public authority for providing such mindless and incongruous replies.
[Akshay Kumar Shakya v. CPIO, 2022 SCC OnLine CIC 396]
National Green Tribunal, New Delhi (NGT)
NGT directs Maharashtra Government to pay compensation of ₹12,000 crore due to improper waste management
The coram of Adarsh Kumar Goel J (Chairperson), Sudhir Agarwal (Judicial Member), JJ. and Prof. A. Senthil Vel (Expert Member) took up the issue of monitoring of solid waste management as per orders of the Supreme Court in Almitra H. Patel v. Union of India, 2014 SCC OnLine SC 1844, order dated 02.09.2014 as well as liquid waste management in Paryavaran Suraksha v. Union of India, (2017) 5 SCC 326 and awarded compensation of Rs. 12000 crore under S. 15 of National Green Tribunal Act, 2010 to remedy the continuing damage to the environment.
[Compliance of Municipal Solid Waste Management Rules, 2016 & Other Environmental Issues, In re, 2020 SCC OnLine NGT 590]
National Green Tribunal | Noise Pollution — violation of right to peaceful, comfortable and pollution-free life guaranteed by Article 21
Passing a revolutionary direction to the State for controlling Noise Pollution, a bench comprising of Sheo Kumar Singh (Judicial Member), J. and Dr. Arun Kumar Verma (Expert Member) come down heavily on the State government on their insouciant and careless feet dragging over controlling noise pollution from vehicular horns and modified exhausts in the State and directed the State to compulsorily abide and implement the existing legislative framework on the subject matter.
[Consumer Unity & Trust Society, Jaipur v. State of Rajasthan]
Appellate Authority for Advance Ruling
Gujarat Appellate Authority for Advance Ruling upheld the decision of AAR; classified agricultural hand operated drum under HSN 8436, liable to GST at 12% rate
In an appeal for determining the Harmonised System of Nomenclature code (HSN) and applicable tax on the appellant's product, the two-member bench of Milind Torawane and Vivek Ranjan upheld the decision of the Gujarat Authority for Advance Ruling that the appellant's product is classified at HSN 8436 tariff item and liable to GST at 12% rate, and observed that as the appellant's product is in its use, as well as its function is described under the said HSN Code, thus it is covered within the description provided under the said code.
[Adarsh Plant Protect Ltd., In re, 2020 SCC OnLine Guj AAR-GST 2]
Authority of Advanced Ruling
Authority of Advanced Ruling | Myntra ineligible to avail input tax credit on vouchers and subscription packages procured from third party
In an application filed to sought advance ruling on the question that, whether the applicant would be eligible to avail the input tax credit, in terms of Section 16 of the Central Goods and Services (‘CGST') Act , 2017, on vouchers and subscription packages procured by the applicant from third party vendors, the two-member bench of M.P. Ravi Prasad and T. Kiran Reddy has ruled that the applicant is not eligible to avail the input tax credit, as it is not available in terms of Section 17(5)(h) of the CGST Act, 2017
[Myntra Designs Pvt. Ltd., In re]
Whether non-alcoholic malt drink “Kingfisher Radler” covered as ‘carbonated beverages of fruit drink or with fruit juice'; Karnataka Authority of Advanced Ruling answers
In an application filed to sought advance ruling on the question that, whether the non-alcoholic malt drink “Kingfisher Radler” is covered as ‘carbonated beverages of fruit drink or with fruit juice' under Entry 12-B of Central tax rate notification no.1/2017, the two-member bench of M.P. Ravi Prasad and T. Kiran Reddy has ruled that ‘Kingfisher Radler' merit classification as carbonated beverages of fruit drink.
[United Breweries Ltd., In re, 2018 SCC OnLine Kar AAR-GST 6]
Authority for Advance Ruling| GST applicable on Bus Air conditioning system, comprising rooftop unit, compressor and installation kit
In an application filed to sought advance ruling regarding the classification of the applicant's product, the two-member bench of M.P Ravi Prasad and T. Kiran Reddy has ruled that the bus air-conditioning system inclusive of rooftop unit, compressor and installation kit for one consolidated price to a single customer merits classification under heading 84152010; and when sold to single customer for a single fitting at customer end, but price negotiated and agreed separately for each unit then under heading 84152010; and when rooftop unit, compressor and installation kit sold individually or in combination then under heading 8415.90.00
[Eberspaecher Suetrak Bus Climate Control System India Pvt. Ltd., In re]
What constitutes a ‘government authority' or ‘government entity'; Karnataka Authority of Advanced Ruling answers
The two-member bench of M.P Ravi Prasad and T. Kiran Reddy has ruled that works contract services executed to Public Works Department, for construction of Airport Terminal Building and for development of Greenfield airport is liable to tax at 9 percent GST. Further, the works contract services executed to Karnataka State Police Housing and Infrastructure Corporation Ltd. for construction of High Security prison; Kudala Sangama Development Board (KSDB) for construction of Basava International Center and Museum; Karnataka Residential Educational Institutions Society (KREIS) for Constructions of Residential School Complex are all liable to 9 percent tax.
[KMV Projects Ltd., In re, 2022 SCC OnLine Kar AAR-GST 16]
National Consumer Disputes Resolution Commission (NCDRC)
NCDRC | In a tripartite contract between the seller, service provider and consumer, the seller and service provider are liable for any defect, deficiency and unfair trade practice on any product sold by them
While deciding upon the instant complaint concerning alleged unfair trade practice followed by Flipkart of tampering with a product's MRP, the Bench of Mamidi Christopher (President), S. Sandhya Rani and K. Venkateshwarlu (Members) observed that there is tripartite contract between the seller, service provider (herein ‘Flipkart') and the consumer. The seller and service provider are liable for any defect, deficiency of service and unfair trade practice on the services provided or good/product sold by them. It was held that Flipkart had tampered with the original MRP of the product (herein ‘oil sachet') and charged an amount more than the MRP from the consumer, thereby illegally extorting the consumer and causing economic loss and mental agony. Flipkart's conduct thereby falls within the ambit of deficiency in service and unfair trade practice.
[Shaik Umar Farooq v. Flipkart Internet (P) Ltd., 2022 SCC OnLine NCDRC 519]
“Hospitals are vicariously liable for the acts of negligence committed by their doctors”; NCDRC grants compensation of Rs 1 crore to the parents who lost their only child in corrective surgery for squint eye
While deciding the instant complaint wherein the issue was that whether the treating doctors at Sankara Nethralaya committed the breach in their duty of care while performing a corrective surgery for squint eye, which was the proximate cause of death of the child; the Bench of R.K. Agarwal, J., (President), Dr. S.M. Kanitkar and Binoy Kumar (Members) observed that it is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empaneled to provide medical care and it is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, with the hope that proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.
[Dr. Reba Modak v. Sankara Nethralaya]
Offer of possession of apartments without the amenities promised and arbitrary deduction of earnest money; Read to know whether NCDRC found Mahindra Homes liable for deficient service?
The Bench of S.M. Kanitkar (Presiding Member) and Binoy Kumar (Member) while deliberating upon the instant complaints seeking refund of amount paid against the total consideration of the flat booked along with interest; observed and held that Mahindra Homes and Ireo Pvt. Ltd., have committed deficiency in service vis-a-vis providing the complainants their apartment along with the amenities promised, and since the builder had deducted 10% of total sale consideration, hence the amount of earnest money deducted was not correct, especially when the complainants were not at fault.
[Hemant Narang v. Mahindra Homes Pvt. Ltd]
National Company Law Appellate Tribunal
NCLAT | Rejection of Resolution Plan by the NCLT due to Non-Serious, Casual and Non-Diligent Conduct of Resolution Appellant is Good in Law
In an appeal filed by the appellant against the order passed by the National Company Law Tribunal (NCLT) for cancellation of non-bailable warrants, a bench comprising of Ashok Bhushan*, M Satyanarayana Murthy, JJ., and Barun Mitra (Technical Member) held that the NCLT was right in refusing to approve the Resolution Plan due to non-serious, casual and non-diligent conduct of the Resolution Applicant.
[Cimco Projects Ltd. v. Anup Kumar, 2022 SCC OnLine NCLAT 61]