Page 8 - GSTL_26th March 2020_Vol 34_Part 4

vi GST LAW TIMES [ Vol. 34
“Preparation of a kind used in Animal Feeding-Bio Processed Meal” not
entitled claim nil rate of duty under as per Notification No. 2/2017-C.T.
(Rate) and corresponding notification issued under State legislation — In
Re : Vippy Industries Ltd. (A.A.R. - GST - M.P.) ....................... 664
Appeal to Appellate Authority - Dismissal thereof for non-compliance of
pre-deposit order - Delay in filing second appeal leading to its dismissal -
Restoration on cost - Appellant-assessee pleading that he was under bona
fide belief that preliminary appeal filed before Tribunal against order of
Commissioner (Appeals) declining to grant unconditional stay would be
listed first which resulted in delay of 812 days in filing main appeal
before Tribunal - Notwithstanding controversy as to whether said
preliminary appeal was filed or not, since meanwhile entire due amount
of tax and penalty has been recovered from appellant, interest of justice
demands that case now be decided on merits - Accordingly, impugned
orders are quashed and appeal restored before Commissioner (Appeals)
for deciding it on merits subject to payment of cost of ` 50,000 within
three weeks by appellant - On failure to pay cost ibid, appeal shall not be
restored - Section 85 of Finance Act, 1994 — G. Mahesh Babu v. Commr. of Cus.,
C. Ex. & S.T. (Appeals II & VI) (S.C.) ........................... 577
Attachment of Bank Account - Power for provisional attachment of bank
account - It is not absolute - Expression “is of opinion” or “has reason to
believe” indicates that subjective satisfaction of Commissioner depends
on facts and circumstances of each case - “Opinion” must have rational
connection with or relevant bearing on formation of opinion - Rational
connection requires direct nexus/live link between protection of interest
and available property which might not be available at time of recovery
of taxes after final adjudication of dispute - “Opinion” must be formed in
good faith and not be mere pretence - Courts can determine whether
formation of opinion is arbitrary, capricious or whimsical - “Necessary”
requires that order and record indicating that it was necessary to take
drastic action of attachment - Section 83 of Central Goods and Services
Tax Act, 2017 — Bindal Smelting Pvt. Ltd. v. Addl. Dir. Gen., Directorate Gen. of GST
Intelligence (P & H) ................................... 592
— Power of provisional attachment - It is drastic and far-reaching power that
must be used sparingly and only on substantive weighty grounds and
reasons - It should be exercised only to protect interest of revenue and
not to ruin business of any taxable person - Section 83 of Central Goods
and Services Tax Act, 2017 — Bindal Smelting Pvt. Ltd. v. Addl. Dir. Gen.,
Directorate Gen. of GST Intelligence (P & H) ........................ 592
Auction of flowers - Assessee undertaking complete process of auction of
flowers and upon completion of auction receiving sale consideration -
Consideration paid by assessee to seller after deducting its commission -
Assessee offering dealers sophisticated facilities for online buying-remote
buying to attract an increasing number of international buyers to auction
- Wide gamut of activities of assessee beyond scope of a commission
agent since services rendered by it not restricted only to sale of goods on
behalf of sellers for consideration, which was main edifice of definition of
commission agent - Assessee’s activities more appropriately classifiable
as ‘Auctioneer service’ - Activity not covered by Serial No. 54(g) of
Notification No. 12/2017-C.T. (Rate) as “services provided by a
commission agent for sale or purchase of agricultural produce” even
though its covered under Section 2(5) of Central Goods and Services Tax
GST LAW TIMES  26th March 2020  104