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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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CANON INDIA CASE UPDATE SERIES PART I: HISTORY

CANON INDIA CASE UPDATE SERIES PART I: HISTORY
CANON INDIA CASE UPDATE SERIES PART I: HISTORY
 
UPDATE ON WHETHER DIRECTORATE OF REVENUE INTELLINGENCE IS A PROPER OFFICER U/S 28(4) OF CUSTOMS ACT,1962
 
The interpretation of Legislature, Act, Rules and Regulation have been subject to complexities and part of litigation in history of Indian judicial system. Indirect tax laws are also no longer exception to same. In this update we shall discuss whether after clearance of the cameras on the basis that they were exempted from levy of Basic Customs Duty under Notification No.15/2012, the proceedings initiated by the Directorate of Revenue Intelligence for recovery of duty short paid under Section 28(4) of the Customs Act, 1962 is valid in law.
 
In the case of M/S CANON INDIA PRIVATE LIMITED in civil appeal in supreme court, digital cameras were imported by petitioner which were cleared without payment of duty on the basis of exemption under notification no. 15/2012 dt. 17-3-2012. Specific digital cameras were exempted vide entry no. 377 of the notification followed by conditions prescribed in the serial number 55 of the same.
 
The exemption was granted by custom authorities after due checking. Subsequently, SCN was issued under Section 28(4) ibid of the Act alleging that the Customs Authorities had been induced to clear the cameras by willful mis-statement and suppression of facts about the cameras.
 
Section 28(4) of the Customs Act allows PROPER OFFICER to issue SCN within 5 years from the relevant date in case wherein the duty has not been paid or short paid/levied due to collusion, willful misstatement or suppression of facts. The obvious intention is to confer the power to recover such duties not on ‘any proper officer’ but only on ‘the proper officer’.
 
The show cause notice was issued by the Additional Director General, Directorate of Revenue Intelligence. Issue arose whether the above-mentioned person fall within the ambit of proper officer to issue show cause notice u/s 28(4).
 
There are only two articles, ‘a or an’ and ‘the’. `A or an’ is known as the Indefinite Article because it does not specifically refer to a particular person or thing. On the other hand, ‘the’ is called the Definite Article because it points out and refers to a particular person or thing. There is no doubt that, if Parliament intended that any proper officer could have exercised power under Section 28 (4), it could have used the word any. Moreover, the initiation of proceedings under section 28(4) can be done only by the officer who has done the assessment earlier i.e. granted the exemption of duty. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank who initially took the decision to assess the goods.
 
The very purpose of the section 28(4)ibid is to recover the duty which has escaped assessment. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment. Thus, additional director who did not cleared the goods by giving exemption were not the correct authority to do re-assessment. The Additional Director General can be considered to be a proper officer under the said section only if it is shown that he was mentioned in notification no. 40/2021 dt. 2-5-2012 empowering the officers eligible under section 28(4)ibid. The notification only empowers deputy commissioner or assistant commissioner as the proper officer for initiating proceedings under above referred section 28(4).
 
Section 2(34) defines proper officer, proper officer, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs.
 
 
It can be concluded that DRI is not the proper officer under section 28(4) of Customs Act read with definition of proper officer as envisaged in section2(34), therefore, the proceedings initiated by DRI were dropped. Now the question arises whether the same analogy can be applied to other statues also?  We shall discuss the impact of this decision vis a vis other Statues in our next update.
 
 
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