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Corporate News *  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. *  GST cross-empowerment doesn’t require separate notification; parallel proceedings on same issue remain barred: Madras High Court. *  Customs can’t insist on Form-I for India–UK CETA tariff claims supported by valid origin declaration: CBIC.    *  Missing vehicle details in E-Way bill cannot alone justify Rs. 17 lakh GST penalty: GSTAT. *  GST waiver application can’t be rejected solely for missing DRC-03A if tax was already paid: Madras High Court. *  Paver that reaches 9 metres only with bolt-on extensions can’t claim customs duty exemption: CESTAT. *  Profit from resale of  airline cargo space is not taxable as business auxiliary service: CESTAT. *  CENVAT credit reversal on trading activity can’t be calculated using entire sale price: CESTAT.     *  GST refund can’t be rejected on grounds beyond show cause notice: Calcutta High Court quashes ITC refund rejection. *  GSTR-2A entry alone can’t decide whether ITC was available for use: Sikkim High Court. *  Punjab & Haryana High Court quashes SVLDRS rejection, directs fresh consideration of interest waiver claim. *  GSTN introduces EmSigner version 3.3 for new DSC tokens issued from September 21. *  TDS paid from own funds not part of taxable value: CESTAT upholds service tax demand on wrong rate. *  Second E-way bill was fraudulently generated with intent to evade tax: GSTAT upholds penalty. *  Rs. 20 Lakh monetary limit bars admission without proven exception: GSTAT. *  Sec. 110(5) Customs Act: Patna High Court mandates pre-decisional hearing before attachment extension.
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GST update /2026-27/0096

Chelco Bind Grips v. Commissioner of CGST & CE, Thiruvananthapuram

 GST UPDATE

Hon’ble Authority: GSTAT, Thiruvananthapuram
Case Title: Chelco Bind Grips v. Commissioner of CGST & CE, Thiruvananthapuram.
Appeal No. & Citation:  Appeal No: APL//46/TVP/2026
Hon’ble Judge(s)  Hon’ble Shri Subramanya Rayaprol, Vice President &
Hon’ble Shri Ramamoorthi Sriram, Member (Technical)
Date of Order 8 October 2026
Outcome Appeal allowed
 

Brief Facts of the Case

M/s Chelco Bind Grips was issued a Show Cause Notice pursuant to an audit conducted under Section 65 of the CGST Act proposing disallowance of Input Tax Credit (ITC) on the allegation that the invoices against which ITC had been availed were not reflected in the recipient's GSTR-2A. The adjudicating authority confired part of the demand along with  Interest under Section 50(3) and penalty under Section 74(1). The appellant challenged the adjudication order. The appellate authority upheld the tax demand and the applicable interest. However, it recorded a finding that there was no evidence of fraud, wilful misstatement, collusion or suppression on the part of the appellant and, consequently, that the penalty under Section 74 and therefore imposed a modified penalty under Section 73(9) of the CGST Act. Aggrieved by such order, the appellant approached the GST Appellate Tribunal, Thiruvananthapuram.

Question before Hon’ble Authority

Can an appellate authority impose a penalty under Section 73(9) when the Show Cause Notice proposed penalty under Section 74(1)?

Brief Arguments by Appellant

  • Impugned Order is Self- Contradictory
Having found no fraud, wilful misstatement, collusion or suppression the Joint Commissioner (Appeals) modified only the penalty to Section 73(9) but left the Section 74(1) tax determination undisturbed. The appellant submitted that once the ingredients necessary for invoking Section 74 were found to be absent, the demand could not legally continue under the same provision.
  • Penalty under Section 73(9) could not be imposed without a determination under Section 73
The appellant further contended that the penalty imposed under Section 73(9) had no independent legal foundation because the proceedings had been initiated under Section 74(1). A penalty under Section 73(9) can follow only a determination under Section 73(1), which no authority made. The Show Cause Notice had proposed a penalty under Section 74(1), and no charge had been framed against the appellant under Section 73(9).
  • The appellate authority travelled beyond the scope of the Show Cause Notice
The appellate authority could not introduce a new statutory charge at the appellate stage and impose a penalty under a provision that had not been invoked in the notice.

Brief Arguments by Respondent

  • The demand was within the limitation period prescribed under Section 73
In the present case, the Show Cause Notice had been issued before the last dates for issuance of a Show Cause Notice and an Order-in-Original under Section 73 of the CGST Act. Accordingly, both proceedings had been initiated and concluded within the prescribed time limits applicable under Section 73(10) of the CGST Act.
 
  • No prejudice was caused to the appellant by the modification of the penalty
It submitted that the appellate authority had already granted relief to the appellant by reducing the penalty and imposing it under Section 73(9), instead of maintaining the penalty under Section 74(1). Therefore, the modification was beneficial to the appellant and no prejudice had been caused.

Findings and Judgement

  • Appellate Order clearly held that Section 74 is not applicable
The Tribunal found that the appellate authority had recorded a clear and reasoned finding that there was no evidence to establish fraud, wilful misstatement, collusion or suppression on the part of the appellant. It had also acknowledged that the appellant could not control the conduct of the supplier and could not necessarily know whether the supplier had remitted the tax collected. Further, the said finding was not challenged by the Revenue.
 
  • The tax demand under Section 74 was contradictory to its own findings
Once the appellate authority had found that the circumstances necessary for invoking Section 74 were not established, it could not simultaneously sustain the demand under that very provision. The Tribunal considered this to be a direct contradiction within the impugned order and characterised it as a classic case of non-application of mind.
  • The appellate authority could not suo motu impose a penalty under Section 73(9)
The Tribunal held that the appellate authority's action was outside the scope of the charges set out in the Show Cause Notice. Since the appellant had never been called upon to show cause why a penalty should not be imposed under Section 73(9), the penalty imposed under that provision was legally unsustainable. The Tribunal thus emphasised that an appellate authority cannot pass order under different penal provision that was never invoked in the Show Cause Notice. The Revenue could not defend the action merely by arguing that the penalty imposed under Section 73(9) was lower than the penalty proposed under Section 74(1).
  • The Revenue could not justify the demand on the basis of the limitation period under Section 73
The Tribunal observed that the Revenue could not, at the second appellate stage, seek to sustain the demand under Section 73(9) when the Show Cause Notice had invoked Section 74 and the finding against the applicability of Section 74 had not been challenged. It rejected the contention of the department holding that the question was not whether the demand could hypothetically have been raised under Section 73 is not important.
 
Accordingly, the Tribunal allowed the appeal and set aside the impugned Order-in-Appeal.
 

Opinion

Author’s Comment

The instant judgment holds that “once it is clearly established on facts that the penalty in the Appellate Order has been passed under a different section than that with which the appellant was charged in the SCN, the said penalty is null and void.” The Tribunal further observed that the Revenue cannot be permitted to contend that the penalty imposed under Section 73(9) of the CGST Act, in place of Section 74(1) invoked in the SCN, is valid merely because the amount of penalty is lower.
The important question that emerges here is regarding the applicability of Section 75(2) of the CGST Act. Although this provision was not discussed in the judgment, it is pertinent to examine its implications. Section 75(2) provides that where an appellate authority concludes that the notice issued under Section 74 is not sustainable on account of the absence of the ingredients necessary for invoking that provision, the proper officer is required to determine the tax payable by treating the notice as one issued under Section 73.
The statutory sequence, therefore, appears logical. First, the proper officer must determine whether the ingredients of Section 74 exist. Second, the appellate forum may examine and, if necessary, reject that determination. Third, if the appellate forum concludes that the ingredients of Section 74 have not been established, Section 75(2) prescribes the statutory consequence. Fourth, the proper officer determines the tax payable under Section 73. Further, Circular No. 254/11/2025 clarifies that the proper officer for this purpose shall be the same officer who is the adjudicating authority for such show cause notice. It has been held by the GSTAT Principal Bench in case of Sterling & Wilson Pvt. Ltd. v. Commissioner, Odisha, CT & GST (GSTAT Principal Bench, APL/1/PB/2026, 11.02.2026) in para 30 that “original Proper Officer who has issued Notice Under Section 74(1) of the CGST Act shall re- determine the tax payable by the Assessee and it cannot be done by the First Appellate Authority or the Tribunal. ... the matter has to be remitted back to the learned Proper Officer for re-determining the tax to be paid along with penalty, interest, etc.".
In view of the above, it is pertinent to note that there is a distinction between Section 107(11) and Section 75(2), which we shall discuss in detail in our forthcoming updates. However, in the instant case, the appellate authority, instead of suo motu imposing a penalty under Section 73(9), should have considered the statutory recourse under Section 75(2) and remitted the matter to the adjudicating authority for redetermination of the tax liability under Section 73, in accordance with law.
 
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