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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST UPDATE on WIDE POWERS OF COMMISSIONER APPEALS IN CUSTOMS

GST UPDATE on WIDE POWERS OF COMMISSIONER APPEALS IN CUSTOMS
The Budget, 2021 had amended the provision contained in section 5 of the Customs Act, 1962 which reads as follows: - SECTION 5 POWERS OF OFFICERS OF CUSTOMS- (3) Notwithstanding anything contained in this section, a Commissioner (Appeals) shall not exercise the powers and discharge the duties conferred or imposed on an officer of customs other than those specified in Chapter XV, section 108 and sub-section (1D) of section 110. Furthermore, the provisions as referred above are listed for the sake of convenient reference as follows: - Chapter XV pertains to Appeals and Revision Section 128A Procedure in appeal- (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper- (a) confirming, modifying or annulling the decision or order appealed against; or (b) referring the matter back to the adjudicating authority with directions for fresh adjudication or decision, as the case may be, in the following cases, namely: - (i) where an order or decision has been passed without following the principles of natural justice, or; (ii) where no order or decision has been passed after re-assessment under section 17; or (iii) where an order or refund under section 27 has been issued by crediting the amount to Fund without recording any finding on th evidence produced by the applicant. Section 108 Power to summon persons to give evidence and produce documents (3) All the persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required.  ??www.capradeepjain.com??pradeep@capradeepjain.com??5 SECTION 110 SEIZURE OF GOODS, DOCUMENTS AND THINGS.- “(1D) Where the goods seized under sub-section (1) is gold in any form as notified under sub-section (1A), then, the proper officer shall, instead of making an application under subsection (1B) to the Magistrate, make such application to the Commissioner (Appeals) having jurisdiction, who shall, as soon as may be, allow the application and thereafter, the proper officer shall dispose of such goods in such manner as the Central Government may determine.”. Therefore, according to amended section 5 of the Customs Act, the Commissioner (Appeals) is empowered to remand the case back to the adjudicating authority for decision afresh, power to summon a person for tendering statements and even to seize gold in form. The above provisions are no doubt very wide in ambit but they seek to distort the set framework of adjudication and appeal procedure in indirect taxation. As per general parlance, the Commissioner Appeals being first appellate authority is only a quasi judicial authority which is liable to re-consider the order already passed by the adjudicating authority. The Commissioner Appeals usually do not have the power of initiating investigation such as issuance of summons or carry out seizure of goods, documents or things. The issuance of summons for recording statement is the preliminary stage of investigation which cannot be resorted by the first appellate authority but the Customs Act, 1962 gives wide powers to the Commissioner Appeals. In this context, it is pertinent to mention that one of the most common contentions made by the assessees is that the order cannot be passed beyond the allegations made in the show cause notice. In other words, the issuance of show cause notice marks an end to the possibility of any further addition or advancement in the allegations made towards the assessees. Consequently, it has been pleaded in number of judicial pronouncements that the order passed beyond the allegations of the show cause notice is not at all legally tenable. Reference may be made to the following decisions:- • APEX FLUIDOMATICS LIMITED VERSUS ASSISTANT COMMISSIONER OF C. EX., AHMEDABAD [2014 (313) E.L.T. 106 (TRI. - AHMD.)] • ASSISTANT COMMISSIONER OF CUSTOMS, AHMEDABAD VERSUS KRISHNA PETROCHEMICALS ??www.capradeepjain.com??pradeep@capradeepjain.com??6 [2014 (304) E.L.T. 744 (TRI. - AHMD.)] • SAURABH ORGANICS PVT. LTD. VERSUS ASSISTANT COMMISSIONER OF CENTRAL EXCISE, THANE [2012 (275) E.L.T. 582 (TRI. – MUMBAI)] In light of the above cited decisions, it is clear that the Customs Act, 1962 empowering the Commissioner Appeals with the power of issuance of summons for statements and for seizure of gold is clearly distorting the already set mechanism of adjudication proceedings thereby adding to complexities. Consequently, the government should re-look their decision to empower Commissioner (Appeals) of Customs with such powers that have direct nexus with the adjudication of the case. This will lead to very unpleasant situation where a taxpayer contends that the order is moving beyond the show cause notice then Commissioner (Appeal) will start investigation once again. Else, on pleading of not taking of statements of a key person, the Commissioner summons that person and start taking his statement. So, starting of investigation once again by Appellate authority does not match with basic role of appeal by Commissioner (Appeal). Hence, delegation of such power to Commissioner (Appeal) will create chaos and confusion and lead to more disputes and litigation.
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