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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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Publish Date: 25 Nov, 2015
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Credit Balance of Ed Cess & SHE Cess-Never Ending Story!

Credit Balance of Ed Cess & SHE Cess-Never Ending Story

An Article By:-
CA PRADEEP JAIN
CA NEETU SUKHWANI

Introduction:-The announcement of the exemption to the levy of Education Cess and SHE Cess levied on Excise duty with effect from 01.03.2015 and that levied on service tax with effect from 01.06.2015 created new hopes in the minds of the assessees as regards ‘Ease of doing business’ with reduction in the compliance procedure for maintaining separate accounting records for Education Cess and SHE Cess. However, the assessees forgot that everything comes for a cost. The hapeless assessees did not realise that the exemption brought the inbuilt cost in the form of unutilised balance of Education Cess and SHE Cess for which there was no amendment or clarification. This article is an attempt to highlight the probable difficulties faced by the assessees on account of no clarification as regards utilisation of the balance of Education Cess and SHE Cess available as on 01.03.2015 and 01.06.2015.  
 
Backdrop of recent amendments made by government:-Inspite of the much hype created as regards the fate of the balance of Education Cess & SHE Cess available with the assessees, the government has not responded in the correct perspective. The summarized version of the two notifications issued by the government is presented as follows:-
 
 

In-depth analysis of the scenario:-The assessees were waiting for the confirmation from the side of the government as regards utilisation of balance of Education Cess and SHE Cess as on 01.03.2015 and 01.06.2015 but on the contrary, the amendments were made for permitting utilisation of Education Cess & SHE cess on ‘Transit goods and services’. Anyways, following points are worth noting:-
ØThe government took around 5 months to amend Cenvat Credit Rules so as to enable service providers to utilise the education cess and SHE cess levied on transit goods and services whose invoices were issued after 01.06.2015. Furthermore, in author’s opinion, as exemption was granted to levy of education cess and SHE cess with effect from 01.03.2015, it is a very remote possibility that service provider would receive inputs/capital goods with education cess and SHE cess on or after 01.06.2015. But, as it is in favour of the assessee, we may appreciate the government’s action.
ØThe delay in making the amendment vide notification no. 22/2015-CE (NT) dated 29.10.2015 has also lead to inability to utilise the cenvat credit of education cess and SHE cess of inputs/capital goods/invoices of input services received on or after 01.06.2015 in the months of June, July, August and September, 2015 itself because the amendment is prospectively applicable with effect from 29.10.2015 whereas the last date of filing service tax return for the half year ending 30.09.2015 was 25.10.2015. Furthermore, even assessees revising returns are unable to utilise the said credit and reflect it in their service tax returns. The government should have released this amendment timely. Furthermore, there must have been certain assessees who have already availed and utilised cenvat credit of education cess and SHE cess on invoices received after 01.06.2015 on the presumption that similar amendment was made for manufacturers also and they might be probably receiving show cause notice for the same soon. 
ØThe government’s silence on utilisation of Education Cess and SHE Cess balance will also lead to complications in computing the quantum of cenvat credit wrongly availed under amended Rule 14 of the Cenvat Credit Rules, 2004. This is for the reason that Rule 14 presupposes that the opening balance of the month has been utilised first, thereafter the credit taken during the month is utilised next. However, as per above amendments, the balance of education cess and SHE cess as on 01.03.2015 and 01.06.2015 are intact while the education cess and SHE cess on inputs/capital goods/input services whose invoices are received after 01.06.2015 are in reality utilised first than the prevalent balance. If there is a case of wrong availment of cenvat credit after 01.03.2015, the calculations under Rule 14 will definitely be complicated.
ØApart from this, there is no restriction under the Cenvat Credit Rules, 2004 that the balance 50% cenvat credit of capital goods is to be availed in the next year itself. However, express provisions as regards utilisation of balance cenvat credit of capital goods are being made for capital goods received in the financial year 2014-15 only.
ØIt may also be noted that while manufacturers were permitted to utilise the education cess and SHE cess on input services received by them on or after 01.03.2015 against payment of excise duty, the service providers were continued to follow the restriction of utilising cenvat credit of education cess and SHE cess towards payment of Education cess and SHE cess only. This definitely placed service providers under a disadvantageous position and they should also have been permitted to utilise the education cess and SHE cess against payment of service tax on or after 01.03.2015.

Winding up:-The government is not clarifying what the assessees want and rather is making situations more complicated. When the government can permit utilisation of Education Cess and SHE Cess on transit goods received on or after 01.03.2015 by manufacturer and transit goods received on or after 01.06.2015 by service providers and services for which invoices are received after 01.06.2015, that too towards payment of excise duty and service tax, then there is no loss in permitting utilisation of the balance of education cess and SHE cess available with assessees as on 01.03.2015 and 01.06.2015. Well, all assessees are waiting a simple YES for utilising the balance of Education Cess and SHE Cess available with them as on 01.03.2015 and 01.06.2015.

 
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