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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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Publish Date: 15 Mar, 2016
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Hopes of Auto Industry Shattered!

Hopes of Auto Industry Shattered! 

 

An article by:-
CA Pradeep Jain
CA Neetu Sukhwani &
Somya Jain

 
Introduction:- With the forthcoming budget 2016-17 there were lot of hopes and expectations of the automobile industry that they will be encouraged by way of various tax incentives but the budget came as a curse to them. All the hopes went in vain as soon as the Finance minister announced levy of Infrastructure cess on the vehicles. The levy of infrastructure cess came as a big blow to the car manufacturers.
 
Levy of Infrastructure Cess:-Vide Budget 2016-17, the government has announced to levy infrastructure Cess at the rate of 1 to 4 per cent on manufacturing of cars.
Infrastructure Cess is being levied on motor vehicles, of heading 8703, as per details mentioned hereunder:

Rate of Infrastructure Cess – Eleventh Schedule of Finance Bill 2016 read with Notification No. 01/2016-Infrastructure Cess dated 01.03.2016
The government has provided full exemption from the levy of Infrastructure Cess without any conditions on the following motor vehicles:-

SERIAL NO. CHAPTER HEADING DESCRIPTION OF EXCISABLE GOODS
1. 8703 Motor vehicles cleared as ambulances duly fitted with all the fitments, furniture and accessories necessary for an ambulance from the factory manufacturing such motor vehicles
4. 8703 Electrically operated vehicles, including three wheeled electric motor vehicles
5. 8703 Hybrid Motor Vehicles
6. 8703 Three wheeled vehicles
8. 8703 Hydrogen vehicles based on fuel cell technology

 
Furthermore, the government has provided exemption to the following motor vehicles subject to satisfaction of conditions prescribed therein:-

SERIAL NO. CHAPTER HEADING DESCRIPTION OF EXCISABLE GOODS CONDITION NO.
2. 8703 Motor vehicles (other than three wheeled motor vehicles for transport of upto seven persons), which after clearance has been registered for use solely as ambulance 1
3. 8703 Motor vehicles (other than three wheeled motor vehicles), which after clearance has been registered for use solely as taxi 1
7. 8703 Cars for physically handicapped persons 2

 
It is also worth noting that the condition no. 1 provides the exemption by way of refund mechanism as motor vehicles after clearance has been registered as ambulance or taxi.  A certificate issued by concerned State Transport Authority that the motor vehicle has been registered for use as ambulance/taxi is also required to be submitted to Assistant/Deputy Commissioner of Central Excise within 3 months or extended period of 3 months from the date of clearance of motor vehicle.
 
Furthermore, condition no. 2 requires certification from Deputy Secretary of Department of Heavy Industries that goods are capable of being used by physically handicapped persons and affidavit by buyer of car that the car will not be sold for five years after its purchase.
Moreover, the rate of infrastructure cess for following motor vehicles has been prescribed as follows:-

SERIAL NO. HEADING DESCRIPTION OF EXCISABLE GOODS RATE
9. 8703 Motor vehicles of length not exceeding 4000 mm, namely petrol, liquefied petroleum gases (LPG) or compressed natural gas (CNG) driven vehicles of engine capacity not exceeding 1200 cc 1%
10. 8703 Motor vehicles of length not exceeding 4000 mm, namely diesel driven vehicles of engine capacity not 2.5% - exceeding 1500 cc 2.5%

 
It is worth noting that the effective rates of the Infrastructure Cess have been made applicable with effect from 1st March, 2016.
 
Amendment in Rule 3 of Cenvat Credit Rules, 2004 renders Infrastructure Cess as ‘Non-Cenvatable’

No Cenvat credit of this Infrastructure Cess will be available under the Cenvat Credit Rules, 2004. The Notification No. 13/2016-CE (N.T.) dated 01.03.2016, has amended Cenvat Credit Rules, 2004 made applicable from 01.04.2016 wherein proviso has been inserted in Rule 3 (4) thereby stating that the cenvat credit shall not be utilised for payment of Infrastructure Cess leviable under sub-clause (1) of clause 159 of the Finance Bill, 2016. Hence, when the payment of Infrastructure Cess is to be made in cash only and no cenvat credit can be utilised for its payment, it is implied that the Infrastructure Cess is non-cenvatable. This is for the reason that restricting utilisation tantamounts to restricting availment of credit as there is no point in taking credit when the same cannot be utilised at all.
 
Good bye words:-The intention of levying Infrastructure Cess is clear from the Budget speech wherein it was clarified that the pollution and traffic situation in Indian Cities is a matter of concern and so this new levy is being introduced on motor vehicles.  However, this infrastructure cess will definitely result in hike in the prices of cars. Moreover, even the Supreme Court has already imposed a ban on registration of diesel vehicles with engine capacity of over 2000 cc in Delhi, observing the alarming rise in pollution levels. Now the government has decided to impose infrastructure cess upto 4 per cent.  
 

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PRADEEP JAIN, F.C.A.

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Phone No. :
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E-mail :pradeep@capradeepjain.com