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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: 14 Jul, 2014
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MANDATORY FIXED PRE-DEPOSIT: LITTLE SOUR LITTLE SWEET

MANDATORY FIXED PRE-DEPOSIT: LITTLE SOUR LITTLE SWEET

 

 An article  by:-
CA Pradeep Jain
CA Preeti    Parihar
Shruti Bhandari

INTRODUCTION:-
Filing of appeal is a mechanism available to the assessees who are aggrieved by the orders passed by the adjudicating authority or the higher appellate authorities. However, mere filing of appeal is not sufficient and there is a condition of making pre-deposit of duty or tax amount involved in the case. Pre-deposit is a certain amount of duty or tax amount that is required to be paid beforehand to the government exchequer in order to get the case heard before the appellate authority. The amount of pre-deposit can differ under various circumstances depending upon the merits of the case and financial position of the assessee. However, budget, 2014 has proposed a fixed amount of pre-deposit which is mandatorily to be made for getting the case heard.
 
EXISTING SECTION 35F:-
Section 35F: Deposit, pending appeal, of duty demanded or penalty levied. —
Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit  with  the  adjudicating  authority  the  duty  demanded  or  the  penalty levied :
             Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.
             Provided  further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.
 Explanation. — For the purposes of this section ‘‘duty demanded’’ shall include, —
(i)     amount determined under section 11D; 
(ii)    amount of erroneous Cenvat credit taken;
(iii)   amount payable under rule 57CC of Central Excise Rules, 1944;
(iv)   amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004;
(v)    interest payable under the provisions of this Act or the rules made thereunder.
The existing section 35F states that the appeal will be heard only after the appellant has made a pre-deposit of the duty amount and penalty involved in the case. However, if pre-deposit will cause financial hardship on the appellant, the Commissioner (appeal) or Tribunal may grant full or partial waiver from pre-deposit.
 
PROPOSED SECTION 35F:-
Budget, 2014 has proposed to substitute section 35F as follows:-
“35F. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,—
(i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half percent of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise;
(ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half per cent. of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against;
(iii) against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten per cent. of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against:
Provided that the amount required to be deposited under this section shall not exceed rupees ten crores:
Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014.
Explanation.— For the purposes of this section “duty demanded” shall include,—
(i) amount determined under section 11D;
(ii) amount of erroneous Cenvat credit taken;
(iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004.
Thus, the proposed provision states that:-

  • The appeal should not be entertained unless the following amount is pre-deposited:-
Order passed by Appellate authority % of duty and/or penalty required as pre-deposit
Any officer of a rank lower than Commissioner of Central Excise Commissioner (Appeals) 7.5
Commissioner of Central Excise CESTAT 7.5
Commissioner (Appeals) CESTAT 10

 

  • The ceiling limit of pre-deposit has been proposed as Rs. 10 crores in the budget.
  • The proposed section states that this provision will be prospective and will not affect the stay applications pending prior to enactment of Finance (no. 2) Act, 2014.

 
Implication of amendment:-
The fixation of percentage of pre-deposit is a sign of relief to the appellants in the cases where the duty amount is very high. This amendment is beneficial particularly to those assessees who have very strong merits but they are insisted to make the pre-deposit as they have no proof to prove the financial hardship. Despite strong merits of the case, the assessees are compelled to make the pre-deposit which results into nothing but hampering their liquidity. Also, the amount pre-deposited by them is ultimately refunded to them when the favourable order is passed. However, the provision of mandatory pre-deposit will create problem for those appellants who have weak financial position and have strong merits of case. During our practice, we have come across couple of such cases where the persons were show caused as abettor inspite of the fact that they were not actively involved in the fraud committed by the main players of the case. The alleged abettors were small town people with negligible amount of assets. Since they were not filing any return, no documentary proof was available to prove the financial hardship. But the case was strong enough on merits. In such cases, the proposed provision will require the mandatory pre-deposit and a person with weak financial position may not be able to deposit the same and will lose the case without even hearing the merits. However, despite few drawbacks, this proposal should be accepted whole heartedly as it will reduce the cost of filing the appeal as the concept of filing the stay application will scrap away. Thus, there will be savings in precious time of appellate authorities which will ultimately lead to early disposal of appeals. 

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