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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: 05 Jun, 2007
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REFERENCE TO LARGER BENCH: POINTS OF DIFFERENCE

REFERENCE TO LARGER BENCH: POINTS OF DIFFERENCE
 
 
Introduction: -
 
The present article tries to visualize the subject of reference to Larger Bench in case of difference of opinion between different benches of Tribunal. This article ponders over the subject whether the case can be referred even if there is no difference of opinion in different benches.
 
The back drop story: -
 
Recently, I was attending a hearing in the Appellate Tribunal before a Single Member Bench for inclusion of galleries in length of Chamber for calculation of duty liability for independent processors covered under Section 3A of Central Excise Act. There was divergent decision on the subject. The New Delhi Bench in case of C.M.Paints & Ors. V/s. CCE [2000 (40) RLT- 220] held that gallery is includible in length of chambers whereas the Chennai Bench in case of Chimanlal Silk Mills (P) Ltd. V/s. CCE, Hyderabad [2000 (39) RLT-608] & R.M.Gupta Textiles (P) Ltd. V/s. CCE, [2000 (40) RLT-234] held that it is not includible. The question arose that the matter should be referred to Large Bench.
 
It was argued that since there is a difference of opinion between the double benches of Tribunal. The matter should be referred to larger bench but the argument advanced by us that the Delhi bench has given a verdict on one reasoning, i.e. seeking the function of gallery. But the Chennai bench has given the decision on two merits made by Notification No. 14/2000 (CE) NT dt. 01.03.2000 by which gallery are excluded from March 1, 2000. He argument that the matter should not be referred to larger bench though there is a difference of opinion on first point but there is no difference on second merit as it was not considered by Delhi bench. But the matter could not take its final step and was adjourned for next date and clubbed with other cases.
 
Provisions: -
 
Now we will try to see the provisions of reference to larger bench in this article. Section 129(5) of Customs Act is a relevant provision which is enumerated below:-
 
“5 If the members of the bench difference opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the president for hearing on such point or points by one or more of the other members of Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of members of the Appellate tribunal who have heard the case including those who have first heard it provided that where the members of a special Bench are equally divided, the point or points in which they difference shall be decided by the president.”
 
The aforesaid provisions clearly bring about a distinction between point of difference as well as the case. The matter will be referred on the points of difference. So, the matter can be referred to president for constituting larger bench on points of difference only. There can be difference on a point like in above case but it can be decided on other point on which there is no difference.
 
Judicial Rulings:
 
Furthermore, the Apex Court has given a decision in case of Union of India V/s. Paras Laminates (P) Limited [1990(49) ELT-322(SC)] which is also relevant. The ratio decindandia   
of aforesaid decision is applicable on the subject.
 
Earlier decision of tribunal not likely to be disregarded specially when, they are rendered by larger benches. But Two Member Bench has freedom to doubt the correctness of earlier decisions of three member Bench and refer the case to Larger Bench.”
 
It further held that:-
“A bench of two members should not lightly disregard the decision of another Bench of the same Tribunal or any identical question, especially when the earlier decision is rendered by Larger Bench. Rationale of this rule is the need of continuity, certainty and predictability in administration of justice because the affected person has a right to expect that earlier decisions in identical matters will be followed. It is, however, equally true that it is vital to the administration of justice that those exercising judicial powers must have necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in earlier case. In such circumstances, it is reasonable and indeed efficacious that a case if referred to Larger Bench.”
 
So, the single member Bench hearing the case can refer the matter to larger Bench when he do not agree with the decision. Even in the present case, the Single Member can refer the matter to Larger Bench if he do not agree with second finding of retrospective effect of amendment of two member bench. But they can not refer simply on the ground that there was divergent decision on the subject.
 
CONCLUSION:
 
Therefore, the conclusion of the complete discussion is that:-
(i)         a case can be referred to a larger Bench on points of difference between different Benches of a tribunal.
(ii)        But if the case can be distinguished on the basis of any point on which there is no difference of opinion between the benches, then it can not be referred to larger Bench.
(iii)       However, the Bench hearing the case can refer it to larger Bench by saying that I do not agree with earlier decision on the point. But it can not be simply referred on the basis of divergent view of benches.
 
 
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