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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: 05 Jun, 2007
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REPEAL OF MODVAT RULES: PREPARATION FOR RETROSPECTIVE EFFECT

REPEAL OF MODVAT RULES: PREPARATION FOR RETROSPECTIVE EFFECT
 
 
In a recent landmark judgment the Highest Court of India has held in case of Kohlapur Cansugar Works Ltd. V/s Union of India [2000 (119)ELT-257] that the proceeding pending under a Rule lapses on repeal of rule without a saving clause. Even the Clause 6 of General Clauses Act does not come to rescue as it is meant for Central Act, Enactment and Regulation and not for a Rule. 
 
            Furthermore, new CENVAT Rules have been incorporated in place of MODVAT Rules. We will also see impact of this decision on these Rules in this Article. To ponder over the subject we have to look for the definition of the Act, Regulation, Rules and Clause 6 of General Clauses Act and than visualize the aforesaid decision and evaluate its impact on omitted MODVAT Rules.
 
              The “Central Act” has been defined in section 3(7) of General Clauses Act which means an Act of Parliament, and shall include:
 
a) An Act of the Dominion legislation or of the Indian legislature passed before the commencement of Constitution, and
b) An Act made before such commencement by the Governor-General-in-Council, the Governor General, acting in a legislative capacity.
 
            The Section 3(19) of the General Clauses Act gives the Definition of “Enactment” which is enumerated below: -
            “It shall include a Regulation (as hereinafter defined and any Regulation of the Bengal, Madras or Bombay code and shall also include any provision contained in any Act ir in any such Regulation as aforesaid).”
 
            The term “Regulation” is contained in Section 3(50) which means a regulation made by the President under Article 240 of the Constitution and shall include a regulation made by the President under Article 243 thereof and a regulation made by the Central Government under the Government of India Act, 1935.
 
            The definition of “Rule” in Section 3(51) of the Act reads as the term “Rule” shall mean a Rule made in exercise of a power conferred by an enactment and shall include a Regulation made as a Rule under any enactment.
 
            From above, it is clear that Act, Enactment, Regulation and Rules are different. Normally, Act is passed by the Parliament and enactment is approved from President of India or Government of India. Whereas the Rules are made from the power taken from the enactment itself. This means that there is no need for the approval of Parliament or President of India.
 
            Now, we see Clause 6 of General Clauses Act which is for effect of repeal of Rules reads as follows: -
            6. Effect of Repeal: Where this Act or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: -
 
            (a) revive, anything not if force or existing at the time at which the repeal takes effect; or
            (b)  effect the previous operation of any enactment so repealed or anything duly done or suffered there under; or
            (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
            (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
            (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
            And any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
 
            We look at the case before Hon’ ble Supreme Court, the Rules 10 and Rules 10A were omitted from 6-8-1977 and a new Rule 10 was substituted. But no saving Clause was incorporated in the new Rules that the proceeding under old Rules will continue in new Rule. The proceedings were pending before Excise Authorities against the assessee. The Show Cause Notice was issued before 06/08/1977. The Hon’ ble Court held that omission of Rule 10 and 10A without a saving clause will amount to lapsing of the proceedings pending under the aforesaid Rules. Furthermore, the clause 6 of General Clauses Act is not applicable because it applies only in respect of Central Act or Regulation and not on repeal of a Rule. It makes no effect even if an enactment. Order passed in proceeding thereafter will be considered as non est. So, it is ample clear from aforesaid decision, pending proceeding under the repealed Rule without a saving clause in new Rules will be lapsed and there will no effect of clause 6 of General Clauses Act as it applies only on Central Act or Regulation.
 
            Now, we come to new CENVAT Credit Rules incorporated from April 1, 2000 in place of Modvat Rules. Earlier, the demands under erstwhile Modvat Rules were issued under Rule 57-I of Central Excise Rules. The new CENVAT incorporated new Rule 57 AH which confers power to recover wrongly availed CENVAT Credit. But this newly introduced Rule do not have any saving clause for proceeding initiated under old MODVAT Rules. This will imply that the proceedings pending with erstwhile provisions will lapse following the ratio decidendi of the Ruling of Highest Court of India.
 
            Now, the only option remaining with the Government is to go for retrospective amendment and incorporate the saving clause in the new set of Rules. It will get the approval of the Parliament of India. There are many retrospective amendments have been made by the Central Government in last year budget also. It is separate issue whether these amendments are rights or wrong but the Government is continuing with the same.
 
            There is no other alternative available to the Government to continue the proceeding under the repealed Rules after the clear cut finding of the Apex Court of India.    
 
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