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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: 27 Jun, 2013
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Restoration of Charm of Settlement Commission

  

Restoration of Charm of Settlement Commission

An article by:
CA Pradeep Jain
CA Preeti Parihar
CA Neetu Sukhwani
 
 

Introduction

The budget for the financial year 2013-14 took a hard hand by drastically amending the penal provisions relating to the offences under the Central Excise and Service Tax law. Though these provisions are harsh in the way making certain offences as cognizable and non-bailable, but, these amendments seems to restore the charm of Settlement Commission. How? To have an answer to this question, let’s have a close look on the relevant amendments and their implications.
 
Section 32K – Prior to 1.6.2007

Section 32K of the Central Excise Act, 1944 empowers the Settlement Commission to grant immunity from prosecution and penalty in certain cases. This section prior to 1.6.2007 read as follows:-

32K. POWER OF SETTLEMENT COMMISSION TO GRANT IMMUNITY FROM PROSECUTION AND PENALTY. -

(1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also either  wholly or in part from the imposition of any penalty, fine and interest under this Act, with respect to the case covered by the settlement :
Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E

Thus, prior to 1.6.2007, the Settlement commission was empowered to grant immunity from prosecution for any offence under the Central Excise Act as well as under the Indian Penal Code or under any other Central Act for the time being in force. Also, the immunity could be granted either wholly or partly from imposition of penalty, fine and interest under this Act.
 
Section 32K w.e.f. 1.6.2007

An important amendment was made in section 32K effective from 1.6.2007 whereby the offences covered by Indian Penal Code or any other Central Act were detached from the purview of this section. The amended section as existing at present reads as follows:-

(1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act and also either  wholly or in part from the imposition of any penalty and fine under this Act, with respect to the case covered by the settlement :

Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E.

Explanation – For the removal of doubts, it is hereby declared that applications filed before the Settlement Commission on or before the 31st day of May, 2007 shall be disposed of as if the amendment in this section had not come into force.

Thus, as from 1.6.2007; the Settlement Commission is empowered to grant immunity from prosecution for any offence under the Central Excise Act only. Also, the immunity from interest was also done away as from this date. Thus, now the immunity can only be granted from imposition of penalty and fine under Central Excise Act. To justify with the old cases, an explanation was added to the effect that the old cases prior to 31.5.2007 were to be disposed off as per old provisions.  
 
Assessees Resorting Settlement Commission

Since the settlement commission was empowered to grant immunity from prosecution, most of the assessees resorted to it only for the purpose of escaping the prosecution. The fear of prosecution was the significant factor that increased the no. of cases pending with Settlement Commission every year even after 1.6.2007 when only the offences related to Central Excise Act were subject matter of Settlement Commission. The scene continued for few more years till year 2011 when the Supreme Court judgment in the case of M/s Om Prakash was passed.
 
Supreme Court judgment in the case of M/s Om Prakash v/s UOI:-

In the landmark judgment given by the Hon’ble Supreme Court in the case of Om Prakash vs Union of India [2011 (272) E.L.T. 321 (S.C.)], it was held that all the offences under the Central Excise Act and the Customs Act were bailable and non-cognizable. This judgment diluted the charm of going towards settlement commission as the offenders also took a lenient attitude due to the sole reason that they would be bailed for any offence that is committed under these Acts. However, there had been several problems in going to Settlement Commission that were in form of additional liabilities under Income tax or sales tax laws as the income disclosed in one law was followed by notices under other laws. But still the immunity from prosecution was the main factor that attracted the assessees towards the Settlement Commission. But this decision had the effect of diluting the lure of getting immunity from prosecution and in some way weakened the relevance of the provision of immunity.
 
Amendments: Budget, 2013-14:-

Budget, 2013 has brought significant amendments in section 9A of the Central Excise Act, 1944 and simultaneous amendments in the service tax law too. Under Central Excise Act, the offences where the duty liability exceeds Rs. 50 lakhs have been made as cognizable and non-bailable. Similarly, under service tax law, any person who collects the service tax but does not pays it to the government exchequer within six months and the amount exceeds Rs. 50 lacs; is liable to imprisonment upto 7 years.
 
Implication of Budget, 2013:-

The budget, 2013 has taken a chance to make certain offences as cognizable and non-bailable. This attempt seems to have nullified the impact of Supreme Court judgment in the case of M/s Om Prakash. Thus, the fear of imprisonment has arisen once again in the minds of offenders. This amendment seems to restore the relevance of section 32K of the Central Excise Act, 1944.
 
While parting:-

The recent amendments clearly reveal the stringent attitude of the government to punish the persons with go-by attitude towards the legal provisions. It seems that the charm of moving to Settlement Commission would be regained so that more applications would be now be pending for settling the case as there is immunity from prosecution under Central Excise Act. Thus, the charm of Settlement Commission that existed prior to decision of Supreme Court in the case of M/s Om Prakash seems to be restored by this amendment.
 

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