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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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PJ/Case Laws/2012-13/1406

A totally new plea cannot be made before the High Court for allowing the appeal.

Case:- LADDAN STEEL WARE MFG. CO. Versus C.C. (IMPORT & GENERAL), NEW DELHI
 
CITATION:- 2012 (28) S.T.R. 309 (Del.)
 
Brief Facts:-Appellant herein had imported SS Coils claiming benefit of Notification 48/99-Cus., dated 29-4-2009 which required the appellant to export goods manufactured out of the said material by way of fulfilment of export obli­gation. Because of this reason, limited duty was not charged. A show cause no­tice was issued to the appellant by the respondent department al­leging contravention of the aforesaid notification. It was inter alia alleged that out of 407.070 MT SS Coils imported under the said Notification, 167.025 MT of Coils had not accounted for, and the utensils exported towards fulfilment of export obligation were manufactured out of locally procured material. The goods manu­factured by the appellant were got examined by the Central Revenue Control Laboratory (CRCL) and on that basis, allegation was made that some of the ex­port goods were not made out of the imported raw materials. Reply to this show cause notice was submitted by the respondents. After hearing the appellant, the agitating authority Commissioner of Customs passed an order-in-original upholding the demand in the show cause notice and also imposed penalty. The appellant filed an appeal against the respondent before the Cus­toms, Excise & Service Tax Appellate Tribunal (CESTAT) which has been dis­missed vide impugned order [2008 (231) E.L.T. 621 (Tribunal)] and challenging that order, present appeal is preferred.
 
Reasoning of Judgment:-The submission of appellant is that the appellant had made a request for re-testing of the material which was not accepted. However, it was found that no such plea was raised before the CESTAT. When the order of the Commissioner was not im­pugned on this ground and no grievance was made that the appellant's request for re-testing of the material was not accepted by the agitating authority such a plea cannot be permitted to be raised in this appeal for the first time. The High Court is in­formed by the learned counsel for the respondent that even before the agitating authority such a plea was not raised. In these circumstances, the other contention of the learned counsel for the appellant is that the appellant had raised several other pleas before the CESTAT which have not been considered by the Tribunal. ln this behalf, he has referred to para 3 of the impugned order, wherein conten­tion of the learned counsel for the appellant before the Tribunal has not been taken note of. It was found from the paragraph that the contention taken was that there was no evidence on record to show that the appellant had connived with M/s. Lad­dan Steelware Mfg. Co. for diversion of the imported goods. Other primary issue before the Tribunal was as to whether the allegation made against the appellant that it had diverted the imported material to other channels and had pro­cured local material for manufacturing utensils which was exported was correct or not. In this behalf, the learned Tribunal has rightly relied upon the report of CRCL and therefore, they did not find any merit in the appeal. The High Court, thus, do not find any substantial question of law in this appeal. It is accordingly dismissed.
 
Decision:-Appeal dismissed.
 
Comment:-The analogy drawn from this case is that a new contention that was not made before the lower adjudicating and appellate authorities cannot be made before the High Court as the order passed is not erroneous as regards the new contention raised subsequently.

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