Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1469

Admissibility of Rebate Claim

Case: Union of India V/s Rainbow Silks
 
Citation: 2011 (274) E.L.T. 510 (Tri. - Bom.)
 
Issue:- Whether the merchant exporter can be denied rebate on the basis that manufacture had fraudulently claimed CENVAT Credit?
 
Brief Facts:- First Respondent, who is a merchant exporter, filed two rebate claims in the office of the Assistant Commissioner of Central Excise (Rebate), Mumbai-I, in the amount of 1,07,989/- and 2,19,109/- in respect of duty alleged to have been paid on goods manufactured by two firms by the name of Jai Krishna Prints and Jai Santoshi Tex Prints. The goods were exported through the port of Mumbai.
 
On a scrutiny of the claims, Department noticed that the First Respondent had submitted duty paying certificates in loose/open condition. A reference was accordingly made to the jurisdictional Central Excise authority at Surat. The Range Superintendent in the Commissionerate at Surat reported by his communication dated 10 February 2006 that the processor (Jai Krishna Prints) had taken Cenvat credit on the basis of invoices of a grey material supplier, Ganpati Textile, Surat. An alert circular had been issued by the Commissioner of Central Excise at Surat on 22 September 2005 pointing out that as many as 71 firms, including Ganpati Textile, were non-existent and bogus.
 
A show cause notice had been issued on 25 January 2008 to Jai Krishna Prints for the recovery of Cenvat credit, wrongly availed of. On the basis of the above reports, the rebate claims of the First Respondent were rejected on 23 March 2006 by the Assistant Commissioner. The order of the Assistant Commissioner was confirmed in Appeal by the Commissioner (Appeals).
 
The First Respondent, thereupon filed a Revision under Section 35EE before the Joint Secretary to the Government of India. The Joint Secretary, while reversing the concurrent findings, came to the conclusion that the case of the First Respondent was similar to the decision of the Revisional Authority in the case of Shyam International, dated 18 May 2007, where it was held that a merchant exporter cannot be denied rebate for the reason that the manufacturer had availed of Cenvat credit wrongly on the basis of bogus documents, especially when there was no evidence to show any mutuality of interest, financial control, or flow-back of funds between the merchant exporter and the manufacturers/suppliers of goods.
 
The Government of India filed petition before the High Court against the impugned order.
 
Petitioner’s Contention:- Petitioner submitted that the Revisional Authority has proceeded on the basis that the case was covered by the decision in Shyam International, whereas, that is not the case. In the earlier case, the Revisional Authority had found that the transaction between the suppliers and the exporters was an arms length transaction, bona fide entered into between the two parties. As a matter of fact, the Revisional Authority had noted that if a charge in regard to want of bona fides had existed, then despite the purchase of goods by the merchant exporters on the basis of Central Excise documents/invoices showing duty payment, the transaction would be vitiated. In the present case, it is sought to be urged, that as a matter of fact, the investigation which was conducted in the matter involving the merchant supplier had disclosed that it was the exporter, the First Respondent, who had supplied the Grey Fabrics. The statement of the partner of Jai Krishna Prints was that he had not received the Grey Fabrics directly from the dealer or manufacturer, but he had received it through the exporter.
 
Respondent’s Contention:- On the other hand, it is urged before the Court on behalf of the First Respondent that in the present case, the goods were exported by the First Respondent. Having exported those goods, the First Respondent was entitled to a rebate. The First Respondent paid the manufacturer a composite price inclusive of duty. Counsel submitted that if there are any allegations about the want of bona fides or of wrongful availment of Cenvat credit against the manufacturer, the First Respondent should have an adequate opportunity of meeting such allegations.
 
Reasoning of Judgment:- The High Court noted that The record before the Court, inter alia contains an alert circular which was issued by the Central Excise Commissionerate at Surat on 22 September 2005 noting that during the course of the physical verification of firms, as a part of an investigation into the grant of fraudulent rebate, 71 firms at Surat were found to be bogus and non-existent. Among them was Ganpati Textile listed at Serial No. 13. On 25 January 2008 a notice to show cause was issued to Jai Krishna Prints on the allegation that it had wrongly availed of Cenvat credit on Grey Fabrics, on the basis of invoices issued by Ganpati Textile which was found to be a bogus and fictitious firm. In the notice to show cause, reliance was placed on the statement of a partner of Jai Krishna Prints, stating that he had not received Grey Fabrics directly from the said dealer/manufacturer, but that he had received it through the exporter himself. The notice to show cause culminated in an order dated 28 April 2008 of the Joint Commissioner confirming the demand in respect of the Cenvat credit wrongly availed of, penalty and interest. The order noted that the admitted position was that the unit did job work and had not received Grey Fabrics directly from the manufacturers but through the exporter. In Appeal, the Commissioner (Appeals) by an order dated 1 September 2009 modified the order. Upon a further Appeal by the department, the CESTAT remanded the matter back to the original Adjudicating Authority.
 
It was held that the reason why the High Court have adverted to the aforesaid facts, is that the Revisional Authority proceeded on the basis that there was no allegation of a want of bona fides on the part of the First Respondent. This assumption of the Revisional Authority is erroneous because the record before the Court, indicates to the contrary. It is the contention of the Central Excise Department that the First Respondent was a party to the fraud involving the grant of rebate. The fact that this was under investigation right from 2005 is evident from the alert circular dated 22 September 2005. In this view of the matter, the basis upon which the Joint Secretary to the Government of India allowed the claim for rebate was wholly erroneous. The Joint Secretary proceeded on the basis that the case is covered by his earlier decision in Shyam International. The distinguishing features upon which the Department places reliance would have to be considered by the Revisional Authority. Moreover, the Revisional Authority would have due regard to the parameters of the jurisdiction under Section 35EE of the Central Excise Act, 1944. The contention of the Revenue is that under Rule 18 of the Cenvat Credit Rules, 2002, rebate can be granted of excise duty paid on goods exported. According to the Revenue, in these cases no excise duty was as a matter of fact paid. Cenvat credit was accumulated on the basis of fraudulent documents of bogus firms and such credit was utilised to pay duty. Since there was no accumulation of Cenvat credit validly in law, there was no question of duty being paid therefrom. This submission warrants serious consideration and the Revisional Authority would have to apply its mind to it. In that view of the matter, the High Court found that the approach of the Revisional Authority is unsustainable.
 
The High Court accordingly quashed and set aside the impugned order dated 1 September, 2009 matter remanded.
 
Decision:- Petition allowed.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com