Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2526

Approach of ignoring report which was in favour of assessee is unjust.

Case:-M/s BIRLA CORPORATION LTD Vs COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II
 
Citation:-2015-TIOL-202-CESTAT-DEL

Issue:-  Approach of ignoring report which was in favour of assessee is unjust.
 
Brief Facts:- After dispensing with the condition of pre-deposit of dues, the appeal itself was taken up for disposal.The Tribunal finds that there is gross violation of principles of natural justice by the adjudicating authority in passing the present impugned order.
 
Proceedings were initiated against the appellant for denial of cenvat credit on various iron and steel items, on the allegations that the same were used as structural and in view of the Larger Bench decision of the Tribunal in the case of Vandana Global Ltd, they would not be eligible for the purpose of cenvat credit. During the course of adjudication, the appellant took a categorical stand that most of the iron and steel items were used in fabrication of capital goods or for repair and maintenance, in which case, they would be entitled to the benefit of cenvat credit.
 
By taking note of the above contentions of the appellant, office of the Commissioner sought a report from the jurisdictional Central Excise Authorities. In this connection, a letter dated 16.12.2013 written by the Superintendent is reproduced below for better appreciation:-
 
"Please refer to the above Show Cause Notice. The Hqrs. Office has soughtverification to the effect that the items on which cenvat credit was taken by you were used in the manufacture of capital goods, repair & maintenance of plant and machinery or in civil construction/structural work.
 
In order to conduct this verification, it is requested to provide following information/documents:-
 
(i) Issue slip from stores evidencing the issuance to particular department/section of the plant and purpose of issuance of the goods.
(ii) End use certificate issued by the concerned department after use of the issued goods in their section
(iii) Chartered Engineer certificate showing the use of goods for particular purpose.
(iv) Details of capital goods manufactured during the relevant period.
(v) Any other document which can establish the use of impugned items in particular machine/section/capital goods."
 
In response to the said letter the appellant filed their reply dated 6.1.2014. producing all the evidence on record. For ready reference, the said letter is reproduced below:-
 
"With reference to your letter no. 1587 dated 30.12.2013 we are submitting the following:-
 
1. Item wise and year wise summary of disputed items (2 pages)
2. Sample of Drawings (22 nos) attached, which proves that we have used the said items for making the items and for repairing and maintenance.
3. We are also submitting the item wise, Year wise total bill amount where we have not taken the cenvat credit (9pages).
4. Some material issue passes and ledger (34 pages).
5. Certificate dated 19.10.2013 of our Shri S.K. Gupta, DGM(Engg.)
 
From the above, it is very clear that we have taken CENVAT credit where it is available otherwise we have not taken. To steel is used only for the foundation of the machines, which is part of machine."
 
 
 
 
Reasoning of Judgement:-Subsequently, the Dy. Commissioner having jurisdiction over the appellant's factory submitted areport under the cover of his letter dated 29.01.2014.The said report is a detailed report, takinginto consideration the various items in question and reporting that most of the items have eitherbeen used in fabrication of capital goods or for repair and maintenance , whereas it is possible tofind out in respect of the certain items. The report also concluded that the assessee had notavailed the credit on a large quantity of iron and steel items and as such, it can be safelyconcluded that quantity which have been used for civil and structural purposes.
 
Surprisingly the said report of the Dy. Commissioner, which was sought by the Commissionerhimself, stands fully ignored by him while passing the present impugned order. For the reasons best known to him, the adjudicating authority has completely shut his eyes towards the saidreport. If the said report of the Dy. Commissioner was not to be taken into consideration by theadjudicating authority, we really fail to understand and appreciate as to why the report was calledfor. Probably the said report has not been referred to by him as the same is in favour of theassessee, to the major extent. Such an action, on the part of the adjudicating authority, cannotbe appreciated inasmuch as the same reflects upon the biased premature determination of theiradjudication. Having said so. we deem it fit to set aside the impugned order and remand thematter to the Commissioner for fresh decision in the light of the report dated 29.01.2014 of theDy. Commissioner. We also note that a major part of the demand is barred by limitation and theappellant would be within their right to contest the same on the ground of time bar. The staypetition as also appeal gets disposed of in the above manner.
 
Decision:-Appeal allowed by way of remand.

Comment:- The essence of this case is that evidence plays a wide role in the process of judgement and so the decision making authority is entrusted with crucial task of considering the evidences so provided in unbiased manner. The biased premature determination ofadjudication is never appreciated for consideration of evidences as the same is against the principles of natural justice.

Prepared By: Meet Jain
 
 

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