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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Laws/2011-12/1370

Avaialbility of credit on Customs duty & Special Additional duty - plea of knowledge whether can be raised?

Case: COMMR. OF C. EX., HALDIA v/s GANGA ELECROCAST LTD. (STEEL DIVISION)
 
Citation: 2011 (271) E.L.T. 288 (Tri.-Kolkata.)
 
Issue:- Availment of credit in respect of Custom duty as well as Special Additional duty – denied – whether plea can be raised that Revenue was aware of irregularities in the year when Audit memos were issued?
 
Brief Facts:- Respondents were working under CENVAT Scheme. During the period June 2003 to March 2004, Respondents availed credit in respect of Customs Duty as well as Special Additional Duty on the basis of bills of entry. The case of the Revenue is that as per the provisions of CENVAT Credit Rules no credit is permissible in respect of basic Customs Duty and Special Additional Duty. Show Cause Notice was issued on 4-6-2008 demanding duty after denying credit and for imposition of penalty alleging suppression with intent to evade payment of duty.
 
The Adjudicating Authority confirmed the demand along with interest and also imposed a penalty under Section 11AC of the Act. In appeal, the Commissioner (Appeals) after taking into consideration the Audit Notes issued on 5-4-2006 to 10-4-2006 whereby it has been pointed out by the Audit that Respondent had availed wrong credit held that the Show Cause Notice dated 4-6-2008 is time barred as Revenue was aware of the fact that Respondents had availed the credit when the Audit Notes were issued.
 
Hence, Revenue is in appeal before the Tribunal.
 
Appellant’s Contention:- Revenue contended that the findings of the Commissioner (Appeals) regarding time-bar is not sustainable in view of the decision of the Gujarat High Court in the case of CCE, Surat-I v. Neminath Fabrics Pvt. Ltd. [2010 (256) E.L.T. 369 (Guj.)] wherein it was held that suppression is not demolished merely because department acquired knowledge of irregularities.
 
Respondent’s Contention:- Respondent argued that when the Audit Notes were issued in the year 2006 Revenue was aware of the fact regarding irregularities therefore thereafter it cannot be held that they suppressed the material facts with intent to evade payment of duty. Hence the impugned order is rightly passed. They relied upon the decision of Supreme Court in the case of Nizam Sugar Factory v. CCE, A.P. [2004 (04) LCX 0021]. It was further contended that the decision of the Tribunal in the case of Neminath Fabrics Pvt. Ltd. v. CCE, Surat-I [2009 (234) E.L.T. 525 (Tri.-Ahmd.)]. They also relied upon the decision of the Tribunal in the case of Commissioner of Central Excise, Kolkata-II v. Giriraj industries [2008 (223) E.L.T. 640 (Tri.-Kol.)] against which the Revenue filed Appeal and the same was dismissed by the Calcutta High Court reported at [2009 (242) E.L.T. A84 (Cal.)].
 
Reasoning of Judgment:- The Tribunal found that that in the Nizam Sugar Factory case, the Supreme Court held that when the first Show Cause Notice was issued all the relevant facts were under the knowledge of the authorities therefore in the subsequent Show Cause Notices allegation of suppression is not sustainable. It was noted that the Respondent relied upon the decision of the Tribunal in the case of Neminath Fabrics which is overruled by the Gujarat High Court reported in 2010 (256) E.L.T. 369 (Guj.). The other decisions relied upon by the Respondent there is no ratio of law laid down whereby the demand was simply set aside on the ground of inaction on the part of Revenue authorities and Appeal against this decision was rejected by the High Court as no specific question of law was involved.
 
On the other hand, the Tribunal found that the Gujarat High Court in the case of CCE, Surat-I v. Neminath Fabrics Pvt. Ltd. have dealt with the situation where the Revenue was aware of the irregularities and Show Cause Notice was subsequently issued with the allegation of suppression with intent to evade payment of duty.
 
It was held that the said judgment was fully applicable to the facts of present case and there was no merit in Respondent’s contention that Revenue was aware of the irregularities in the year 2006 when Audit memos were issued, hence the allegation of suppression is not sustainable. Impugned order set aside. Order of the Adjudicating Authority restored.
 
Decision:- Appeal allowed.
 
Comment:- This issue has been settled by Gujarat High Court that the show cause notice is not required to be issued from the date of knowledge by the department but if the willful suppression and fraud is deducted then the demand can be issued within five years.

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