Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1489

Availability of Exemptio benefit when required certificate submitted belatedly due to delay by Issuing Authority

Case: ENAR CHEMIC PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, VADODARA
 
Citation: 2011 (274) E.L.T. 221 (Tri. - Ahmd.)
 
Issue:- Availability of benefit of exemption under Notification No. 234/86-C.E. to Bulk drugs - Belated submission of required Certificate of Drug Controller of Govt. of India – delay due to concerned authorities – appellant vigorously pursuing for issuance of certificate – benefit not deniable.
 
Brief Facts:- For the period from 1-3-1986 to 19-11-1987, wherein the appellant were charged to have not discharging of their duty liability on the product "Di-calcium Phosphate" on the ground that appellant did not produce certificate from the Drug Controller of India as regards the eligibility of the said product for the benefit of Notification No. 234/86-C.E. Appellant contested the show cause notice. The adjudicating authority did not agree with the contentions raised by the appellant and confirmed demand and also imposed penalties and also demanded interest on the amounts confirmed.
 
Appellant’s Contention:- That appellants were pursuing with the Drug Controller of India for issuance of certificate from the date they were informed by the lower authorities for producing such certificate, he would draw our attention to a letter dated 14-12-1987 and further followed up by a letter issued by them to Drug Controller of India for issuance of certificate as required under the Notification No. 234/86. The Appellant would also our attention to the last letter written by the office of the Superintendent of Central Excise on 1-1-1988, issued by the office of Deputy Commissioner of Central Excise, Vadodara directing the appellants to produce the requisite certificate within one month from the date of receipt of such letter. The Appellant would also drew our attention to the certificate issued by the Drug Controller of India, which was dated 15-2-1988, which was submitted by the assessee to the Revenue authorities on 20-2-1988. It is his submission that the time lag from the date of receipt of letter from the Deputy Collector of Central Excise, Vadodara and time taken by them for submitting the Drug Controller's certificate was due to the fact that the said certificate was to be issued by an outside agency. He submits that the Hon'ble Gujarat High Court in the case of IFFCO v. 1101 - 1995 (75) E.L.T. 218 (Guj.), in para‑ graph 9 has clearly held and settled the law that the condition, fulfilment of which depends partly on the person and partly on the outside agency, cannot be said to be a mandatory condition. It is also his submission that Apex Court in the case of Commissioner of Customs (Imports) v. Tullow India Operations Limited – 2005 (189) E.L.T. 401 (S.C.) has clearly held that substantial provisions were stand complied with when once the certificate, which is required is produced before the authorities.
 
Reasoning of Judgment:- The Tribunal found that it is not in dispute that appellant's product "Di-calcium Phosphate" is a bulk drug and is eligible for the benefit of Notification No. 234/86-CE., dated 3-4-1986, subject to the condition that certificate from the Drug Controller of Govt.of India is produced within a period as the said officer may allow. It can be seen from the above reproduced certificate, the Drug Controller of India indicated in the above said certificate that this certificate is issued by them in furtherance of a letter from the appellant dated 14-12-1987.
 
It is also to be noted that the last letter directing the appellant to produce certificate within a period of one month was issued by the office of the Deputy Collector of Central Excise and Customs on 1-1-1988. It can be seen that the appellant was vigorously pursuing with the concerned authorities for issuance of certificate. The said certificate having been issued belatedly by the authorities, in our view, cannot be held against the appellant for denying them the benefit, for which otherwise he is eligible.
 
We are fortifying in our above view by the judgment of Hon'ble Gujarat High Court in the case of IFFCO v. U01 (supra), the ratio of the same as contained in Para 9, is respectfully reproduced :-"It is thus clear that an exemption Notification has to be construed in the light of the contents thereof. As aforesaid the Notification at Annexure 'A' postulates three conditions for earning the exemption provided thereunder. The first two conditions have to be complied with in full in order to earn the exemption thereunder. Payment of contribution in the aforesaid fund is a condition precedent for claiming the exemption.
 
It is also noted by the Apex Court in the case of Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Limited - 2005 (189) E.L.T. 401 (S.C.), and specifically held in Paras 29 and 30, which, we with respect reproduce :- "29. Both the Customs Department and Ministry of Petroleum and Natural Gas are departments of the Central Government. The substantive provisions which were required to be complied with for the purpose of obtaining the benefits under the said exemption notification have indisputably been complied with. It is not the case of the department that the assessee has anything to do with the grant of certificate except to pursue the matter to the best of its abilities. It is not in dispute that the importers were, but for production of the certificate, otherwise entitled to the grant of benefit in terms of the said notification. 30. The conditions referred to in sub-section (1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries, non-compliance of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit there from for all times to come."
 
In view of the foregoing, we find that the impugned order is unsustainable and liable to set-aside. The impugned order is accordingly, set-aside and appeal is allowed.
 
Decision:- Appeal 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