Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2473

Can the retrospective effect of Notification No. 22/95 be given?

Case:-COMMISSIONER OF CENTRAL EXCISEVs M/s ARUNA STRAW BOARDS PVT LTD
 
Citation:-2014-TIOL-2114-HC-AP-CX 
 
Brief Facts:- This appeal under Section 35-G of the Central Excise Act, 1944 (for short the Act) is filed by the Revenue, feeling aggrieved by the order, dated 18.06.2004 passed by the Customs Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short the Tribunal).
 
The respondent is a manufacturer of paper and paperboards and the manufactured products are assessed to excise duty. The Central Government issued Notification No.1/93 in exercise of power under Section 5-A of the Act granting exemption upto Rs.30 ,00,000 /- in a financial year in favour of the small scale industries. The respondent is a small scale industry. In the subsequent year, Notification No.22/94 was issued stipulating the concessional duty at 10%, in case paper and paperboards are manufactured, using unconventional raw material.
 
On 01.03.1995, the Government issued Notification No.22/95. This is to the effect that in a given financial year, a manufacturer shall not be entitled to avail the benefit under both the Notifications viz., 1/93 and 22/94. The respondent got clearance of goods manufactured between 15.03.1995 and 31.03.1995. Alleging that the goods were got cleared by availing the benefit under both the Notifications, the Jurisdictional Assistant Commissioner issued a show cause notice to the respondent. An explanation was submitted by the respondent stating that it did not avail the benefit under both the Notifications simultaneously at any given point of time from 15.03.1995 onwards and that depending upon the circumstances, it availed the benefit either under Notification No.1/93 or 22/94. Satisfied with the explanation offered by the respondent, the Assistant Commissioner passed order, dated 09.02.1996. The Department carried the matter in appeal before the Commissioner of Central Excise (Appeals), Hyderabad. The appeal was allowed through order, dated 17.11.99. Thereupon, the respondent filed a further appeal before the Tribunal and the same was allowed through order, dated 18.06.2004.
 
Learned Standing Counsel for the appellant submits that the appellate Commissioner assigned cogent reasons in support of his conclusions to the effect that the assessee can avail the benefit under one notification or the other and not both. He further submits that the assessing authority as well as the Tribunal have ignored the precedents on the subject and have virtually permitted the assessee to avail the benefit under both the Notifications may be in different periods within the same financial year. He submits that such a course would run contrary to the very spirit of Notification No.22/95.
 
Certain substantial questions of law, as required under Section 35-G of the Act are framed and they are mostly referable to certain precedents. The period in question in the instant case is 15.03.1995 to 31.03.1995. This is obviously subsequent to the publication of Notification No.22/95. The only controversy is as to whether the respondent was entitled to avail the benefit under Notification No.1/93 on the one hand and Notification No.22/94 on the other hand, within the same financial year, even for different periods, by pressing into service one of the notifications. The gist of the contention of the appellant is that once the manufacturer chooses to avail the benefit under one notification in a particular financial year, it shall not be entitled to press into service the other notification, even for part of the period.
 
One fact, which added to the uncertainity or confusion in this regard, is that Notification No.22/95 became operational at the end of the financial year 1994-95. Though the record is not that clear, it appears that for the substantial part of the financial year 1994-95, the respondent availed the benefit under both the notifications till Notification No.22/95 came into force, but with effect from the date on which it came into force, it availed the benefit under only one of the notifications i.e.,22/94.
 
The plea taken by the appellant does not appear to be in accordance with law. The only purpose, which Notification No.22/95 was supposed to serve, was that the manufacturers, be not permitted to avail the benefit of the exemption of Rs.30,00,0000/- under Notification No.1/93 and the concessional duty of 10% under Notification No.22/94 at one and the same point of time. It is not even alleged that the respondent has availed such dual benefit after Notification No.22/95 came into force. In fact, the assessing authority, who issued show cause notice, examined the record and found that the benefit under Notification No.22/94 alone was utilised for the period in question. The appellate authority however proceeded on the assumption that once the respondent has availed the benefit under Notification No.1/93, for a part of financial year 1994-95, it is not entitled to switch over to the benefit under the other notification. This is not at all evident from either the notification or any decided case. The Tribunal has in fact pointed out that accepting the contention of the Department would amount to giving retrospective effect to Notification No.22/95. We do not find that any substantial question of law arises for consideration. Therefore, the C.E.A. is dismissed.
 
The miscellaneous petition filed in this writ appeal shall also stand disposed of. There shall be no order as to costs.
 
Decision:Appeal dismissed
 
Comment: - As per Notification No.1/93 in exercise of power under Section 5-A of the Act granting exemption upto Rs.30,00,000 /- in a financial year in favour of the small scale industries.
 
In the subsequent year, Notification No.22/94 was issued stipulating the concessional duty at 10%, in case paper and paperboards are manufactured, using unconventional raw material.
 
On 01.03.1995, the Government issued Notification No.22/95. This is to the effect that in a given financial year, a manufacturer shall not be entitled to avail the benefit under both the Notifications viz., 1/93 and 22/94.
 
Moreover, once the respondent has availed the benefit under Notification No.1/93, for a part of financial year 1994-95, it is not entitled to switch over to the benefit under the other notification. Also, this is not at all evident from either the notification or any decided case. Thus it would amount to retrospective effect to Notification No.22/95.
 
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