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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/2011-12/1361

Clandestine Removal - Proof of

Case: BHAWANI SHANKER CASTINGS LTD. Versus CCE, JALANDHAR
 
Citation: 2009 (92) RLT 583 (CESTAT-Del.)
 
Issue:- Proof for charge of Clandestine removal – High Consumption of electricity but no other evidence supporting the charge – charge not sustainable.
 
Brief Facts:- Appellant is a manufacturer of M.S. Ingots. For the period 13.4.2000 to 31.07.2000, the officers found that as per the data of electricity consumption from the Mobile Meter Testing Squad (MMTS) Wing of Punjab State Electricity Board, the appellant has used electricity highly disproportionate to the production of M.S. Ingots accounted by them.
 
Accordingly, the Original Authority concluded that there was suppressed quantity of production of 422.794 M.T. of ingots valued at Rs.46, 39,734/- and held the same to have been clandestinely removed and accordingly, demanded duty with interest and imposed penalty.
 
The said order has been upheld by the Commissioner (Appeals). Hence, appellant is before the Tribunal.
 
Appellant’s Contention:- Appellant submitted that the main raw material for the manufacture of M.S. Ingots is scrap and no discrepancy in stock of scrap was noticed; no allegation of excess procurement of scrap was made; no evidence indicating use of excess labour, other raw materials was relied upon; no discrepancy in the stock of finished goods noticed; no evidence of any clandestine removal of the finished goods have been relied upon; being summer period, they were using air-conditioners, air-coolers and other appliances, which consumed lot of electricity. The Department did not provide the meter reading indicating alleged excess use of electricity.
 
Reasoning of Judgment:- The Tribunal held that there is allegation that electricity consumption is highly disproportionate to the production recorded. The Tribunal noted that no other evidence to substantiate the unaccounted production of steel ingots and clandestine removal of the same have been relied upon. The statement taken from the Authorised Signatory merely refers to the time required for completion of "a heat", which is reportedly between 2.45 hours to 3 hours.
 
It was noted that no other investigation on the relevant issues appears to have been taken. In reply to the show cause notice, the appellant has contested the charges and submitted that the production depends upon number of factors namely type of raw materials used, labour employed, break-down in machinery, erratic supply of electricity, etc.
 
The alleged quantum of electricity raises serious doubt in our mind also about the quantum of production recorded. The use of such excess quantity of electricity is being disputed by the appellant and they claimed that no meter reading to substantiate the same has been relied upon.
 
It was held that there is no other evidence to indicate suppression of production and clandestine removal. The charge of suppression of production and clandestine removal is a serious one and could not be upheld on a mere alleged use of excess electricity, which has also been contested by the appellant. Impugned order being unsustainable is set aside.
 
Decision:- Appeal allowed with consequential relief.
 
Comment:- This issue has been settled by the Tribunals as well as many High courts. But the department is keeping on issuing such type of demands without proper investigation and only on consumption of electricity. Consequently, such type of demands are dropped. But the assessee faces the harassment by facing such huge demands. But there is no accountability on the part of officer. Even if the cost of litigation is put on head of officer in such cases, they will stop issuing demands.  

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