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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.  

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PJ/Case Laws/2011-12/1322

Conversion of SCN under One enactment to another - permissibility of

Case: THE COMMISSIONER OF CUSTOMS Vs M/s KESAR MARBLE & GRANITES & ORS
 
Citation: 2011-TIOL-381-HC-KAR-CUS
 
Issue:- Demand cannot be confirmed with out issuance of show cause notice.
 
Show cause notice issued under one enactment cannot be converted into being issued by anther enactment by way of issue of letter.
 
Brief Facts:- Respondent-assessees was served with show cause notice under Section 124 of the Customs Act, 1962 demanding duty and proposing to impose penalties. Assessee contended that the provisions of the Customs Act were not applicable to the present case.
 
Realizing their mistake, Revenue issued Letter dated 12.12.2000 for demand of duty under the provisions of the Central Excise Act. Assessees contended that the said Letter cannot be construed either as a corrigendum or addendum to the original show cause notice because it completely changes the basis of demand and the very complexion of the show cause notice. They relied on the judgment of the Apex Court in METAL FORGING vs UNION OF INDIA [2002 (146) ELT 241 (SC)] wherein it was held that a show cause notice was mandatory requirement for raising demand and that communications, orders, suggestions or advises from Department cannot deemed to be a show cause notice and therefore, it was urged that the said demand is unsustainable. They also contended that the activity of cutting and polishing of granites amount to manufacture only from 1.3.2006 in view of the Budgetary changes in 2006. Therefore, the alleged clandestine removal of granite slabs for the period from 1996-2000 does not amount to manufacture and hence no excise duty is payable.
 
The Adjudicating Authority over-ruled the objections and demanded duty under the Excise Act as well as the penalty.
 
Aggrieved, assessee filed appeal to the Tribunal. The Tribunal followed the judgment of the New Delhi Tribunal in the case of S.T.L. EXPORTS LIMITED v/s CC INDORE [2004 (168) ELT 272 (TRI. DEL] wherein it was held that the demand transformation from excise duty to customs duty belatedly more than 2 years from original notice is not permissible especially if at stage of reply to notice the Department did not realize its mistake. The Tribunal held that the enquiry notice issued under the Customs Act was not proper by issuing a letter, no demand of duty under the Excise Act could be made. A valid show cause notice being a condition precedent before levy of duty, in the instant case there was no valid show cause notice issued under the provisions of the Central Excise Act. Therefore, Impugned order was set aside.
 
Aggrieved by the same, Revenue is in appeal before the High Court.
 
Appellant’s Contention:- Revenue contended that once the assessee objected to the show cause notice that he is not liable to pay any customs duty, realising the mistake a corrigendum by way of a letter was issued converting the demand from customs duty to excise duty and therefore, no prejudice or hardship is caused to the assessee by such act and the Tribunal was in error in holding that the show cause notice is not valid and legal.
 
Reasoning of Judgment:- The High Court held that in the light of judgments relied on by the Tribunal where it has been held a valid show cause notice is a sine quo non before any duty and penalty is levied on the assessee coupled with the fact: a show cause notice issued under one enactment cannot be converted into a notice under another enactment, the High Court is satisfied that the show cause notice proceeding the demand is not a valid one. Moreover, prior to 1996 cutting of granite was not treated as a manufacture. It is from 1.3.2006 cutting and polishing of granites is treated as manufacturing activity attracting payment of excise duty. On facts, no case made out on Merits.
 
Decision:- Appeal dismissed.
 
Comment:- There is very important decision wherein the Hon’ble High Court has clearly held that the demand under one enactment cannot be converted into other by issue of Adjoiner to show cause notice. The department normally tries to cover their case. Such type of practice is normally followed by them to prove their case. But such an approach is clearly against the spirit of law as held in impugned order.

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