Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

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.

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