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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
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 Law/2014-15/2150

Could a statutory provision be modified, amended or altered by an executive order?

Case:- M/s POLYPLEX CORPORATION LTD Vs JOINT SECRY. FINANCE AND OTHERS
 
Citation:- 2014-TIOL-605-HC-ALL-CX
 
Brief facts:- The short question raised before this Court was that petitioner had been denied rebate on export of goods by relying on restrictions relating to period etc. imposed by an executive order, i.e., Circular No. 354/70/97-CX dated 13.11.1997, copy whereof had been placed on record as Annexure-9 to writ petition.
 
Appellant’s contentions:- It was contended that in the Statutory Order/Notification No. 19/2004-C.E. (N.T.) dated 6.9.2004, there was no such restriction of limitation and a statutory order issued in exercise of power under Rule 18 of Central Excise Rules, 2002 (hereinafter referred to as "Rules, 2002) could not had been altered, amended, modified or efficacy thereof could not be extended by issuing an executive order. Therefore, it was held that the respondents in proceeding to decline the claim for rebate in Central Excise by relying on Circular dated 13.11.1997 had acted wholly illegally. In substance, it was stated that a statutory provision cannot be modified, amended or altered by an executive order.
 
Respondent’s contentions:- Sri Shukla , learned counsel appearing for respondents, could not dispute that as a matter of legal proposition, a statutory order, rule or regulation could not be altered, amended or modified by mere an executive order, but he submitted that Central Government possess power to issue Circulars also, which in absence of any otherwise provision, were binding.
 
Reasoning of judgment:- The Hon’ble Judge held that the above argument of learned counsel appearing for respondents would not help him for the reason that by means of Circular in question, Central Board of Excise and Customs had revised the procedure, which was to be followed in respect to acceptance of proof of exports, though the procedure was already prescribed in Notification dated 6.9.2004 and, therefore, the question of revising procedure for such proof touching upon the matter already covered by Notification dated 6.9.2004 did not arise for the reason that an executive order, laying down something otherwise than what was prescribed in the Notification would not be permissible in law. It was well established that an executive order could not prevail over the statutory rules. Mere executive decision could not authorize the authorities concerned to do something which was not otherwise permitted under statutory rules. It was well settled that an executive order could not prevail over statutory rules.
 
In Indra Sawhney and others Vs. Union of India and others, 1992 (Suppl) 3 SCC 217 the Apex Court held that though the executive orders could be issued to fill up the gaps in the rules if the rules were silent on the subject but the executive orders could not be issued which were inconsistent with the statutory rules already framed. In Laxman Dundappa Dhamanekar and another Vs. Management of Vishwa Bharata Seva Smithi and another, JT 2001 (8) SC 171 also the same view was taken.
 
In K. Kuppusamy and another Vs. State of T.N. and others, 1998 (8) SCC 469 the Court said that statutory rules could not be overridden by executive orders or executive practice and merely because the government had taken a decision to amend the rules did not mean that the rule stood obligated. So long as the rules were not amended in accordance with the procedure prescribed under law the same would continue to apply and would had to be observed in words and spirit. In Chandra Prakash Madhavrao Dadwa and others Vs. Union of India and others, 1998 (8) SCC 154 also the Apex Court expressed the same view holding that the executive orders could not be conflicted with the statutory rules.
 
In view of above exposition of law and considering the facts and circumstances of the case, the orders impugned in this writ petition could not sustain. The writ petition was allowed. Impugned order dated 9.9.2011 was hereby quashed. Respondent no. 4 was directed to re-consider the claim of petitioner with regard to rebate in central excise on the import of goods in question in the light of Notification dated 6.9.2004 and ignoring Circular dated 13.11.1997.
 
Decision:- Writ petition was allowed.
 
Comment:- The analogy drawn from the case is that though the executive orders could be issued to fill up the gaps in the rules if the rules were silent on the subject but the executive orders could not be issued which were inconsistent with the statutory rules already framed. Also, so long as the rules were not amended in accordance with the procedure prescribed under law, the same would continue to apply and would had to be observed in words and spirit.
 

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