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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/2015-16/2995

Credit availment on Capital goods.

Case:- COMMISSIONER OF CENTRAL EXCISE, MUMBAI-I Versus KRCD LTD.
 
Citation:- 2014(303)E.L.T.587(TRI.-MUMBAI)
 
Brief case:- The brief facts of the case are that the respondent is a manufacturer of audio video CD. During the period 2003-04, the respondent procured capital goods on which duty was paid by them. The respondent took credit of whole of the duty paid on capital goods in the same financial year. The revenue is of the view that as per Rule 4(2)(a) and 4(2)(b) respondent is entitled to take credit to the extent of 50% of the duty paid on the capital goods in the year in which capital goods have been procured and remaining 50% is entitled for the subsequent year. Therefore, the show-cause notice was issued to the respondent for reversal of the excess credit taken by them in the financial year in which the capital goods have been procured by them.
 
Appellant’s contention:- The ld. AR on behalf of the revenue submits that in the impugned order there is a finding that the respondent has complied with Rule 4(2)(a) and 4(2)(b), therefore they are entitled for the credit. This is factually incorrect. Therefore, impugned order is to be set aside and adjudicating authority’s order is to be confirmed.
 
Respondent’s contention:- The ld. consultant on behalf of the respondent submits that the respondent are entitled to avail Cenvat credit of the whole of the amount of the credit although 50% in the same year and 50% in the subsequent year, and the respondent has taken the credit in one go but same has not been utilised by them. Therefore, they have complied with condition of Rule 4(2)(a) and 4(2)(b) of Cenvat credit Rules, 2002. Therefore, appeal is to be dismissed.
 
Reasoning of judgement:-The provisions of Rule 4(2)(a) and 4(2)(b) were reproduced as under :-
“Rule 4. Conditions for allowing Cenvat credit.-
(1)……….
(2) (a) The Cenvat credit in respect of capital goods received in a factory at any point of time in a given financial year shall be taken only for an amount not exceeding fifty per cent, of the duty paid on such capital goods in the same financial year :
Provided that the Cenvat credit in respect of capital goods shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year if the said capital goods are cleared as such in the same financial year.
(b) The balance of Cenvat credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, if the capital goods, other than components, spares and accessories, refractories and refractory materials and goods falling under heading No. 68.02 and sub-heading No. 6801.10 of the First Schedule to the Tariff Act, are in the possession and use of the manufacturer of final products in such subsequent years.”
After going through the above said provisions, it was found that respondent were entitled to take Cenvat credit of duty paid on capital goods up to 50% in the financial year in which the capital goods have been procured and remaining 50% of duty paid on capital in the subsequent year. As in this case, the respondent have availed the Cenvat credit of 100% of the duty paid on capital goods in the year in which the capital goods have been procured. Therefore, it was held that the respondents were not entitled to take credit more than 50% in the year in which the capital goods had been procured. But in the subsequent year, they were entitled for the said credit. Admittedly, in this case in subsequent year they had not availed any credit on such capital goods. Therefore, the argument advanced by the AR that they were required to reverse entire credit is not correct. As the respondents have taken the credit in advance wrongly which they were  entitled to take in the subsequent year. As the respondent had availed the credit in advance, therefore the respondent were required to pay interest for the intervening period for which they were entitled to take credit. Further, as the respondent had committed an error, therefore they were liable to pay the penalty under Rule 27 of Cenvat Credit Rules. Accordingly, penalty of ` 5000/- was confirmed against the respondent.
 
Decision:- The appeal was disposed of.
 
Comment:-The crux of the case is that the Cenvat credit of duty paid on capital goods can be taken only for an amount not exceeding fifty per cent in the financial year in which the capital goods have been procured and the balance of Cenvat credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer. In the present case respondent had taken the whole credit in the financial year in which the capital goods were procured on the ground that he will not utilize the credit exceeding 50%. But as per the provisions of Rule 4(2)(a) and 4(2)(b) respondent is even not allowed to take credit of the same.
 
Submitted by:- somya jain

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