Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1385

Delay in filing Appeal - Condonation of

Case: HBL POWER SYSTEMS (I) LTD. v/s COMMISSIONER OF C. EX., HYDERABAD
 
Citation: 2011 (271) E.L.T. 590 (Tri.-Bang.)
 
Issue:- Condonation of delay of 61 days in filing appeal before the Tribunal - Assessee pursuing wrong remedy before Revisionary Authority – sufficient reason – delay condoned.
 
Brief Facts:- Against the order passed by the Commissioner (Appeal), the appellant chose to file a revision petition with the Government of India within the prescribed time-limit. Later on, the Revisionary authority, having found that the correct remedy against the Appellate Commissioner's order was an appeal before the Tribunal returned the papers to the appellant instructing them to file and appeal before this Tribunal if so advised. The present appeal was filed on 11-3- 2010. This appeal ought to have been filed on or before 8-1-2010. Hence there is a delay of 61 days.
 
Application is filed by the appellant for condonation of delay of 61 days involved in filing of the appeal.
 
After hearing ld. Counsel for the applicant/appellant and Id. JDR for the Revenue, sufficient cause for condonation of this delay has been found. The appeal was directed against the Appellate Commissioner’s order.
 
Appellant’s Contention:- Appellant contended that the preamble to the Appellate Commissioner’s order did not guide them properly inasmuch as it laid down not only remedy but also revisional remedy. Therefore, they had preferred revision before the Government.
 
In support of the plea for condonation of the delay of 61 days, they rely on the decision in the case of Cairn Energy India Pty. Ltd. v. Commissioner of Central Excise & Customs, Visak-II [2008 (221) E.L.T. 440 (Tri. - Bang.)], wherein this Bench condoned the delay of an Excise appeal after taking note of the fact that the appellant had lost some time pursuing wrong remedy before another authority.
 
Respondent’s Contention:- Revenue argued that the cases in which a revision application to the Government of India could be filed as also other cases in which an appeal could be filed with this Tribunal were distinctly mentioned in the preamble to the impugned order.
 
Nevertheless, the conduct of the appellant during the interregnum between the Appellate Commissioner's order and the present appeal has to be taken into account. Upon receipt of the impugned order, the appellant chose to file a revision petition with the Government of India within the prescribed time-limit. Apparently, this was done on the basis of the appellant's understanding of para 2 of the preamble to the Appellate Commissioner's order. Later on, the Revisionary authority, having found that the correct remedy against the Appellate Commissioner's order was an appeal before the Tribunal returned the papers to the appellant instructing them to file and appeal before this Tribunal if so advised. The present appeal was filed on 11-3- 2010. This appeal ought to have been filed on or before 8-1-2010. Hence there is a delay of 61 days.
 
Reasoning of Judgment:- The Tribunal held that the conduct of the appellant during the interregnum between the Appellate Commissioner's order and the present appeal has to be taken into account. It was noted that the revision application was filed on time. But as the correct remedy was appeal before the Tribunal, the Revisionary authority had returned the papers. And the delay in filing appeal is for this reason.
 
The Tribunal held that the case law cited by the appellant also support their case. Admittedly, the appellant was mistakenly pursuing the revisionary remedy before the Government of India after receiving the Appellate Commissioner's order. Upon the papers having been returned by the revisionary authority, they filed an appeal with this Tribunal without unreasonable delay. Therefore, there is sufficient cause for for condonation of delay.
 
Decision:- Application allowed.

Comment:- This is very good decision wherein the appellant has filed appeal before revisionary authority but it was to be filed before the tribunal. The tribunal has rightly condoned the delay. When the delay has sufficient cause then the same should be condoned.

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