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/2012-13/1000

DEPB benefit - whether can be fraudulent when claimed in DEPB Schedule before change?

Case:M/s KHANNA PAPER MILLS LTD Vs CC, AMRITSAR
 
Citation: 2012-TIOL-94-CESTAT-DEL
 
Issue:- Availability of DEPB benefit – change in DEPB schedule – export before change – whether duty can be demanded by denying DEPB benefit alleging fraudulent conduct?
 
Brief Facts:- Appellant exported writing and printing paper in rolls and reels claiming DEPB benefit against entry 459B of DEPB schedule.  Exports were allowed after examination of the goods by the customs authority, the appellants sought for DEPB scrip from DGFT authority which was granted to them. Based on DEPB scrip issued to them the duty free imports have been made.
 
Show cause notices issued alleging that the goods exported by them were not "in cut sizes" and therefore the claim for benefit against entry 459B DEPB schedule has been wrongly claimed and the DEPB scrip were wrongly obtained and used for import of goods duty free and therefore, imported goods were liable for confiscation and that the duty on the imported goods was demandable and penalty imposable.
 
The Commissioner confirmed the demand of duty in both cases along with interest and imposed penalties. The Commissioner also held that the goods exported were liable for confiscation and imposed redemption fine in lieu of confiscation. Similarly, it was held that the goods imported were liable for confiscation and imposed fine in lieu of confiscation.
 
The appeals are filed by the Appellant before the Tribunal.                                                                                                                                                                                                                                                                                                                                                      
 
Appellant contention: - Appellants submits that the goods were exported after correctly declaring the description and claiming the benefit of DEPB under serial No.459B of the schedule and the customs authorities have examined the goods for the correctness of the description as per shipping bills and allowed clearance. Based on assessed shipping bills the appellants claimed the DEPB scrip from the DGFT authorities who after necessary verification issued the scrip. The imports have been made using the DEPB scrip validly issued by DGFT authorities. The Appellant submitted that “cut into sheets of various sizes” was made in the entry no. 459B only with effect from 27.01.06 hence the export  made prior to 27.01.06 cannot be held to be misdeclared. The DGFT authorities' clarification to the appellants vide the letter dated 31.8.06 and the DGFT clarifications to the customs authorities vide letter dated 11.12.06 are to the effect that the amendment would be applicable only with effect from 27.1.06 and the goods exported by them reels/rolls prior to 21.1.06 were eligible for the DEPB benefit under serial no. 45913 of the DEPB schedule.  He further submits that interpretation on the scope of the DEPB licence is within the jurisdiction of the DGFT authorities only. In support of this contention, learned advocate relies on the decision of the Hon'ble Bombay High Court in the case of Pradip Polyfils Pvt.Ltd. vs. Union of India reported in 2004 (173) ELT 3 (Born.) and decision in the case of Economics Traders (GUI.) Ltd. and anr. Vs. Union of India reported in 2006 (130) ECR 0418 - 2006 (104) ECC 0418.
 
Respondent contention:-Revenue submitted that the appellants have exported the paper declaring the products as if they were "cut to sizes"; the exports documents with such misdeclaration were submitted to DGFT and DEPB scrip were got issued; that using such invalid DEPB scrip fraudulently/wrongly obtained from DGFT, the appellants have imported goods without payment of duty. Therefore, the order of the confiscation of the exported goods and imported goods, demand of the duty on the imported goods and imposition of penalties should be upheld.
 
Reasoning  of Judgment:- The Tribunal perused the description of serial no 459B of the DEPB schedule before amendment with effect from 27.1.06 and after amendment.  And held on the facts of the case that the Tribunal is unable to agree with the view taken by the Commissioner that there was misdeclaration while exporting the goods and in getting DEPB scrip. The DEPB scrip have not been got cancelled through DGFT authorities. Further, DGFT authorities have clarified that the DEPB scrip are valid for exports made prior to 27.1.2006. Therefore, they do not agree with the findings of the Commissioner that the scrip are invalid. As valid DEPB scrip have been used for import of the goods, the Tribunal do not find any reason for demand of duty or confiscation of the goods, or imposition of penalties.  In view of the above, the impugned orders are set aside and appeals are allowed with consequential relief as per law.
 
Decision: -Appeals allowed with consequential relief.

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