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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.  

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PJ/Case Laws/2010-11/1164

Entitlement to more beneficial exemption to the assessee

Case: - M/s Karanja Industries Bidar v/s Commissioner of Central Excise, Belgaum
 
Citation: - 2010-TIOL-100-CESTAT-BANG
 
Issue:- Whether benefit of lesser amount of duty under Sl. No. 86A of Notification No. 48/2004 is available when assessee has previously availed benefit under Sl. No. 86 of said Notification?
 
Brief Facts:- Appellants during the year 2004-05 had availed concessional rate of duty @ 8% as stated in Sl. no. 86 of the Notification No. 6/2002-CE dated 1.3.2002 for the clearance of Kraft paper and thereafter paid duty @ 16% upto 9.9.2004. From 10.9.2004 onwards appellant started paying duty @ 12% by availing benefit of Sl. no. 86A read with condition no. 14A of Notification No. 6/2002-CE which was introduced by Notification No. 48/2004 dated 10.9.2004.
 
Departmental was of the view that the appellant were not entitled to avail the benefit of Sl. no. 86A as they have already availed the benefit under Sl. no. 86. Show cause notice was issued demanding deferential duty.
 
The Adjudicating Authority confirmed the demand with interest and imposed penalties under Section 11AC. In appeal, the Commissioner (Appeal) upheld the impugned order but set aside the penalty imposed by the Adjudicating Authority.
 
Appellant have filed further appeal before the Tribunal. 
 
Appellant’s Contention:- Appellant relied upon the entries in Sl No. 86 and 86A of the Notification No. 6/2002 and contended that there is no dispute that the appellants have fulfilled the conditions stipulated in the said entries. It was submitted that the benefit of exemption of duty under Sl. no. 86A of the said Notification has been sought to be denied by Revenue only on the ground that the appellant had availed the benefit under Sl. no. 86. It was further submitted that the conditions. 14 and 14A did not predict any such restriction.
 
Appellant also submitted that the issue is squarely covered by decision of High Court in West Coast Paper Mills Ltd v/s Union of India [2007 (212) ELT 305 (Kar.)].
 
Respondent’s Contention:- Revenue argued that once the appellant has availed the benefit of exemption under Sl. No. 86 of the Notification No. 6/2002, which would apply to the first clearance upto 3500 MTs of kraft paper, the appellant would not be entitled for any other benefit of exemption as once the exemption has been availed, there will be no exemption available to them. Further they submitted that condition 14 may be met by the appellant, for the first clearance of 3500 MTs of paper and paperboard or articles made therefrom.
 
Reasoning of Judgment:- The Tribunal held that from a perusal of conditions specified under the Sl. no. 86 & 86A it is clear that benefit of these entries can be availed by the assessee if he fulfils the conditions as mentioned. In case of fulfilment of conditions, the Tribunal held that the appellant claim for the benefit of lesser rate of duty of 12% as mentioned under Sl. no. 86A of the Notification no. 6/2002, cannot be denied by the Revenue as conditions no. 14A does not put any restriction on the availment of such benefit if the assessee had availed the benefit under Sl. no. 86. The only condition prescribed was that the assessee should not avail the SSI benefits as indicated in Notification No. 8/2003 and/or 9/2003, which was not the case in this appeal. Relying upon the judgment in West Coast Paper Mills Ltd v/s Union of India and the provisions of the notification, impugned orders are not sustainable and therefore set aside. 
 
Decision:- Appeal allowed with consequential relief. 

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