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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/2011-12/1569

Exempted goods - whether become excisable if duty paid by mistake and refund of duty not claimed?

Case:M/s BONANZA ENGINEERING & CHEMICAL PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE
 
Citation: 2012-TIOL-25-SC-CX
 
Issue:- Excise duty paid on exempted goods – whether can be treated as excisable goods for the purpose of computation of aggregate value of clearances under Notification No.175 /86-CE dated 1.3.1986?
 
Brief fact: - The Appellant is the manufacture of the goods falling under Chapter Heading 32 and 84 of the first Schedule to the Central Excise Tariff Act, 1985. The description of goods under those chapters for the purpose of disposal of this appeal may not be necessary since we are called upon in this appeal to give purposive construction the language employed in the Notification No.175/86 –CE dated 1.3.1986 and the Notification No. 111/88-CE dated 1.3.1988. A bare perusal of Sub-Clause (a) of Clause 1 of the Notification No. 175/86-CE demonstrate that the goods enumerated in the Schedule to the Notification are exempted from the payment of Central Excise Duty for the First clearance of the specified goods upto the aggregate value not exceeding  Rs 30 Lacs. Clause (a) (ii) provides that such clearance should not exceed rupees twenty Lacs in any one of the Chapter. The Notification also say that for the purpose of computing  the aggregate value of clearance under the said Notification, the value of clearance of any excisable goods which are exempted from the whole of duty by any other Notification shall not be taken into account. By the Notification No. 111/88-CE dated 1.3.1988 the Central government exempts the goods of the description specified in column 3 of the table appended to the notification, from the whole of the excise duty leviable on the said goods. Therefore it is clear that the assessee in the instant case is a manufacture of the goods falling under both Chapter 32 and 84 of the Act. The Assessee has filed its declaration before the Adjudicating authority, inter alia, informing him that the assessee would be claiming exemption from the payment of excise duty for a sum of Rs 20 Lacs under Chapter Heading 32 of the Act and upto Rs. 10 Lacs under Chapter Heading 84 of the Act. The Adjudicating Authority has issued two Show Cause Notice dated 26.11.1992 and 20.01.1993, respectively. The First Show Cause Notice is for the period   20.08.1992 to 31.10.1992 and the second Show Cause pertains to the period 01.11.1992 to 31.12.1992. The duty effect of both the Notification does not exceed beyond RS 2.3 Lacs. In the Show-Cause-Notices, the Assessing Authority had stated that the assessee has exceeded the aggregate value of clearance of Rs 30 Lacs as specified in the Notification dated 1.3.1986 and therefore other clearance made by him would attract the levy of duty. It was also mentioned in the notice that since the assessee had paid the duty on the excess clearance of more than Rs 30 Lacs, the Assessee is liable to pay duty with penalty. In reply to the said show cause notice, the assessee had brought to the notice of the adjudicating authority that it is a manufacture of items which would fall under chapter heading 84 of the Act and, therefore, the Notification dated 1.3.1988 require to be applied  and if it is applied the good enumerated in the table appended to the Notification are exempted from the levy of duty. Therefore, the excise duty paid by the assessee under the aforesaid notification cannot be added for the purpose of computing the aggregate value, while granting benefit of the Notification No.175 /86-CE dated 1.3.1986. The stand of the assessee was, initially, accepted by the adjudicating authority (Assistant Commissioner) vide his Order dated 12.3.1993. However, the Collector of Central Excise (Judicial) in his Review Order dated 17.2.1994 found that the Order-in-Original dated 12.3.1993 is legally incorrect and is passed by the authority which is incompetent on account of monetary limits. He further directed the Assistant Collector to file an appeal before the Collector, Central Excise (Appeals) for appropriate remedy. On Review Appeal, the Collector, Central Excise (Appeals) vide its order dated 2.6.1994 had set aside the Order-In-original and remanded the matter to the competent adjudicating authority (Deputy Commissioner) for De-novo proceedings. Thereafter, the adjudicating authority vide Order Dated 7.1.2000 while rejecting the assessee’s claim had confirmed the duty demanded and also imposed the penalty. Aggrieved by the said order, the assessee had carried the matter in appeal before the Tribunal. The Tribunal rejects the claim only on the ground that the assessee has not claimed the refund of the duty paid for the clearances of the goods falling under Chapter heading 84 of the Tariff Act, and therefore, the assessee is not entitled to avail the benefit of the exemption Notification dated 1.3.1986. The sum and substance of the reasoning of the Tribunal appears that merely because the assessee has paid the excess duty on those items which he was not supposed to pay in view of the exemption notification dated 1.3.1988 and merely because the assessee has not claimed the refund of the excess duty paid, that amount paid by him under the Notification dated 1.3.1988 requires to be taken for the purpose of computing the aggregate value of the clearances under the notification No.175 /86-CE.
 
Reasoning of Judgment: - The Supreme Court held that merely because the assessee, maybe, by mistake pays duty on the goods which are exempted from such payment, does not mean that the goods would become goods liable for duty under the Act. 'Secondly, merely because the assessee has not claimed any refund on the duty paid by him would not come in the way of claiming benefit of the Notification No.175 /86-CE dated 1.3.86. The Supreme Court allow this appeal, set aside the judgments and orders passed by the Tribunal and the adjudicating authority. They direct the adjudicating authority to apply the Notification dated 1.3.86 in the assessee's case without taking into consideration the excess duty paid by the assessee under the Notification dated 1.3.1988.  
 
Decision: -Appeal allowed

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