Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Law/2013-14/2010

Extended period of limitation cannot be invoked when non-payment of duty was due to divergent views on the issue.

Case:-COMMISSIONER OF CENTRAL EXCISE, CUS. & S.T., COIMBATORE Vs KAY KAY PRESS METAL CORPORATION
 
Citation:-2013 (297) E.L.T. 40 (Guj.)


Brief Facts:-The assessee was engaged in manufacturing of fabricated iron and steel structures. The unit used to undertake processes such as cutting, bending, punching with the help of machines available in the factory. The Excise Officers visited the factory premises on 31.3.2000 on the basis of specific information that respondent had been manufacturing the excisable goods without obtaining registration and had thereby indulged into the evasion of duty. On the basis of material gathered during visit, the commissioner of Excise issued show cause notice in March, 2003 calling upon the respondent as to why the excise duty to the tune of Rs. 41,04,217/- should not be levied on the finished goods which were allegedly cleared during the period 1998-1999 and 1999-2000. The assessee had already paid Rs. 1 lakh which amount was accounted for. The assessee was also called upon in the show cause notice for explaining as to why the penalty and interest should not levied. The said show cause notice culminated into order dated 20-5-2004 by the adjudicating authority who confirmed the demand of excise duty for Rs. 41,04,217/-. It also imposed the Penalty of equivalent amount under section 11AC of the central Excise Act, 1944 as well as the penalty of Rs. 5,00,000/- and Rs. 10000/- and further ordered for payment of interest.

The assessee preferred an appeal before the appellate Tribunal (Appeals). The tribunal considered that show cause notice was issued in March, 2003, which was for the period 1998-2000 and thus it was time barred, the department had invoked the extended period as  per the proviso to sec. 11 A of the Act on the ground that there was suppression and misstatement by the assessee. The Tribunal did not approve the action on the part of the department in invoking the extended period. Consequently, the appeal was allowed on limitation. Hence, the revenue department is in appeal.
 
Appellant contentions:-The appeal has been filed by the revenue department wherein following question of law has been framed to be answered by the High Court:-

“Whether the Tribunal below committed substantial error of law in allowing the Appeal filed by the assessee on the question of limitation on the ground of divergence of views at the relevant point of time although according to the law of precedent, even there was divergence of views, it is the duty of the assessee to follow the one which is binding as a precedent.”
 
Respondent contentions:-The respondent prayed for confirming the order passed by the Tribunal on the contention that the same is correct, legal and proper. The respondent contested the demand primarily on the ground of limitation as during the material time, divergent views were prevalent on the issue.

Reasoning of Judgment:- The High Court observed thatwith the following observations, the Tribunal dismissed the appeal of the department.

“….. The law on the issue is clear, i.e. to the effect that when there are views, many of which are in favour of the assessee holding the field, no suppression or mis-statement can be attributed to assessee, to entertain the same belief. As admittedly, in the present case, judgment prior to larger bench in the case of Mahindra & Mahindra Ltd, were lying that the processes allegedly adopted by the appellant did not amount to manufacture, we are of the view that the demand raise beyond the period of limitation, by invoking extended period, is barred. As such, irrespective the said activity or not, the demand is required to be quashed on the above issue itself. Ld. SDR appearing for the Revenue has placed on record the written submissions, which we find are mainly dealing with issues other than limitation.”

The Tribunal was justified in recording the aforesaid findings. In the facts of the case, it was not possible to ascribed any willful suppression or mis-statement on the part of the assessee for not paying excise duty because during the period in question, various decisions of the Tribunal were to the effect that the activity of cutting, bending, bunching of plats or channels in which the assessee was engaged, did not amount to manufacturing activity. In Continental Foundation Jt. Venture v. CCE, Chandigarh, 2007 (216)E.L.T. 177 (S.C.), Apex Court observed that when there was bona fide doubt as to non-excisability of the goods due to divergent views of the Hon’ble Supreme Court, the extended period of 5 years cannot be invoked. Mere failure or negligence in not taking license or not paying duty, is not sufficient for invoking extended period.
 
In the facts of the present case, it cannot be said that the conduct of the assessee was not bona fide. When the activity undertaken by it was not treated as manufacture, it would not have been expected to pay the excise duty. In order to show suppression or misstatement on the part of the assessee, a positive act has to be established. In view of the above, no error was committed by the tribunal in dismissing the appeal. It was not possible to countenance the contention of the learned counsel for the appellant that there was a suppression of facts and payment of duty was intentionally evaded by the assessee. For the foregoing reasons, the question formulated is accordingly answered in negative and in favour of the assessee. The appeal is dismissed being devoid of any merit as discussed above.

Decision:-Appeal Dismissed.

Comment:-The analogy drawn from this case is that when there are divergent decisions on a particular issue, suppression or wilful misstatement cannot be affirmed and so the extended period of limitation cannot be invoked. Moreover, it is also observed very often that the appeal is allowed solely on the grounds of limitation as in the present case.

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