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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/CASE LAW/2015-16/2845

Ingredients of fraud, suppression necessary to impose penalty under section 11AC.

Case:-COMMISSIONER OF C. EX., THANE-II VERSUS UNITED RUBBER INDS. (I) P. LTD.

Citation:-2014 (308) E.L.T. 724 (Tri. - Mumbai)

Brief Facts:-The Revenue is in appeal against the impugned order for dropping the penalty against the respondent under Rule 25 of the Central Excise Rules, 2002.The brief facts of the case are that on four occasions the respondent could not pay duty in time but they on their own paid the duty along with interest for the period they defaulted. Later on, a show cause notice came to be issued for imposition of penalty under Rule 25 of Central Excise Rules, 2002. The adjudicating authority confirmed the penalty of 30% of the duty involved. On appeal before the Commissioner (Appeals) he dropped the penalty on the premise that the provisions of Section 11AC of the Central Excise Act, 1944 were not invoked in the facts of the case which is prime condition for imposition of penalty. Aggrieved from the said order, Revenue is before Tribunal.

Appellants Contention:-Ld. AR submits that as respondent has defaulted the payment on four occasions, therefore they are habitual offenders and penalty under Rule 25 ibid is to be imposed. In the alternative, he submits that penalty under Rule 27 ibid could be imposed as per the decision of the Hon’ble High Court of Gujarat in the case of Saurashtra Cement Ltd.- 2010 (260) E.L.T. 71 (Guj.).

Respondents Contentions:-Heard the ld. AR. Perused the impugned order.

Reasoning Of Judgement:-The tribunal find that the ld. Commissioner (Appeals) dropped the penalty on the premise that provisions of Section 11AC of the Act have not been invoked. There is no finding of the lower authorities that the respondent has not paid the duty in time by way of fraud, collusion, misstatement, suppression of fact or contravention of provisions of Act/Rules with an intend to evade payment of duty, to invoke the provisions of Section 11AC of the Act. When these findings are not there, therefore the provisions of Rule 25 cannot be invoked. Further, the case law relied upon by the ld. AR for imposition of penalty under Rule 27 ibid relevant to the facts of this case. As in that case, the lower authorities imposed the penalty under Rule 25 ibid. But in this case, the penalty under Rule 25 ibid is dropped. Further, on perusal of the record, the tribunal find that there is no prayer in the appeal to impose penalty under Rule 27 ibid. Therefore, at this stage, the prayer for imposition of penalty under Rule 27 cannot be accepted. In these terms, they do not find any infirmity in the impugned order; the same is upheld. Appeal of the revenue is dismissed. Cross-objection is also disposed of in the above terms.

Decision:- Appeal dismissed.

Comment:- The gist of the case is that as the assessee have paid the duty along with the interest on his own account before issue of SCN and as such delay in payment of duty was not because of reason of fraud, collusion, misstatement, suppression of facts; henceforth the penalty provisions are not attracted.

Prepared By:- Neelam Jain
 

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