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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 Laws/2011-12/1193

Maintaniability of allegation of Wilful Suppression of Facts

Case: Commissioner of Central Excise, Mumbai v/s S Narendra Kumar & Co

Citation: 2011-TIOL-52-SC-CX

Issue:- Classification list submitted and approved from the Department from time to time and no objection raised – suppression of facts cannot be alleged.
 
Brief Facts:- Respondent-assessee were manufacturers of Jaljira powder. They were filing classification declaration from time to time i.e. from 1994 to 1999 under heading 0903.10 and claiming exemption from payment of excise duty. The said declarations were approved by the Department from time to time and therefore, the said assessment had reached finality.
 
Thereafter, a circular was issued by the Board clarifying that Jaljira masala was not a spice but was essentially an edible preparation falling under Chapter 21. It was clarified that Jaljira was used as a drink in the water and therefore, fell under heading 2108.
 
Accordingly, Department issued show cause notice to the respondent-assessee demanding duty and alleging that there was willful suppression of facts. Extended period of limitation was invoked. The Commissioner in the impugned order held that there was suppression of facts and also clandestine removal or evasion od excise duty and therefore, respondent was liable for duty.
 
On appeal, the Tribunal set aside the impugned order by holding that the extended period of limitation is not available to the department. Hence, Revenue is in appeal before the Supreme Court.
 
Reasoning of Judgment:- The Supreme Court held that the decision given in Anand Nishikawa Co. Ltd v/s Commissioner of Central Excise, Meerut [2005 (188) ELT 149] is squarely applicable to the facts of the present case. It was held therein that when the classification list continued to have been approved regularly by the department, it could not be said that the manufacturer was guilty of “suppression of facts”. Reliance was also placed on O. K. Play (India) Ltd v/s Commissioner of Central Excise, Delhi-III, Gurgaon[2005-TIOL-18-SC-CX-LB] wherein similar decision was given. It was held that the ratio given in both the above cases was squarely applicable to the facts of the present case.
 
It was held therein that the classifications were duly approved by the Department from time to time. The Department could have called upon the assessee to produce their catalogues in case there was some confusion or doubt over the product of the respondent. No infirmity in decision of Tribunal. There was no willful suppression on the part of assessee enabling the department to invoke the extended period of limitation under the proviso to Section 11(A) of the CEA, 1944.
 
Decision:- Appeal dismissed.
 
Comment:- The allegation of “willful suppression” has to be proved by the department. The department normally invokes such an allegation in each and every case and in majority of cases, it is not proved. We have seen that the demands have been dropped on limitation in cases where all the facts are recorded in books of accounts and audit has come to know about the same from the same. But the department has changed the provision of Section 11AC and penalty can be invoked in such cases also. We have to wait and see whether the penalty can be imposed in such cases. 

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