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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/2014-15/2117

No time limit for filing writ petition for an action that is void ab initio.

Case:- M/s HIMGIRI ISPAT PVT LTD Vs THE CUSTOMS EXCISE AND SERVICE TAX AND OTHER
 
Citation:- 2014-TIOL-320-HC-UKHAND-CX
 
Brief facts:-A unit belonging to the assessee was mortgaged in favour of U.P. State Financial Corporation . The assessee failed to honour its commitments to U.P. State Financial Corporation. Accordingly, U.P. State Financial Corporation took over the unit of the assessee and, thereafter, by public auction, sold the same to the appellant in Central Excise Appeal No. 5 of 2009 and petitioner in Writ Petition (MS) No. 649 of 2009. After the unit was sold, the Excise Department contended that the assessee failed to discharge its dues due and owing to the Excise Department and since the appellant is the successor in interest of the assessee, it is liable to pay the same. The appellant denied its liability in that regard. Appellant approached the Appellate Authority under the Central Excise Act assailing the decision of the Assessing Officer to the effect that the appellant is obliged to discharge the said debts of the assessee. The Appellate Authority, according to us, correctly held that the appellant has come after lapse of time and the Statute does not authorize the Appellate Authority to condone such delay. On that ground, the Appeal was rejected. Appellant, then, approached the Tribunal. The Tribunal also held that there is no scope of interference, inasmuch as, the Appeal was so belated that there was no authority to condone the delay in preferring the Appeal. Aggrieved thereby, the present Central Excise Appeal has been preferred. At the same time, appellant has filed a writ petition challenging the selfsame order of the Assessing Officer.
 
 
Appellant’s contentions:- The appellant pleaded to grant relief as the action of recovery of excise dues was non est from the beginning.
 
Respondent’s contentions:-Learned counsel for the Excise Department has contended that the writ petition is not maintainable, inasmuch as, in the writ petition, appellant has challenged the recovery proceedings stemming out from the selfsame order passed by the Assessing Officer.
 
Reasoning of judgment:-The High Court was ofthe view that the Central Excise Appeal is not interferable , inasmuch as, the reason for which the Appellate Tribunal rejected the Appeal is sound enough. The Appeal is, accordingly, dismissed.
 
While right to prefer Appeal is statutory, the same can be exercised to the extent Statute has granted. While a time limit has been fixed for preferring the Appeal, upon expiry of that period, the right to prefer Appeal stands extinguished. If the Appellate Authority has been authorized to condone delay of a limited period as prescribed, the same itself prescribes that he has no authority to condone delay beyond the limit so prescribed. However, the right exercised by a citizen under Article 226 of the Constitution of India is not a statutory right, but is a constitutional right. If the Constitution has limited that right, of course, then the right has to be exercised within that limit. The fact remains that the Constitution, while conferring the right under Article 226 of the Constitution, did not fetter such right by any limitation whatsoever. In those circumstances, there cannot be a contention that the writ petition is not maintainable because it is belated. If the action complained of is non est from the day one, the same can be challenged even after 100 years. The question is, whether the action complained of in the writ petition is non est or not? The Central Excise Act provides the mechanism of recovery of excise duties. It permits recovery of such duties from the merchandise of the assessee in his control. It does not permit even recovery from those merchandise, which have gone to the buyers of the assessee. Upon failure to recover the same, the Act permits the dues to be recovered as land revenue. The word ‘land revenue' connotes revenue, which is lawfully recoverable from the person, who is liable to pay the same for his properties. The fact remains that the property in question is not of the assessee, but of the appellant / writ petitioner. Therefore, by taking measures available for recovery of land revenue, dues due and owing by the assessee cannot be recovered from the properties of the appellant, who is a bona fide purchaser in auction.
 
Learned counsel for the respondents has contended that in a previous round of litigation, a Division Bench of this Court in a similar writ petition had observed that the appellant is required to take steps in the Appeal by approaching the Appellate Authority in the Department and, accordingly, a selfsame writ petition is not maintainable. The fact remains that the approach, though belated, was not adjudicated at all by the Authorities, to whom, this Court directed the appellant to approach. In law, a person cannot be remediless, particularly in respect of a matter, which is void ab initio from the day one. We, accordingly, allow the writ petition and quash all steps taken for recovery of the dues of the assessee from the assets and properties of the appellant / writ petitioner.
 
Decision:- Writ petition allowed.
 
Comment:- The gist of the case is that a person cannot be remediless, particularly in respect of a matter which is void ad initio from the day one. As no recovery of excise dues can be made from a bonafide purchaser of property in an auction, the order of recovery of excise dues passed by the excise officers was void ab initio and was quashed in the writ petition. 

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