Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1064

Order travelling beyond four walls of Show cause notice-not sustainable

Case: M/s Apotex Pharmachem India Pvt Ltd v/s Commissioner of Service Tax, Bangalore
 
Citation: 2011-TIOL-150-CESTAT-BANG
 
Issue:- The Adjudication Authority should confine themselves to the allegations made in show cause notice.
 
Brief Facts:- Appellant are 100% EOU engaged in Scientific Testing and Consultancy Services. They applied for refund of unutilised cenvat credit of service tax paid on input services under Rule 5 readwith Notification No. 5/2006-CE (NT) dated 14.03.2006.
 
Show cause notice was issued and the Adjudicating Authority rejected the refund claim on the ground of limitation and also on the ground of non-production of evidences. The Commissioner (A) upheld the order of the Adjudicating Authority.
 
Hence, appellant is before the Tribunal.
 
Appellant’s Contentions:- It is contended that the show cause notice was issued to the appellant for not enclosing the documents alongwith the refund claim and that was the only ground which has been made out in show cause notice, directing the appellant to show cause notice as to why the refund claim should not be rejected. It is submitted that the appellant had filed all the required documents as directed in the show cause notice but the Adjudicating Authority has gone beyond the show cause notice and has rejected the refund claim on the ground of time bar and also invoking the provisions of sub-rule (1) of Rule 4A of the STR, 1994.
 
It was submitted that they had taken this specific plea before the Commissioner (A) but he has not addressed the said plea. It was submitted that even the Commissioner (A) has gone beyond the allegations made in the show cause notice and hence, the order needs to be set aside. It was submitted that the retrospective amendment in Notification No. 05/2006-CE (NT) in the Finance Act, 2010 would be applicable in this case and refund of service tax credit taken on the input services cannot be denied to them, as there is no dispute regarding the eligibility to the Cenvat credit on the input services received by the appellant.
 
Reliance was placed on CST, Delhi v/s Convergys India Pvt Ltd [2009 (16) STR 198 (Tri-Del)], Capiq Engineering Pvt Ltd v/s CCE, Vadodara [2009 (245) ELT 186 (771-Ahmd), Lason India Pvt Ltd v/s CST, Chennai [2010-TIOL-1967-CESTAT-AHM], STI India Ltd v/s CC&CE, Indore [2009 (236) ELT 248 (MP)], Global Energy Food Industries v/s CCE, Ahmedabad [2010-TIOL-337-CESTAT-AHM] andRangdhara Polymers v/s CCE [2010-TIOL-518-CESTAT-AHM].
 
Respondent’s Contentions:- Revenue contended that show cause notice itself lays down a ground for co-relation of input services with export services and that would indicate that there was an allegation in the show cause notice that input services are not directly used for export services. Reliance was placed on following cases which would clearly indicate that eligibility to Cenvat credit of service tax paid needs to be gone into before deciding the refund due to the assessee: 

  • Vikram Ispat v/s CCE, Aurangabad [2009-TIOL-997-CESTAT-MUM]
  • Maruti Suzuki Ltd v/s CCE, Delhi-III [2009-TIOL-94-SC-CX]
  • Chemplast Sanmar Ltd v/s CCE, Salem [2010-TIOL-180-CESTAT-MAD]
  • CCE, Nagpur v/s Manikgarh Cement Works [2009-TIOL-2059-CESTAT-MUM]
  • Madras Cements Ltd v/s CCE [2010 (254) ELT 3 (SC)]
  • KBACE Tech Pvt Ltd v/s CCE & ST, Bangalore [2010-TIOL-564-CESTAT-BANG]

Reasoning of Judgment:- The Tribunal noted that appellant, a 100% EOU, is not providing any services in India. It was held that as per Rule 5 of CCR, he was eligible to claim refund of cenvat credit availed by him on the input services.
 
It was recorded that Notification No. 5/2006-CE(NT) has been retrospectively amended by the Finance Act, 2010, which would indicate that the assessee are eligible for refund of the Cenvat credit on input or output services, which are “used for” providing output services, which has been exported, subject to safeguards and conditions, limitations set out in the Appendix to the Notification.
 
The Tribunal noted that this aspect is not considered by the Lower Authorities. It was also found that the show cause notice was issued for rejection of refund claim but both the Authorities below have not addressed themselves within the allegations mentioned in the show cause notice. It was held that it is settled law that quasi-judicial authorities should confine their findings and conclusions to the allegations made in the show cause notice after considering the defence put up by the assessee on such allegations.
 
It was noted that the Commissioner (A) had recorded a finding that the appellant had not produced any evidence regarding the claim of the refund. But from the record, it is clear that appellant had produced enormous evidences regarding the services received by him and on which service tax has been paid and the credit has been availed. It is not for the Tribunal to go into the factual matrix of the case and come to any conclusion whether the evidence was correct or not, which would be better left to the adjudicating authority.
 
Matter remanded for re-consideration of factual matrix and the retrospective amendment carried out to Notification No. 05/2006-CE (NT) without expressing any opinion on merits of the case. Impugned orders set aside.
 
Decision:- Appeal disposed of accordingly. 

********

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