Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1223

Refund - applicability of principle of Unjust Enrichment

Case: Surya Coats Pvt. Ltd. v/s Commissioner of C. Ex., Ahmedabad 

Citation: 2010 (261) E.L.T. 379 (Tri.-Ahmd.)

Issue:- Whether provision made during financial year in which refund claim arose (on duty collected on issue of invoices), will not be eligible for refund? Merely making a provision in balance sheet can be considered as only factor for unjust enrichment? 

Brief Facts:- Appellants are engaged in the manufacture of paper roll and during the process of manufacturing paper and paper rolls, waste and scrap in the form of trimming and cuttings of paper arises for which there was no specific entry under the Schedule to the Central Excise Tariff Act, 1985. Appellants contended that such waste and scrap was non-excisable and they were clearing the same without payment of duty during the period April, 1995 to Mar., 2001. The Department was issuing periodical show cause notices during the whole period. Ultimately the matter reached the Tribunal and the Tribunal vide order dated 18-12-2006 [2007(210) E.L.T. 684 (Tri.-Ahmd.)] decided the issue in favour of the appellants. Thereafter, appellants filed refund claim for an amount of Rs. 18,46,852/- which was duly sanctioned by the Original Adjudicating Authority. On an appeal filed by the Department, Commissioner (Appeals) held that appellants are not eligible for refund of Rs. 6,96,292/- pertaining to the period 2000-2001 and directed that the same be credited with Consumer Welfare Fund.
 
Appellant’s Contention:- Learned advocate on behalf of the appellants submitted that Commissioner (Appeals) has allowed the appeal of the Department on the ground that appellant had made provision in their books of account for the amount demanded in the show cause notices for the financial year 2000-2001 and had charged the amount to the profit and loss account, he also observed that in respect of the demands prior to the year 2000-2001, the provision was made only in the 2000-2001, he relied on the decision of the Tribunal in the case of Shilp Gravures Limited - 2006 (206) E.L.T. 203 (Tri.-Del.) in support of his decision. Learned advocate submitted that appellant had given Chartered Accountant certificate in support of their contention that duty amount had not been collected and was submited that in the invoices duty amount was not collected separately. Further, it was submited that conclusion of the Commissioner in the impugned order that provision was made during the financial year in which the refund claim arose and therefore appellants are not eligible for refund is not correct.
 
Respondent’s Contention:- Learned SDR on the other hand relies on the decision in the case of Shilp Gravures Limited cited above and decision of the Tribunal in the case of United Spirits Limited - 2008 (228) E.L.T. 360 (Tri.-Mum.) in support of his contention that unjust enrichment is applicable even when the duty is deposited after issue of show cause notice or after issue of adjudication order.
 
Reasoning of Judgement:- Regarding the decisions of the Tribunal relied upon by the Commissioner (Appeals) and learned SDR, the Hon’ble Court find that both the decisions are not applicable to the facts of the case. In Shilp Gravures Limited case the appellants had paid excess amount of duty because of calculation error at the time of filing bill of entry. In that case reliance was placed on Solar Pesticides case [2000 (116) E.L.T. 401 (S.C.)] for sanctioning refund and subsequently the Hon’ble Supreme Court had held that even in the case of goods captively used, the unjust-enrichment aspect is required to be examined. Therefore, in Shilp Gravures Limited case the duty had been paid at the time of clearance of goods and liability had already been incurred. As regards the second case, United Spirit Limited, in this case also as seen from the facts of the case, seized goods were released on the basis of orders of Hon’ble Bombay High Court on payment of amount which was considered as security deposit for ensuring recovery of duty, fine and penalty which was likely to be imposed on the appellant as a consequence of adjudication. In this case also, the liability had already been incurred at the time of release of goods that too after taking the matter before the Hon’ble High Court. Further, it was found that merely making a provision in the balance sheet cannot be considered as only factor for unjust enrichment and it should be examined in the light of facts and circumstances of the case, which the Hon’ble court found in this case are in favour of the appellant.
 
Decision: - Appeal allowed.
 

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