Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3438

Refund of duty in case of Unjust Enrichment
Case-MICHIGAN ENGINEERS PVT. LTD. Versus  COMMISSIONER OF C. E., CUS. & S.T., DAMAN
 
Citation- 2017 (345) E.L.T. 271 (Tri. - Ahmd.)
 
Brief Facts- The facts of the case, in brief, are that the appellants have sent duty paid Steel Bars and sent the same to M/s. PSL Corrosion Controls Ltd. (M/s. PSL) to get it epoxy coated on job work basis. After necessary coating, M/s. PSL returned the said coated bars on payment of Excise duty on the value, which included cost of the bar and conversion charges (coating charge) under protest. The matter was litigated before the Tribunal about the classification and dutiability of the said coated bars. The issue was decided in favour of the assessee holding that the process of coating undertaken by M/s. PSL (job worker) does not result into manufacture of excisable goods. Consequently, all these appellants who had sent the materials for job work, filed refund claims of the duty ultimately paid by them, which initially M/s. PSL Ltd. discharged at the time of clearance of the same. Show cause notice was issued to the respective appellants directing them to produce documents/evidences in establishing the fact that the amount of duty has not been passed on to their customers as required under the provisions of Section 11B(2)(e) of Central Excise Act, 1944 to be eligible to the refund. On adjudication, the demands were rejected on the ground of time-bar without adjudicating the issue of unjust enrichment. Aggrieved by the said order, the appellants preferred appeals before the ld. Commissioner (Appeals), who in turn, observed that though the refunds are filed within time limit but the appellants had failed to establish that the incidence of duty has not been passed to their customers and accordingly rejected the appeals. Hence, the present appeals.
 
Appellant’s Contention- The ld. Advocate, Shri Prakash Shah, for the appellant submits that all necessary evidences were placed before the authorities below in establishing the fact that the amount claimed as refund has not been passed on to their customers or any other person. It is his grievance that the documents were not analyzed in detail by the ld. Commissioner (Appeals) but erroneously observed that the documents produced were not sufficient in establishing the fact of non-passing of incidence of duty to the customers.
 
Respondent’s Contention- Per contra,the ld. AR for the Revenue reiterated the findings of the ld. Commissioner (Appeals). He submits that the documents which the appellants enclosed along with the appeal were not before the ld. Commissioner (Appeals). However, he has no objection in remanding the matter for verification of the documents.
 
Reasoning of Judgement- The Hon’ble authority find that the show cause notice was issued to the respective appellants directing them to produce evidences to show that the incidence of duty has not been passed on to the customers or any other person as required under Sec. 11B(2)(e) of CEA, 1944. Even though the ld. Advocate for the appellant claims that all evidences necessary to show that incidence of duty paid has not been passed on were presented before the authorities below, however, findings against the documents/evidences had not been recorded by either of them. I find that the ld. Commissioner (Appeals) in his order observed that the documents filed by them were not sufficient to establish the claim. Also, the Adjudicating Authority nowhere discussed in his order after analysis of evidences about the fact of passing of the incidence of duty to the customers or otherwise. In nut shell, both the authorities had not addressed the issue after examining the evidences/documents produced by the appellant’s along with their refund claim, so as to establish the fact that the incidence of duty has not been passed on to the customers. Therefore, in the interest of justice, it is prudent to remand the matter to the Adjudicating Authority to analyse all evidences on record and the evidences/documents that would be placed so as to establish their case and to record detailed findings on the said evidence as to whether the appellants had passed the incidence of duty to any other persons including their customers or otherwise. The above appeals are remanded for the limited purpose of examining the issue of unjust enrichment. Appeals are allowed by way of remand.
 
Decision- Matter Remanded.
Comment- The gist of the case is that the appellant who paid duty on non manufacturing activity is eligible for refund under section 11B of Central Excise act, 1944 only when the burden of duty has not been passed to customers. Unjust enrichment means when one person is enriched at the expense of another. Hence the matter is remanded by the authority for examining the issue of unjust enrichment.
 
Prepared by- Akshit Bhandari
 
 
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