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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/2011-12/1527

Refund of Excess Duty paid - No appeal against assessed Bill of Entry - whether permissible

Case: - AMAN MEDICAL PRODUCTS LTD VS COMMISSIONER OF CUSTOMS, DELHI
 
Citation: - 2009-TIOL-566-HC-DEL-CUS
 
Issue-cum-Brief Facts:- Whether an assessee who is entitled for concessional rate of duty pays the higher duty by inadvertence is not entitled to grant of refund of excess duty paid unless he had filed an appeal against the order by which he had deposited the duty on filing of the bill of entry?
 
Whether non-filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the revenue at the time of payment of duty will deprive the importer of his right to file refund claim under section 27 of the Customs Act, 1962?
 
Appellant’s Contention:- The Assessee contend that in the present case no ‘order’ has been passed because the assessee simply filed the bill of entry and paid the custom duty in mistake  without taking the benefit of the notification No. 6/2002 dated 1.03.2002 due to ignorance. The Customs Excise and Service Tax Appellate  Tribunal (CESTAT) has passed an order holding that in pursuance to an order of assessment necessarily implies that a payment of duty must be pursuant to an assessment order before a refund in appeal can be asked for  under section 27 of the  Customs Act, 1962 (hereinafter referred to as ‘the Act’)
 
Respondent’s Contention:- The Tribunal has referred to the cases of CCE, Ltd. [2000(120) ELT 285] = (2002-TI0L-208-SC-CX) and Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (TIOL-78-SC-CUS] . In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and party did not chose to exercise the statutory right of appeal,  it is not open to  party to question the correctness of the order of the adjucating authority subsequently by filing a claim for refund on the ground that the adjudicating authority  had committed an error in passing his order. These judgements will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case.
 
Reasoning  of Judgment:- The High Court referred to the language of Section 27 and noted that it is more than clear that the duty which is paid is not necessarily pursuant to order of assessment but can also be borne by him? Clause (i) & (ii) of Sub Section (1) of Section are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(1) (ii) is to cover those classes of case where the duty is paid  by a person without an order of assessment, i.e. in a case like the present where the assessee pay the duty  in ignorance of a notification which allows him concessional rate of  duty merely after filing a Bill of Entry. In fact such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27 (1) (i) of the Act because there is no contest or lis and hence no adversial assessment order. The Delhi High Court concluded that the refund claim of the appellant was maintainable under Section 27 of the Custom Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under section 27 of the Customs Act,1962 and which claim was fall under clause (ii) of sub section (1) of Section 27. The High Court accordingly set aside the impugned order dated 3.4.2008 of the CESTAT and uphold the order of the Commissioner of Customs Appeal dated 28.01.2005 and remand of the matter to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merit of the matter in accordance with law after providing due opportunity to the appellant
 
Decision:- Appeal allowed.

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