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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.  

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PJ/Case Laws/2011-12/1537

ROM Application - allowability of

Case: COMMISSIONER OF CUSTOMS, BANGALORE v/s M/S. WIPRO LTD, (INFOTECH GROUP) Bangalore-560001
 
Citation: 2012-TIOL-63-HC-KAR-CUS
 
Issue:- Limitation – Rectification of Mistake Application – Limitation of 6 months applicable when Tribunal exercises suo-motu power.
 
Duty forgone under Notification No. 96/93-Cus dated 02.03.1993 – Liability to pay interest – when no condition regarding interest exists in Notification – ROM application to be allowed as error is apparent of face of record.
 
Brief Facts:- Assessee imported various components during the year 1994-95. The assessee claimed exemption from payment of duty under notification No. 96/93-Cus dated 02.03.1993. The assessee did not produce any documentary evidence showing that they have used the aforesaid components in manufacturing of certain items and the same have been exported. Therefore, proceedings were initiated against the assessee claiming duty foregone.
 
After hearing the assessee, the demand was confirmed by the Deputy Commissioner. Appeal preferred against the said order before the Commissioner (Appeals) came to be dismissed. The appeal to the Tribunal also met with the same fate.
 
Thereafter, an application was filed under Section 129B (2) of the Act for rectification of the mistake apparent from the record in respect to the final Order dated 31.07.2007. The mistake that was pointed out was that the notification No. 96/93 did not enable the revenue for payment of any interest in terms of the duty foregone under the said notification. Nor is there any provision under the Customs Act for the payment of any interest in terms of the duty foregone in notification no. 96/93. Therefore, the levy of interest as confirmed needs to be rectified.
 
The Tribunal passed the order rectifying the mistake of levying of interest. Aggrieved by the same, Revenue is in appeal before the High Court.
 
Appellant’s Contention:- Revenue contended that the Tribunal has virtually re-appreciated the entire material on record and has passed the order contrary to the original order which is not permissible while exercising the power under Section 129B(2) of the Act. Therefore the order requires to be set aside.
 
Reasoning of Judgment:- On the issue of sustainability of Tribunal’s order in respect of amendment made in Misc Order beyond the period of 6 months, the High Court noted that Tribunal held that in the case of SUNITADEVI SINGHANIA HOSPITAL TRUST Vs. UNION OF INDIA reported in 2009 (233) ELT 295 (SC) = 2008-TIOL-235-SC-CUS) as well as the Full Bench judgment in the case of JK TYRE AND INDUSTRIES LTD. Vs. ASSISTANT COMMISSIONER OF CENTRAL EXCISE, MYSORE-II reported in 2011 (266) ELT 163 (Kar) = 2011-TIOL-308-HC-KAR-CX-LB), where it has been held that the limitation of six months prescribed is applicable only if the Tribunal exercises suo moto power. The said period of limitation for disposal of proceedings for rectification is not applicable to application filed by the aggrieved party. In that view of the matter, the said substantial question of law is answered in favour of the assessee and against the revenue.
 
With regard to issue of sustainability of Tribunal’s order on the contention that erroneous fining is given, the High Court held that in the original order the Tribunal has categorically held that the assessee imported the components claiming benefit of exemption notification. Once the notification benefit is claimed, it is obligatory on the part of the assessee to fulfill the conditions of the exemption notification. When they produce the shipping bills as a proof to show that the imported components have been utilized in the manufacture of the goods which have been exported, there should be proper correlation. The vague statement that all the goods have been utilized for export or research purposes is not sufficient. It is obligatory on the part of the assessee to satisfy the Deputy Commissioner as to how these various components were issued for the manufacture of goods which were exported and also for R & D purposes. When the assessee is availing huge amount of duty exemption they cannot forego it very carelessly in their project. Therefore, the Tribunal held that the assessee has not taken serious efforts to comply with the customs procedure. The Tribunal did not find fault with the lower authorities for the confirmation of duty and interest. Therefore, it is clear that the Tribunal took note of the fact that the assessee imported various components claiming exemption under notification No.96/93, but did not discharge the export obligation to the satisfaction of the authorities. Therefore, the assessee is liable to pay duty foregone.
 
In the notification, admittedly it is not mentioned that any interest is payable on the duty foregone during the relevant period. Therefore, if only the Tribunal had carefully looked into the terms of the notification they would have realized in the notification that there is no liability to pay interest. Therefore, when it was pointed out, the Tribunal opened its eye and the said error is apparent from the face of the record. Therefore, exercising the power conferred under Section 129B of the Act, they have rectified the said error. It is not a case of reappreciation of the facts on record. By just looking into the notification and the order the error is apparent.
 
Decision:- Appeal dismissed.

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