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 Laws/2012-13/1079

Stay order challenged on not following decision of Co-ordinate bench - whether can be entertained?

Case: PICASSO OVERSEAS VERSUS CESTAT, CHENNAI
 
Citation: 2012 (275) ELT 185 (MAD)
 
Issue:- Duty payment on final assessment demanded – appeal before the Tribunal – stay order of pre-deposit challenged that judgment of Co-ordinate bench not followed – petition rejected by holding that Tribunal had considered the said judgment. 
 
Brief Facts:- Petitioner was assessed provisionally on the basis of investigation done by the Designated Authority with reference to the levy of anti-dumping duty. Petitioner executed a bond for the provisional assessment as per direction of Third Respondent and cleared the goods. Subsequently on the basis of Notification No. 138/2002, a final demand was raised for a sum of Rs. 2,73,31,320/- for the three import allowed clearance provisionally.
 
Aggrieved by this, Petitioner filled appeal before the second respondent. The second respondent without observing principles of natural justice dismissed the appeal filed by petitioner.
 
Petitioner challenged the said order before the Tribunal, the first Respondent herein. The Tribunal by order dated 13.03.2006 directed the second respondent to pass fresh order. In the course of the appeal before the second respondent the Petitioner was directed to pay 75% of the demanded duty. The Petitioner filed modification petition. However the second respondent dismissed the appeal filed by the Petitioner by order dated 20.06.2006 stating that the petitioner firm failed to comply with the interim direction for pre deposit of the duty.
 
Once again petitioner approached the Tribunal. The Tribunal by order dated 4.01.2007 [2008 (231) E.L.T. 293 (Tri-Chennai)], directed the second Respondent to rehear the appeal and pass order.  As against the order passed by the second respondent dated 29.01.2009, petitioner approached the first respondent by way of the appeal and also filed an application for stay of recovery of the amount demanded.
 
The first respondent passed an order directing the Petitioner to comply with the pre-deposit of entire amount of duty for considering the appeal in terms of Section 129-E of the Custom Act, 1962.
 
The Petitioner has come before the High Court by filing Writ petition.

Petitioner’s Contention: - Petitioner contended that the issue is covered by the decision rendered by the Larger Bench of the Custom Tribunal. The Direction given by the Tribunal that the petitioner should deposit the entire duty amount for considering the appeal is not sustainable and against the order the principle of equity. The Petitioner further submit that the first respondent should have granted the waiver of pre-deposit of the entire amount of duty by following the decision of the Coordinate Bench in Mumbai in case of Harsh International v. Commissioner of Customs, Mumbai [2007 (217) E.L.T. 528, or in the alternative if the first respondent does not agree with the view of Coordinate Bench case, refer the matter to the Larger Bench for the Decision.
 
Petitioner pointed out that when the order had already been made by the Co-ordinate Bench on an identical circumstances, the first respondent should give exemption of duty and take up the appeal on merit. Hence, the Tribunal has failed to adhere to the Prima-facie case made out by the Petitioner and the Petitioner firm is entitled to get waiver of pre-deposit of the duty.
 
Petitioner referred to order passed in the CMA No. 341 of 2008 [2008(228) E.L.T.190 (Mad.)], that in the appeal preferred  by the Revenue as against the order of exemption, this Court objected the plea of the Revenue and directed the Commissioner (Appeal) to take up the appeal on merit. In the circumstances, Petitioner pleaded that the Tribunal be directed to take up the appeal on merit without insisting of the duty. Petitioner has placed reliance on the decision of the Allahabad High Court in ITC Limited v. Commissioner (Appeal) Cus. & C. Ex, Meerut-I [2005 (184) E.L.T. 347 wherein on the Petitioner showing a Prima-facie case, the High Court directed the Appellate Authority to pass order in application for stay/waiver afresh in accordance with law, if possible the Appellate Authority is directed to decide the appeal itself within  time. The High Court had granted stay in respect of recovery till a decision is taken in the application for Stay/recovery.
 
Reasoning of Judgment:- The High Court perused the order of the Tribunal and held that the same shows that considering the various issue raised by the petitioner and to the order of the Bombay Bench, the Tribunal pointed out that the balance of convenience is in favour of the Revenue and the financial hardship pleaded by the petitioner on the basis of the balance sheet of 2001-02 is not sufficient for considering the stay application.
 
The High Court noted that the Tribunal had also referred to the decision of the Apex Court reported in Assistant Collector of Central Excise, West Bengal V. Dunlop India Ltd and others [1985 (19) E.L.T. 22(SC) and Benara Valves Ltd. v. Commissioner of Central Excise 2006 (204) E.L.T. 513 (SC) as well as Vijay Prakash D.Mehta’s case [1989 (39) E.L.T. 178 (SC) to direct the Petitioner to deposit the entire Anti-Dumping Duty within a period of eight week from the date of hearing  i.e. on 7-9-2009 and subject to the compliance thereof, the appeal of Petitioner should be taken up.
 
The High Court held that the decision relied upon cannot be applied straightaway to this case on hand. The mere fact that the Tribunal has not accepted the plea of the Petitioner as regard binding character of the Co-ordinate Bench does not means that the Tribunal had not considered the said contention. The High Court did not find any justification in the submission of Petitioner that the impugned order has to be set aside as the issue is covered by the decision of the Co-ordinate Bench. Hence no fault can be found on discretion exercised by the Tribunal. However Petitioner submitted that considering their financial difficulties the order to dispense with the payment be granted. While the financial difficulties projected by the petitioner may be one of the ground for considering the case of petitioner, yet for grant of relief for the Petitioner, considering the various fact of this case, interest of justice demand the petitioner to direct the deposit of Rs 75 lakhs within a period of eight weeks. After payment is made, the Tribunal be directed to take up the appeal and dispose of the same within a period of four weeks thereon without insisting of future payments.
 
Decision:- Petition disposed off.

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