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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/2010-11/1021

The Commissioner has power to convert the free shipping bill into drawback shipping bill?
Case: Essar Oil Ltd v/s Commissioner of Customs, Jamnagar
 
Citation: 2010 (259) ELT 295 (Tri-Ahmd)
 
Issue:- Whether the Commissioner has power to convert the free shipping bill into drawback shipping bill?
 
Brief Facts:- Appellants applied for conversion of free shipping bill into drawback shipping bills. The Commissioner rejected the appellant’s request. Appellants therefore approached the Tribunal. The Tribunal allowed the appeal. Against this, Revenue went in appeal before the High Court and High Court restored the appeal for passing of speaking order.
 
Hence, the matter is again before the Tribunal.
 
Appellant’s Contentions:- Appellant contended that the Commissioner has placed reliance on Board Circular no. 4/2004-Cus, dated 16.01.2004. Para 3.1 of the same states that power of Commissioner to grant exemption from observance of the provisions of Rule 12 (1) (a) for the purpose of availment of drawback shall apply only in respect of drawback claims pertaining to all industry rates of drawback and it would not apply to brand rate of duty drawback where rate is claimed in terms of Rule 6 or Rule 7 of Customs and Central Excise Duties Drawback Rules. It is submitted that the rule does not have any such restriction and therefore the reliance of the Commissioner on circular was misplaced.
 
It was submitted further that appellants had claimed drawback under all industry rates vide SL. No. 271002 but this was not allowed on the ground that the said entry is applicable only to supplies made by the DTA units to units under SEZ, thinking that no drawback is available, they filed free shipping bills but on approaching the directorate of drawback they were advised to go for brand rate procedure. It was submitted that the item exported was furnace oil which is a bulk cargo and therefore the Weighment is done in the presence of customs officers only. Thus, there cannot be any issue with regard to the quantum of export.   
 
Respondent’s Contentions:- Revenue contended that there is no provision in law for conversion of shipping bills. The Board Circular only clarified the legal position according to which the Commissioner can consider a free shipping bill as a drawback shipping bill. It was submitted that under Rule 12 of Drawback Rules, Commissioner is not converting the shipping bill but only exempting observance of certain procedures and thereafter giving direction to allow drawback. It was submitted that the Assistant Commissioner of Customs sanctioned drawback in respect of free ‘shipping bills’. Unlike all industry rates, the brand rate is not fixed by the Commissioner and therefore the clarification given by the Board that Commissioner cannot convert the shipping bill is correct.
 
Reasoning of Judgment:- The Tribunal held that the discussion in the Board Circular is entirely related to provisions of Rule 12 of Drawback Rules. As per the Circular Rule 12 empowers the Commissioner to condone non-observance of provisions of Rule 12 and allow drawback. It was held that the distinction made by Board between all industry rate shipping bills and brand rate shipping bills was not supported by provisions of Rule 12. The Commissioner is empowered to condone non-observance of procedure under Rule 12 irrespective of the claim for drawback on the basis of brand rate or all industry rates. The artificial distinction has been made only by the Board in the Circular and is not supported by law.
 
It was held that in the case of Gokuldas Images Pvt Ltd v/s CC, Bangalore [2008 (227) ELT 238 (Tri-Bang)] and Hero Cycles v/s CC, Shillong [2004 (171) ELT 342 (Tri-Del)], the brand rate shipping bills were not under consideration. It was observed that judicial discipline required that the Tribunal followed the decision in Hero Cycles Ltd unless a decision of superior authority was shown or the Tribunal disagrees with the decision of the single member bench of the Tribunal.
 
The Tribunal held that it cannot be said that the Commissioner has no power to convert a free shipping bill into drawback shipping bill. It was observed that Rule 12 (1) (a) required the exporter to mention details like the description, quantity and such other particulars in the shipping bill which are necessary for deciding whether the goods are entitled to drawback and if so at what rate or rates and makes a declaration on the relevant shipping bill that a claim for drawback is being made and in respect of duties paid on containers packing materials service etc no separate claim for duty has been made.
 
And the Board Circular provided that relaxation can be given by the Commissioner to the exporter from mentioning the details as prescribed by Rule 12. The Tribunal accordingly, held that this is nothing but an amendment of the shipping bill filed or conversion. Therefore, the observation of the Commissioner that he has no powers to convert a free shipping bill into drawback shipping bill was supported by the rule at all. The Circular of the Board goes beyond the rules.
 
The Tribunal further observed that Section 149 of Customs Act, 1962 clearly permitted amendment of shipping bill. And the amendment was permitted even after the goods had left the country if the basis for amendment is documentary evidence.
 
It was held that the Commissioner should have considered the application under Section 149. Accordingly, the matter remanded with direction to the Commissioner to consider the documentary evidence to be produced by the appellant in support of their application. No reason to differ with the judgment given in Hero Cycles Ltd.     
 
Decision:- Appeal allowed accordingly.
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