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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 Law/2014-15/2238

The decision to be followed in case of conflicting judgments of High courts.
Case:- COMMISSIONER OF CENTRAL EXCISE, JALANDHAR VERSUS M/s. BHAGAWATI FOREX

Citation:- 2014-TIOL-1173-CETSTA-DEL

Brief facts:-Revenue has preferred the appeal against the order dated 12.1.2009 passed by the Commissioner (Appeals), Chandigarh. The appellate Commissioner partly allowed the appeal preferred by the respondent/assessee against the order dated 31.3.2008 of the Assistant Commissioner, Central Excise, Jalandhar.
 
Proceedings were initiated against the assessee who was engaged in the business of money transfer under an agreement with M/s Western Union Financial Services, USA. Alleging, that the petitioner had provided the taxable Business Auxiliary Services (BAS) to the overseas entity from India and is therefore liable to tax, proceedings were initiated. The primary authority confirmed tax demand of Rs.61,721/- and imposed penalties under Section 75A, Section 76, Section 77 and Section 78 of the Act as well, apart from interest under Section 75.
 
Aggrieved, the assessee preferred an appeal. The ld. appellate Commissioner confirmed the primary order to the extent of the demand of service tax, interest and penalties under Sections 75 and 78 but dropped the penalty imposed by the primary authority under Section 76 on the ground that no penalty simultaneously could be imposed, following the judgment of this Tribunal in The Financers Vs. CCE, Jaipur 2007 (8) STR 7 (Tri.-Del.) 2007-TIOL-1778-CESTA T-DEL.
 
Aggrieved by the aforesaid order, the department has preferred an appeal in this Tribunal.
 
Appellant contention:-  According tothe appellant, the decision of the appellate commissioner were without any base because there are different opinions on the issue of penalty imposition under Section 75 , 76 , 77 & 78. So the revenue pleaded that penalty under section 76 should be imposed on the assessee.

Respondent’s contention:-   The issue of imposition of simultaneous penalties under Sections 76 and 78 was considered by several High Courts and there are conflicting views expressed on this aspect. While High Courts of Kerala and Delhi opined that prior to the amendment w.e.f . 10.5.2008 by a proviso introduced to Section 78, by the Finance Act, 2008, penalties under Sections 76 and 78, which operate on different aspects could be imposed vide Assistant Commissioner of Central Excise Vs. Krishna Poduval - 2006 (1) STR 185 (Ker.) 2006-TIOL-77-HC-KERA LA - ST and Bajaj Travels Ltd. Vs. CST 2012 (25) STR 417(Del.)=2011-TIOL-896-HC-DEL-ST and on the other hand, the Punjab & Haryana High Court in CCE Vs. First Flight Couriers Ltd. - 2011-TIOL-67-HC-P&H-ST recorded a contrary view, following its earlier judgment in CCE Vs. Pannu Property dealers and on the ground that since Section 78 is more comprehensive and provide for a higher quantum of penalty, though technically the scope of Section 76 and 77 are different, penalty under Section 76 may not be justified where penalty is already imposed under Section 78. To the same effect is the judgment of Karnataka High Court in CST, Bangalore Vs . Motor World - 2012 (27) STR 225 (Kar.) 2012-TIOL-418-HC-KAR-ST. Accordingly, the counsel for the respondent pleaded that the Commissioner Appeals has rightly waived penalty under section 76 of the Finance Act, 1994.

 

Reasoning of judgment:- After hearing the facts of the case, finally  the tribunal concluded that the Larger Bench of this Tribunal in CCE Vs. Kashmir Conductors - 1997 (97) ELT 257 (T) 2002-TIOL-353-CESTAT-DEL-LB had occasion to consider the issue as to the decision of which the High Court should be followed in case of conflicting opinions, particularly in the context of the fact that the Tribunal, an all India Tribunal, operates within the territorial jurisdictions of several High Courts and adjudicates disputes arising from different territories. The Larger Bench clarified that the decision of that High Court within whose jurisdiction the issue arises viz. where the taxable event occurs or the jurisdictional Commissioner passes the initial adjudication order, should be followed. Following the guidance provided by the Larger Bench decision in another appeal preferred by Revenue in a case arising from within the jurisdiction of the Punjab & Haryana High Court, they followed the decision of the Punjab & Haryana High Court in First Flight Couriers Ltd. (supra) to hold that simultaneous penalty under Sections 76 and 78 could not be imposed on that assessee whose transactions and cause of action arose within the jurisdiction of that High Court. This decision was recorded in FO No. ST/A/52161/2014- CU( DB) dated 15.5.2014. Following this decision and the analysis contained therein, they dismiss this appeal by Revenue, without costs.
 

Decision:- Appeal dismissed.

Comment:-The crux of the case is that in case of conflicting decisions on the same issue by different high courts, the decision of that High Court within whose jurisdiction the issue arises viz. where the taxable event occurs or the jurisdictional Commissioner passes the initial adjudication order, should be followed.

Prepared by:- Kushal Shah
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