Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1198

The order passed in contravention of the stay order of High Court of Rajasthan is not sustainable.
Case:- GOLDEN TABACCO LTD. VERSUS COMMR. OF C.EX, (ADJ), NEW DELHI
Citation: - 2012 (282) E.L.T. 385(Tri-Delhi)
Issue: - The order passed in contravention of the stay order of High Court of Rajasthan is not sustainable.
Brief fact: -The appeals are preferred against the order-in-original confirming duty demand of Rs. 30,85,63,593/- with interest against the appellant M/s. Golden Tobacco Ltd. and M/s. Chinar Cigarettes Pvt. Ltd. besides imposing penalty on various persons including the appellant. These matters were originally listed for argument on stay applications moved by the appellants seeking waiver of the condition of pre-deposit of the duty demand and penalty. During the course of arguments, Advocate for the appellant submitted that the order has been passed in contravention of the stay order dated 1-11-2001 passed by the High Court of Rajasthan, as such is not sustainable in law. Since the arguments advanced by the Id. Counsel for the appellant is purely legal with the consent of the parties the tribunal have proceeded to hear the appeals itself after waiving the condition of pre-deposit of demand, interest and penalty. During adjudication proceedings the appellant requested for supply of copies of all the relied upon documents in terms of the law laid down by the Supreme Court. Commissioner (Adjudication) however failed to supply the complete set of relied upon documents. Accordingly, a writ petition seeking direction to the Department to supply copies of relied upon documents to the appellant was filed.
Appellant ContentionThe Appellant submitted that despite the stay order the Commissioner (Adjudication) instead of supplying the documents demanded by the appellant proceeded to pass adjudication order and signed the same on 7th November without mentioning the year.
Ld. Counsel submits that this order being in contravention of the stay order passed by the High Court cannot be sustained and is liable to be set aside. It has further submitted by Appellant that the High Court of Rajasthan ultimately allowed the writ petition vide order dated 30-1-2006 directing the department to supply copies of all the relied upon documents. It is further submitted that from the above it is apparent that the Commissioner (Adjudication) has violated the stay order passed by the impugned order without supplying copies of relied upon documents to the appellant and this itself amounts to violation of principle of natural justice because non supply of documents have prevented the appellant to properly defend the show cause notice. Thus, Id. Counsel has urged that the appeal be accepted and matter be remanded back for de novo adjudication after complying with the direction of the High Court and also permitting the appellant to cross-examine the relevant witnesses on whose statement the department wants to rely upon.
Respondent Contention:-  The Id. AR on the contrary has argued in support of the impugned order and he has referred to the affidavit of Commissioner (Adjudication), Delhi and submitted that adjudication order was passed by the then Commissioner (Adjudication) on 30-10-2001 when he approved the fair copy of the order in the administrative file. It is submitted that the order came into operation on 30-10-2001 and signing of the order by the Commissioner (Adjudication) on 7-11-2001 was only a formality. Thus Id. AR submitted that the impugned order was passed much before the said order. It is also contended that the final order of the High Court dated 30-1- 2006 has not given direction to the department to supply the copies of relied upon documents and it has no bearing on the validity of the impugned order because it was passed much before the final order. More so, because of the fact that the High Court while deciding the writ petition did not set aside the impugned order. The Id. AR has thus, pressed for the dismissal of all the appeals.
Reasoning of Judgment: In order to be executable order, it necessarily has to be signed by the authority concerned. Admittedly impugned order was signed on 7-11-2001 during the operation of stay order. Therefore, it came into existence on 7-11-2001 in violation of the stay orders, which was within the knowledge of the Commissioner (Adjudication), therefore, Tribunal do not find any merit in the contention of the Id. AR for the department.
It is evident that the impugned order has been passed by the Commissioner (Adjudication) in violation of the undertaking given to the Rajasthan High Court on 7-11-2001 by  Advocate for the department. Since the order has been passed in violation of the undertaking, Tribunal find it difficult to sustain the same otherwise also in view of the final order of the High Court on the writ petition of the appellant directing the department to supply copies of the relied upon documents, it is apparent that the appellant was not supplied with relevant relied upon documents by the adjudicating authority. This obviously has resulted in failure of justice because non supply of documents has prevented the appellant from defending the show cause notice properly. On this count also, the order-in-appeal cannot be sustained. Thus, Tribunal accept the appeals and remand the matters back to the Commissioner (Adjudication) for de novo adjudication and decide afresh with the direction that the Commissioner (Adjudication) shall supply the copies of documents to the appellant in terms of the direction of the Rajasthan High Court given in the writ petition vide order dated 30-1-2006. The Commissioner (Adjudication) shall also afford an opportunity of hearing to the appellant to cross-examine the relevant witnesses subject to their availability.
Decision: -Appeal disposed off
Comment:- This is very good decision wherein the Commissioner has passed the order without considering the direction of Court. The contention of the Commissioner was that he has passed the order before the final order by Court. The only thing was that he has singed the order after the order of High Court. When he was knowing the order of High Court on the date of singing of order. Then he should have complied with directions of High Court. This is the way of functioning of departmental officers. 
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