Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1391

Validity of Order passed in violation of principles of natural justice

Case: Ganesh Polytex Ltd. v/s Union of India
 
Citation: 2011 (23) S.T.R. 417 (All.)
 
Issue:- If principles of natural justice violated then the order will become illegal.
 
Brief Facts:- Petitioner claims to manufacture Recycled Polyester Staple Fibre since 2000. According to them it is neither an excisable goods nor any excise duty is leviable on the same. The petitioner has also been filing returns showing them as non-excisable goods.
 
Department issued notice under Section 11-A of the Central Excise Act to the petitioner for charging excise duty on the said goods. Petitioner filed its reply. The Adjudicating Authority confirmed the demand against the petitioner.
 
The appeal was allowed by the Commissioner (Appeals) on 31-5-2004. Department then filed an appeal before the Tribunal and petitioner filed his cross objection in support of the order of the Commissioner (Appeals).
 
Appeal of the department was dismissed by the order dated 1-2-2005 upholding the order of the Commissioner (Appeals) and the cross-objection were disposed of accordingly. The Tribunal held that the goods manufactured by the petitioner were non-excisable goods in view of Note 1 of Chapter 54 of the Schedule of Central Excise Tariff Act.
 
The Government of India, Ministry of Finance issued instructions dated 29-6-2010 under Section 37-B of the Act wherein certain goods were explained to be excisable goods. In pursuance of these instructions, the jurisdictional Superintendent issued notices on 14-7-2010, 27-7-2001 and 2-8-2010 demanding excise duty from petitioner before clearance of the goods.
 
Petitioner replied to the said show cause notices, but the Superintendent instead of passing an order, seized the goods of the petitioner along with the truck.
 
Against this action, Petitioners filed writ petition wherein the prayer for challenging the notices were deleted and the petitioner was asked to file its reply before the competent authority. Revenue was restrained from interfering with the functioning of the petitioner’s factory.
 
Thereafter, a notice dated 13.08.2010 was issued to the petitioner asking them to execute a bond for the amount of assessable value likely to be cleared during the month. Petitioner executed the bond but also filed another writ petition challenging the notices.
 
In second write petition, interim order was granted on 27.08.2010. However, it was clarified that it would be open to the respondents to decide the question of classification of the goods manufactured by the petitioner.
 
During the pendency of the writ petitioners, Revenue again issued notice dated 03.09.2010 to the petitioner asking them to show cause on the same day for classification of the product manufactured by them. It was submitted by the petitioner that the notice was received at 5.30 in the evening and till that time it was not possible to file any objections. On the following day order was passed by the Assistant Commissioner holding that the goods will fall under heading 5503 20 00, 5506 20 00, 5505 10 90 and 5503 40 00 respectively and are chargeable to duty.
 
Petitioner filed an application in the second writ petition for annexing these orders and notices. The first WP has 1% become in fructuous and he does not wish to press it. It is dismissed as not pressed. The second writ petition has not been formally amended challeng­ing the order dated 4-9-2010 but the Counsel for the parties agreed that the writ petitions be decided finally and the validity of the order dated 4-9-2010 may be considered. High Court accordingly proceeded to decide the writ petitions including valid­ity of the order dated 4-9-2010.    
     
Petitioner’s Contention:- Petitioner submitted that no reasonable opportunity was given before passing the order dated 4-9-2010. The notice dated 3-9-2010 was received late in the eve­ning asking them to appear and show cause on the same day. No objec­tion could also be filed as the case was decided next day. The instructions issued by the Board can neither override the statu­tory provisions contained in Note 1 Chapter 54, a part of the Tariff Act;
 
The judgment of the Tribunal is in favour of the petitioner. The in­struction of the Board can neither override it nor nullify it; The Note 1 of Chapter 54 applies to all Chapters and is also appli­cable to Chapter 55; If Note 1 of Chapter 54 is taken into account then the goods manu­factured by the petitioner are not excisable goods and this was also so held by the Tribunal in its order dated 1-2-2005.
 
Respondent’s Contention:- The counsel for the respondents did not dispute the first two submissions of the petitioner but submitted that the instructions merely explain the statutory provisions and do not con­travene them; the principles of res-judicata are not applicable in taxing statutes.
 
It was not disputed that the notice dated 3-9-2010 or classifying the petitioner's goods was served on the same day in the late evening;
 
Reasoning of Judgement:- The High Court held that the issue involved was not of such a nature that could be decided in such a shoddy manner without affording reasonable opportunity to the petitioner. It was held that the order was against the principles of natural justice and is illegal and is set aside.
 
To protect the interest of Revenue, it was held that the bond executed by petitioner is sufficient and if it is exhausted then another bond may be furnished. Petitioner would be entitled to remove their goods without payment of any excise duty and the Revenue will not interfere in the functioning of petitioner’s factory or clearing of goods unless orders classifying the goods are passed against the petitioner.
 
Accordingly, impugned order dated 04.09.2010 set aside. Petitioner may filed objections against notice dated 03.09.2010 before the Assistant Commissioner. This interim relief directed to continue till classification issue not decided.
 
Decision:- Petitions disposed off accordingly.
 
Comment:- The violation of natural justice renders any order as void abinito and such an order are liable to be set aside. But we always come across the situation when the department always violates the principle of natural justice. In one recent judgement, the appellant pleaded for a date after a particular date as he was out of station. But the adjudication has given all three dates before such date and decided the matter. Further, the dates given were four days prior to date demanded by assessee. Such an act on the part of judicial authorities renders the order liable to quashed. 

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