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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.  

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PJ/Case Law/2013-14/1974

Whether a totally new ground can be taken in the revisionary show cause notice?

Case: AIA ENGINEERING LTD. V/S COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD
  
Citation: 2013 (32) S.T.R. 610 (Mad.)
  
Brief Facts: - The Appellant filed refund claims of Service Tax paid by them on terminal handling charges and repo charges. The refund was sanctioned by the original adjudicating authority. The Commissioner took up revision of the order passed by the original adjudicating authority and after issue of show cause notice, has passed the impugned order wherein refund sanctioned has been held to be wrong and the amount sanctioned has been demanded. Aggrieved by the order, the assessee filed the present appeal.
 
Appellant’s Contention: -The appellants contended that the refund has been denied on the ground that they had provided business auxiliary service and business support service and these services were not covered by the Notification No. 41/2007-S.T. He relied upon the Board’s Circular No. 112/6/2009-S.T., dated 12-3-2009 to submit that just because they had taken registration under a particular service category, the refund should not be denied on the ground that they had provided other services for which they were not registered. They also submitted that in this case the show cause notice issued by the Commissioner for revision under Section 84 of Finance Act, 1994 travelled beyond the show cause notice issued by the original adjudicating authority and the proceedings thereon. He submits that on these two grounds, they are eligible for refund and therefore the impugned order is liable to be set aside.
 
Respondent’s Contention: -The Respondents submitted that the services provided by the appellant were business auxiliary service and business support service which are not covered by Notification No. 41/2007-S.T. Further, the proceedings before them who has passed the order and in revision cannot be said to have travelled beyond the show cause notice in view of the fact that the original show cause notice was issued on the basis of documents submitted by the appellants and the original adjudicating authority had considered the eligibility or otherwise for refund based on documents. They while exercising their power also has gone through the very same documents and has come to the conclusion that the services in respect of which tax was paid were not covered by the said notification.
 
Reasoning of Judgment: - The Hon’ble Tribunal held that the appeals have to be allowed on the ground taken by the appellant that the Commissioner while exercising the powers of revision has gone beyond the show cause notice. In the case of Viacom Electronics (P) Ltd. v. CCE Vadodara reported in 2002 (145) E.L.T. 563 (Tri.-Mumbai), the Tribunal took a view that order under Section 35E of the Central Excise Act, 1944 beyond original show cause notice is not valid. Show cause notice in that case had alleged mutuality of interest between supplier and buyer, whereas Commissioner, while reviewing the order of Adjudicating Authority, held the buyer as real manufacturer. Since the review order was not passed on the basis of charges leveled in the show cause notice, the Tribunal held that the order was not sustainable. Further, in the case of Aero Products v. CST Bangalore reported in 2011 (22) S.T.R. 522 (Tri.-Bang.) also a similar view was taken after detailed consideration of the issue. In that case the revisionary show cause notice was issued for non-fulfillment of conditions in Export of Services Rules, 2005 which was not the ground on which original proceedings were initiated. In the case of Sands Hotel Pvt. Ltd. v. CST Mumbai reported in 2009 (16) S.T.R. 329 (Tri.-Mumbai) the original show cause notice did not have an allegation of suppression of facts with intention to evade Service Tax whereas the one issue in review made that allegation.
They held that all the decisions discussed above would show that a new ground cannot be taken in the revisionary show cause notice. In this case the original show cause notice had been issued only alleging that the documents did not contain the details of Service Tax paid and necessary declarations had not been filed by the appellants. While they have the fact that show cause notice was issued on 24-12-2008 and appellant replied to the show cause notice on 25-12-2008 and the Range Officer had submitted the verification report on 7-1-2009, whether the matter was referred to Range Officer for verification after the reply was received or not is not clear from the facts of the case in respect of appeal No. 311/2010. However, the discussion would reveal that the documents were not complete and information was not sufficient to sanction the refund. The revisionary show cause notice is on a totally new ground that the appellant is not at all eligible for the refund since the Service Tax was paid in respect of services not notified under Notification No. 41/2007-S.T.
  
Decision: - The appeal was allowed with consequential relief.
  
Comment: -The original show cause notice was issued only alleging that the documents did not contain the details of Service Tax paid and necessary declarations had not been filed by the appellants. However, in the revisionary show cause notice a totally new ground has been taken that the appellant is not at all eligible for the refund. It was decided that a totally new ground cannot be taken in the revisionary show cause notice.
 

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