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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 Laws/2011-12/1424

Whether after reversal of CENVAT, can it be taken again or refund claim is to be filed?

Case:Automotive Metal Stampings Pvt. Ltd. V/c Commr. Of C. Ex., Pune-I
 
Citation:2011 (272) E.L.T. 603 (Tri.-Mumbai)
 
Issue: - After reversal, cenvat credit cannot again be taken suo motu but refund claim is to be filed.
 
Brief Facts: - Appellant-assessee reversed the Cenvat credit under protest as per directions of Department. Department did not issue any Show Cause Notice for one year after reversal and appellant suo-motu took back the credit reversed and intimated the department about the same.
 
Thereafter, the department issued show cause notice on the ground that the appellants should have actually filed refund claim and should not have taken back the credit suo motu. The matter is before the Tribunal and stay application is also filed.
 
Appellant’s Contention: -Appellant submitted that they were forced to reverse the Cenvat Credit availed by them. Since no show cause notice was issued till date, there was nothing wrong in availment of credit. The appellant admitted that they were not able to show a contrary decision on the same issue. Appellant further submitted that the appeal filed against the decision of BDH Industries Ltd has been admitted by the High court of Bombay. It was also submitted that the decision of larger bench in the case of BDH Industries Ltd could not have been made applicable to them since in this case the reversal of credit itself was wrong and was made because of the force of the department.
 
Appellant further submitted that no show cause notice has been issued even after five year and this fact shows that the department has no case whatsoever. In these circumstances, the amount deposited by the appellants could only be a deposit and not a duty and, therefore, the procedure followed by the appellants was correct.
 
Reasoning of Judgment: -The Tribunal considered that the appellants after following the correct procedure subsequently changed their mind for reasons best known to them. In view of the decision taken by the Larger Bench in BDH Industries Ltd case, the reasoning for reversal of CENVAT  Credit is not relevant. The Re-credit has to be taken by filing refund claim only. The position does not change depending on the ground for taking re-credit. Since the decision does not differentiate between the grounds for reversal, the Tribunal further stated that they were bound to follow the decision of the Larger Bench and therefore hold that the appellants have not been able to make any prima facie case.
 
The Tribunal held that in view of the decision of the Larger Bench, nothing more is left to be decided in this case. The appellant has requested whether the appellants could reverse the credit taken by them suo motu with interest and file a refund claim which can be considered by the department as fast as possible.  The Tribunal directed the appellants to reverse the credit with interest and file refund claim. The Tribunal also directed the departmental officer to sanction the refund within a period of one month from the date of filing the claim since in this case the question of unjust enrichment does not arise and after reversal no show cause notice has been issued.
 
The Tribunal further considered that reversal has been made under protest therefore refund claim cannot be rejected on the ground of limitation. In view of the above discussion the stay petition is allowed and the impugned order is set aside as far as penalty is concerned.  
 
Decision: - Appeal disposed of accordingly. 
 

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