Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ-Case law-2012/13-1563

Whether an rebate appeal dismissed as time barred by Commissioner Appeals without considering merits be preferred to Tribunal?

Case:-DISHA FOODS PVT. LTD. Versus COMMISSIONER OF C. EX., HYDERABAD

Citation:-2013 (291) E.L.T. 61 (Tri. - Bang.)

Brief facts:-The appellant had claimed rebate of central excise duty on goods exported to various countries. The original authority sanc­tioned the claim to the extent of some amount and rejected the balance claim. The party was not aggrieved by rejection of re­bate claim. As regards rejection of rebate claim, they preferred an appeal to the Commissioner (Appeals). There was a delay of four days in the filing of that appeal. The party applied for its condonation on certain grounds. The learned Com­missioner (Appeals) was not impressed with the reasons stated for the delay of the appeal. In the result, the appeal against the order-in-original came to be dismissed as time-barred. The present appeal of the party is directed against the appellate Commissioner's order.

Appellant’s Contention:-The learned counsel for the appellant submits that this appeal was filed as advised by the Commissioner (Appeals) himself. In this connection, he refers to the preamble to the impugned order, which contains the following ad­vice
"Any person aggrieved by this order, may under Section 35B of the Act, read with Rule 6 of the Rules file an appeal to the Customs, Excise & Ser­vice Tax Appellate Tribunal, South Zonal Bench,”  
The learned counsel also explains the circumstances in which the appeal against the order-in-original happened to be delayed by four days. He prays for condo­nation of this delay and remand of the case to the Commissioner (Appeals) for a decision on merits.

Respondent’s Contention:-The learned Superintendent (AR) raises a preliminary objection. He submits that, as the impugned order relates to rebate of duty of excise on goods exported to countries outside India, the appeal is barred by clause (b) of the first proviso to sub-section (1) of Section 35B of the Central Excise Act. It is submitted that the remedy available to the appellant is an application to the Central Government under Section 35EE of the Act (revision by Central Government). Accordingly it is urged that the appeal be dismissed as not maintainable.
 
Reasoning of Judgment:-After hearing both sides & considered the documents submitted by both the parties, it is found that as the impugned order is an order passed by the Commissioner (Appeals) under Section 35A, it needs to be examined as to whether this appeal is barred by clause (b) of the proviso. If the impugned order can be considered as an order relating to a rebate of duty of excise on goods exported to countries outside India, then it has to be held that the appeal is not maintainable before this Appellate Tribunal and that the remedy available to the appellant is to file a revision application with the Central Government under Section 35EE of the Act. Sub-section (1). It is also added that the impugned order in this case did not deal with any rebate claim. In that order, the learned Commissioner (Appeals) was considering whether the delay of four days involved in the filing of appeal by the assessee against the As­sistant Commissioner's order was condonable under Section 35 of the Act. He refused to condone the delay and dismissed the delay condonation application filed by the party. Consequently, the appeal against the Assistant Commis­sioner's order also came to be dismissed as time-barred. The appellate Commis­sioner's order did not even refer to the substantive issue (whether the rejection of rebate claim by the original authority was sustain­able or not). The issue did not figure in the appellate Commissioner's order at all. Therefore, tribunal is of the considered view that the impugned order can neither be considered as an "order relating to rebate of duty of excise on goods exported to any country or territory outside India", nor as an "order of the nature referred to in the first proviso to sub-section (1) of Section 35B of the Act". The impugned order is an order on maintainability of the appeal only inasmuch as the learned Commissioner (Appeals) held the appeal to be time-barred and hence not main­tainable. Such an order, in my considered view, is appealable to this Tribunal under Section 35B(1) of the Act.It is trite law that the legislative intent should be deciphered from a conjoint reading of all the relevant provisions of the statute. The provisions have to be construed in a manner which would advance justice in a given set of facts and not in a manner which leaves the aggrieved party remediless. Bearing this cardinal principle of interpretation in mind, one must look at this case from an­other angle. Section 35C of the Act empowers this Appellate Tribunal to confirm, modify or annul the decision or order appealed against. It also authorizes this Appellate Tribunal to remand the case to the lower authority for good reasons. On the other hand, Section 35EE of the Act does not authorize the Central Gov­ernment to remand any rebate case to the Commissioner (Appeals). On the facts of the present case, this Appellate Tribunal can remand the case to the lower ap­pellate authority for a decision on merits if it is found that the aforesaid delay of four days involved in the filing of appeal before him against the Assistant Com­missioner's order is liable to be condoned. On the other hand, the Central Gov­ernment functioning under Section 35EE of the Act cannot remand the case to the Commissioner (Appeals) upon identical finding. In other words, on the peculiar facts of this case, the assessee is rendered remediless if this appeal is dismissed as not maintainable. In the result, the preliminary objection raised by the learned Superin­tendent (AR) stands overruled. This appeal is maintainable inasmuch as the ap­pellant has not raised any contention in relation to the rebate claim and has only raised grounds for condonation of the aforesaid delay of the appeal preferred to the Commissioner (Appeals). After carefully considering the grounds of this ap­peal, Tribunal was of the view that the refusal by the Commissioner (Appeals) to condone the above delay is unjust. The delay is liable to be condoned. Therefore, Tribunal set aside the impugned order and allow this appeal by way of remand with a re­quest to the Commissioner (Appeals) to pass a speaking order on the substantive issue after condoning the above delay and giving the party a reasonable oppor­tunity of being personally heard on the said issue.
 
Decision:-Appeal Allowed.

Comment:-The analogy drawn from this case is that although the appeal for rebate claim lies to the revisionary authority after the dismissal of appeal by the first appellate authority, i.e., Commissioner Appeals, but in the present case the appeal filed to the Commissioner Appeals by the appellant was rejected on account of delay of 4 days in filing the appeal without even considering the merits of the case. In such circumstances, it was concluded that the appeal against the order rejecting the condonation of delay in filing the appeal was maintainable to the Tribunal.  

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