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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.  

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PJ/CASE LAW/2016-17/3056

Whether appeal before High Court is maintainable when issue is related to determination of rate of duty?
Case:- COMMISSIONER OF CENTRAL EXCISE Versus SHANTI PROCESSORS LTD.
 
Citation:- 2016 (331) E.L.T. 234 (Guj.)
 
Issue:-  Whether appeal before High Court is maintainable when issue is related to determination of rate of duty?
 
Brief facts: - Heard Mr R.J. Oza, learned Senior Standing Counsel for the appellant in each of the appeals and Mr. Dhaval Shah, learned advocate for the respondent in Tax Appeal No. 332 of 2015 and Mr. Paresh Dave, learned advocate for the respondent in Tax Appeals No. 331, 333 and 341 of 2015.
These appeals are filed under Section 35G of the Central Excise Act, 1944. The appellant-revenue has challenged the order dated 28th October, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal [2014 (310)E.L.T.515 (Tribunal-LB)] by proposing the following questions, stated to be substantial questions of law :  
“(A) Whether in the facts and on the circumstances of the case, the Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal has committed substantial error of law in interpreting Notification No. 14/20002-C.E., dated 1-3-2002 and consequently holding that exemption under Sr. No. 12 in terms of the said notification would be admissible to the assessee, read with condition-3 and Explanation-II to the said notification, even if actual duty payment condition is not fulfilled by the assessee? 
(B) Whether the conditions attached to Notification No. 14/2002-C.E., dated 1-3-2002 provide that the benefit under the said notification can be available in relation to the products, which are subjected to actual payment of duty and not otherwise?
(C) Whether in the facts and circumstances of the case, what is the scope of Explanation-II to Notification No. 14/20002-C.E., dated 1-3-2002 and whether the legal fiction created thereunder includes textile yarns and fabrics subjected to Nil rate of duty or those which are not subjected to the payment of duty?
(D) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in holding that decision taken in the case of CCE, Ludhiana v. Prem Industries, Simplex Mills Co. Limited v. CCE and Morarjee Gokuldas Spinning and Weaving Co. Ltd. v. CCE were correct interpretation of exemption Notification No. 14/20002-C.E., dated 1-3-2002, without recording findings on the distinguishing points of contentions raised by the Departmental Representative at the hearing by the Larger Bench of the Tribunal?”  
 
Respondent’s contention:-Mr. Paresh Dave and Mr. Dhaval Shah, learned advocates for the respondents at the outset submitted that the controversy involved in the present case relates to the determination of a question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment, under the circumstances, in view of the provisions of Section 35G read with Section 35L of the Central Excise Act, 1944, the appeal would lie before the Supreme Court and not before this court. In support of such submission, the learned counsel placed reliance upon the decision of this Court in the case of Commissioner of Central Excise v. JBF Industries Limited - 2011 (264) E.L.T. 162 (Guj), wherein this court has held that the question as regards the applicability of a notification or a circular, which has a direct bearing on the rate of duty is a question which has a direct and proximate relationship to the rate of duty and value of the goods for the purposes of assessment. It was submitted that the above decision would be squarely applicable to the facts of the present case, under the circumstances, these appeals are not maintainable before this Court.  
 
Appellant’s contention:- Mr R.J. Oza, learned senior standing counsel for the appellant is not able to dispute the above position of law.
 
Reasoning of judgment:-A perusal of the impugned order of the Tribunal clearly shows that the dispute involved in the present case relates to the applicability of Notification No. 14/2002-C.E., dated 1-3-2002 which has a direct bearing on the determination of the rate of duty for the purposes of assessment. Under the circumstances, in the light of the provisions of Section 35G read with Section 35L of the Central Excise Act, 1944 these appeals are not maintainable before this Court.
In the aforesaid premises, the appeals are disposed of as being not maintainable before this Court leaving it open for the appellant to file the same before the appropriate forum. The Registry shall return the appeal papers to the learned counsel for the appellant after maintaining a copy thereof for the record. 
 
Decision:-Appeals dismissed.
 
Comment:- The analogy of the case is that Issue involved is being related to grant of exemption under Notification No. 14/2002-C.E., having direct bearing on determination of rate of duty for assessment. Appeal before High Court is not maintainable. Appellant is at liberty to file appeal before appropriate forum.
Prepared by:- Monika Tak
 
 
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