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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 Laws/2012-13/1323

Whether appeal can be restored for compliance of stay order after 5 years ?

 
Case:-GLOBAL SYNTEX (BHL) LTD. Vs COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II
 
Citation:-2012 (28) S.T.R. 447 (Tri-Del.)
 
Brief Facts:-The appellant were directed to make a pre-deposit of Rs. 25 lacs as the issue involved was of clandestine manufacture and removal of their final products i.e. processed man-made fabrics. But the appellant did not deposit the pre-deposit and it resulted in dismissal of appeal on account of non compliance of stay order. Appellant has made pre-deposit of Rs. 5 Lacs after a period of five years from the date of passing the stay order. The appellant made no efforts to deposit any amount or to make restoration application so as to keep the interest alive. Appellant have also not challenged the stay order or the subsequent dismissal order before any higher appellate forum to recall the order of dismissal of appeal. BIFR passed the order on reference under section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, directing Tribunal to hear the appeal of company on deposit of Rs. 25 Lacs after 5 years of dismissal order.  
 
Appellant Contentions:-The ld. Counsel for the appellant draws attention to the order passed by BIFR on 4.3.2010 which states:
 
“The company would deposit Rs. 25 Lacs with the Excise Department out of the direction of 25% by CESTAT within two weeks. In the interest of revival of the company, CESTAT is directed to consider hearing the company’s appeal on deposit of Rs. 25 Lacs.”
 
He further submits that in terms of direction of BIFR, they deposited the amount of Rs. 25 lacs and as such, their appeals should be restored.
 
Respondent Contentions:-The learned SDR submits that BIFR is not an appellate authority over the Tribunal, such directions made by the BIFR are beyond their jurisdiction and power and for this reason, Tribunal is not bound to follow the above direction of the BIFR. In any case, the appellants have not deposited the amount within two weeks as directed by BIFR. He submits that the appeals were dismissed five years back and the appellants have not made any efforts to deposit any amount in between. The appellants have not approached the Tribunal for restoration of their appeals. If the appellants were aggrieved with the order of the Tribunal, they were well within their right to challenge the same before Hon'ble High Court. Respondent prays for rejection of the restoration of the applications.
 
 
Reasoning of Judgment:-After appreciating the submissions made by both sides and after going through the direction made by BIFR, Tribunal finds that B1FR passed the order on reference under section 15(1) of Sick Industrial Companies (Special Provisions) Act, 1985. The said order of the Tribunal or the subsequent dismissal was not the subject of challenge before BIFR, though same may be one of the factors to be considered by them while passing the order on reference. It was also noted that BIFR is not an appellate authority and as such we fully agree with the respondent that the direction contained in the said order of BIFR reproduced above were not called for and are beyond their jurisdiction and power. The CESTAT is not bound to follow the same. Learned Advocate has not been able to show as to how BIFR is exercising as an appellate authority over the Tribunal and is directing to recall the order.
 
Otherwise also, the observations made by BIFR that the Tribunal directed 25% of the duty confirmed are factually incorrect. The direction was to deposit 25 lacs by BIFR. In any case, BIFR directed the applicants to deposit 25 lacs within a period of two weeks from the date of passing order. The deposit of the same stands made after more than two and a half months.
 
Tribunal finds that the stay order as also subsequent dismissal order have not been challenged by the appellants before any higher appellate forum and there was no direction by higher appellate forum to recall the order of dismissal of the appeals. Appellant had deposit amount after a gap of five years. From the date of passing the stay order, no efforts made to deposit any amount or to make restoration application so as to keep their interest alive. Tribunal finds no justifiable reasons to recall the order of the dismissal, the applications are rejected
 
Decision:-Appeal rejected.
 
Comment:-The analogy drawn from the above case is that only an authority higher than Tribunal can direct it to re-consider the order passed by Tribunal. The Tribunal is not bound to follow direction of BIFR when it is not an appellate authority over the Tribunal and that too after unreasonable period of 5 years.
 
 
 
 

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