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 Laws/2012-13/1547

Whether benefit of 25% of the amount of penalty can be extended by appellate authorities?

Case:- M/s General Motors India Pvt. Ltd. Vs Commissioner of C.Ex., Vadodara-II

 

Citation:- 2013-TIOL-502-CESTAT-AHM

 

Brief Facts:- The appellant is engaged in the manufacture and assembly of motor vehicles, import and procure indigenously various types of raw materials/parts/components. They have been availing cenvat credit of the excise duty element of such raw material/parts/components used as inputs. Intelligence was received that whenever the raw materials/parts/components were damaged in transit, the appellants claimed insurance of that damaged portion with the insurance company. The insurance claims were inclusive of the excise duty for which the appellants had already availed the cenvat credit. Thus they were availing the benefit of duty credit on the one hand and on the other hand claiming the amount of excise duty element with the insurance company. Summons were issued to the company for producing the details in this regard and statements of the Divisional Manager (Excise) recorded. The appellants admitted that they had availed cenvat credit on the indigenous and imported transit damaged materials and had reversed the duty involved on the said transit damaged materials for which they had received insurance claim for the period from September 2000 to March 2004 and that they had also reversed the duty and education cess pertaining to the transit damaged material for the month of August 2005. With regard to the reversal of credit in respect of the transit damaged materials for the later period i.e. from April 2004 to July 2005, the appellants submitted that they had already reversed the duty amount every month for the insurance claims received by them during the said period and gave the month wise details to the Department for the period April 2004 to July 2005. The appellants submitted that while they were regularly reversing such duty involved every month since April 2004, they had not reversed for the past period prior to April 2004 due to oversight. A show cause notice was issued  to the appellants for recovery of cenvat credit and education cess for the period from September 2000 to March 2004 and August 2005, under rule 14 of the Cenvat Credit Rules, 2004 read with section 11A of the Central Excise Act, 1944, and interest thereon under rule 14 of the Cenvat Credit Rules, 2004 read with section 11AB of the Central Excise Act, 1944, imposition of penalties under rule 15 of the Cenvat Credit Rules read with section 9 and section 11AC of the Central Excise Act, 1944 for wrong availment of cenvat credit with intent to evade payment of central excise duty.

 

Show cause notices were issued also for imposition of penalties on the individuals. The appellant contested the issue before the adjudicating authority and adjudicating authority confirmed the demands raised by an order and imposed equivalent amount of penalty and also recovery of interest and personal penalty on the Divisional Manager of the appellant's company. Aggrieved by such an order, appellant preferred an appeal before the first appellate authority. The first appellate authority in the impugned order has set aside the penalty on the individual but confirmed the demand of the duty, interest thereof and also the equivalent amount of penalty. Thereafter, appellant filed appeal before Tribunal.

 

Appellant’s contention:- The appellant submits that the he is not contesting the amount reversed by them as cenvat credit taken on the parts which were unusable in their factory premises. It is his submission that they are seeking only the benefit of Section 11AC, the discharge of 25% of the amount confirmed as duty liability and also ready to pay the amount within thirty days of the issuance of this order.

 

Respondent’s Contention:- The Respondent reiterates the findings of the lower authorities.

 

Reasoning of judgment:- The Tribunal heard both the parties carefully and considered the submissions made by both sides. The Tribunal finds that as there is no dispute towards the reversal of the cenvat credit on the parts which were not utilised by the appellant in their factory premises, order of the lower authorities as regards confirmation of the demand is upheld.

 

As regards the interest, Tribunal find that the appellant needs to pay interest as the provisions of Section 11AB will apply in this case even if cenvat credit is reversed before the issuance of show cause notice. Accordingly, we hold that the appellant is also liable to pay interest on the amount of duty liability which has been confirmed. Adjudicating authority will quantify and convey the amount of interest payable by the appellant as early as possible and on such communication, appellant will pay the interest within thirty days and report compliance to the adjudicating authority. As regards the penalty, we find merits in the submissions made by the appellant that since they have paid the amount of duty liability before the issuance of show cause notice, they are eligible to get the benefit of the decision of the Hon'ble High Court of Gujarat in the case of Akash Prints Pvt. Ltd. - 2009 (239) ELT 439 = 2009-TIOL-125-HC-A HM-CXwherein Hon'ble High Court of Gujarat has held that if the lower authorities have not extended the benefit of discharge of 25% of the amount of the duty liability as penalty as provided under Section 11AC of the Central Excise Act, 1944, Tribunal is at liberty to extend these benefits to assessee-appellant. From the records we find both the lower authorities have not extended this benefit to the appellant. Accordingly, respectfully following the ratio of the Hon'ble High Court of Gujarat, we extend the benefit of payment of 25% of the amount of the duty liability as penalty within thirty days from the date of receipt of this order and report compliance to the lower authorities who will consider it as compliance of our order. The appeal is disposed of as indicated hereinabove.

 
 

Decision:- The appeal is allowed.

 

Comment:- It is clear from this case that the benefit of payment of 25% of the amount of the duty liability as penalty under Section 11AC of the Central Excise Act, 1944, can also be extended by the appellate authorities if the same has not been provided by the lower adjudicating authorities.

 
 
 
 
 
 
 
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