Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1287

Whether CESTAT can remand the matter back with the direction to the appellant to first pre deposit a part of the duty even though the Act does not provide?
Case:-Fidelity Magnetics versus Commissioner of Central Excise
 
Citation:-2012 (27) S.T.R. 4 (Bom.)
 
 
Brief Facts:-The Appellant is engaged in the manufacture of recorded audio cassettes on job work basis for various music companies. The assessee was called upon to show cause as to why the clearances effected during the period from 1-3-1997 to 1-6-1998 should not be held to be under valued and duty should not be recovered with interest and penalty. The assessee op­posed the claim in the show cause notice. In the order in original, the duty demand was confirmed with interest and penalty. On appeal filed by the assessee, the Commissioner of Central Excise (Appeals), by his order, directed the assessee to make pre-deposit of the entire amount of duty by relying upon the Circular No. 619/2002 dated 19-2-2002. As the amount was not deposited as per the order, the Commissioner of Central Excise (Appeals) by his order missed the appeal for non compliance of the pre-deposit order. The assessee filed further appeal be­fore the CESTAT with an application seeking waiver of pre-deposit and the tribunal by following its decision in the case of Vijayata Audio World and Ors. waived the pre-deposit. Subsequently, the impugned order of Commissioner (Appeals) is set aside by the tribunal and the matter has been restored to file the same to the Commissioner (Appeals) with a direction to pass fresh order on merits as the issue was highly debatable and highly arguable. However, the Tribunal further directed that the order of the Tribunal in restoring the appeal before the Commissioner (Appeals) shall be subject to the condition that the assessee shall de­posit 50% of the amount involved within the time stipulated therein. Challenging the aforesaid order the present appeal is filed.
           
Appellant’s Contention:-The appellant said that once the application for waiver of pre-deposit is allowed by the Tribunal and the matter was heard on merits, the Tribunal while setting aside the order of Commissioner (Appeals) and restoring the matter to file the same to Commissioner (Appeals) could not have di­rected the assessee to make pre-deposit.
 
Reasoning of Judgement:- We have considered the submissions of both sides. In the present case the Commissioner of Central Excise (Appeals) had directed the assessee to make pre-deposit by relying upon the Circular No. 619/2002. Similarly the Tribunal by following its decision in the case of Vijayata Audio World and Ors. (supra) had granted full waiver of pre-deposit. While disposing of the appeal, the Tribunal has neither considered the applicabil­ity of the Circular No. 619/2002 nor the non-applicability of the order of the Tri­bunal in the case of Vijayata Audio World (supr4). In any event, having granted full waiver of pre-deposit, the Tribunal in the absence of any special circumstances ought not to have ordered pre-deposit. In these circumstances, since the issue in the present case relates to the period 1-3-1997 to 1-6-1998, it would be just and proper to set aside the order passed by the Commissioner (Appeals) and also the order of CESTAT and direct the Commissioner of CESTAT (Appeals) to dispose of the appeal on merits without insisting pre- deposit. Accordingly, without going into the question as to whether the Tri­bunal has power to direct pre-deposit under Section 35C(1) of the Central Excise Act 1944, we dispose of the appeal in terms stated herein above. The appeal is disposed of accordingly with no order as to costs.
 
Decision:-Appeal Allowed.
 
Comment:This is a weird case wherein the Tribunal firstly granted full waiver of pre-deposit and subsequently, directed the appellant to file the appeal to the Commissioner (Appeals) with the condition to deposit 50% of the amount involved on account of issue under consideration being highly debatable.  
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