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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/2014-15/2512

Whether Commissioner (Appeals) has power to remand?

Case:-  COMMISSIONER OF CUSTOMS, TUTICORIN VS CHAMAN LAL BHAMBRI
 
Citation:-2015-TIOL-140-CESTAT-MAD

Brief facts:- The appeals relate to import of Second-Hand Off-set Printing Machine by M/s. Man Bhavan Arts vide Bill of Entry No.329181, dated 13.09.2003. The Adjudicating authority rejected the declared value and enhanced value and confirmed the demand of differential duty along with interest and imposed penalty on M/s. Man Bhavan Arts. He also imposed penalties on Shri Chaman Lal Bhambri and Shri Rajindar Jain on the ground that they are co-conspirator and well aware of undervaluation of goods. All the notices filed appeals before the Commissioner (Appeals). By Order-in-Appeal No.38/2010, dated 16.09.2010 and Order-in-Appeal No.50/2010, dated 12.10.2010 in the appeal of M/s. Man Bhavan Arts and Shri Rajindar Jain respectively, the Commissioner (Appeals) set aside the Adjudication order and remanded the matter to the Adjudicating authority to grant a fresh personal hearing after returning the ineligible documents and supplying legible copies of the relied upon documents and to give them proper opportunity to file their final reply and decide the case afresh as per law. Revenue filed the appeals before the Tribunal against the order of Commissioner (Appeals) in respect of M/s. Man Bhavan Arts and Shri Rajindar Jain. But, in the appeal of Shri Chaman Lal Bhambri, the Commissioner (Appeals) rejected the appeal and upheld the Adjudication Order against which the present appeal is filed. All the three appeals were filed against three separate impugned orders of Commissioner (Appeals), and all are arising out of a common Adjudication Order No.12/2010, dated 30.03.2010. Hence, all are taken up together for hearing.
 
Appellant’s contentions:-The learned Authorised Representative on behalf of the Revenue reiterates the grounds of appeal. She submits that the Commissioner (Appeals) has no power to remand the matter.
 
 
Reasoning of judgment:- After hearing the contention of the appellant i.e. revenue they find that the Hon'ble Supreme Court, High Court and the Tribunal by various decisions held that the Appellate Authority have powers to pass such order as it may deem fit and proper confirming, modifying or annulling the decision appealed against. Such power would extend assessment, waiving or remission against the other under appeal. The CESTAT also place some references of the cases as under:
 
(i) Union of India Vs Umesh Dhaimode reported in 1998 (98) E.L.T.584 (S.C.) = 2002-TIOL-415-SC-CUS.
 
(ii) Commissioner of Central Excise, Ahmedabad-I Vs Medico Labs reported in 2004 (173) E.L.T.117 (Guj.) = 2004-TIOL-39-HC-AHM-CX.
 
(iii) Commissioner of Central Excise, Pondicherry Vs Amaravathy Chemicals Ltd. reported in 2010 (252) E.L.T. 228 (Tri.-Chennai) .
 
(iv) Commissioner of Central Excise, Meerut-II Vs Honda Seil Power Product Ltd. reported in 2013 (287) E.L.T.353 (Tri.-Del.) = 2012-TIOL-2052-CESTAT-DEL.
 
(v) Commissioner of Central Excise, Delhi-I Vs Vikram Dhawan reported in 2012 (284) E.L.T. 554 (Tri.-Del.) .
 
Hence they do not find any reason to interfere with the order of the Commissioner (Appeals) against which appeals filed by the Revenue. As the Commissioner (Appeals) by the earlier Order-in-Appeal set aside the Adjudication order and, therefore, the impugned order passed by Commissioner (Appeals) against Shri Chaman Lal Bhambri cannot be sustained. Accordingly, the impugned Order-in-Appeal against which the appeal filed by Shri Chaman Lal Bhambri is liable to be set aside and remanded to the Adjudicating authority.
 
In view of the above discussions, they dismiss the appeals filed by the Revenue. The appeal filed by Chaman Lal Bhambri is allowed by way of remand to the Adjudicating authority. As the matter relates to 2003 imports, they also directed the Adjudicating authority to decide these matters as early as possible following the direction of the learned Commissioner (Appeals) in the case of M/s. Man Bhavan Arts and Shri Rajindar Jain. Stay application filed by Shri Chaman Lal Bhambri was also disposed of.
 
Decision:- Appeals allowed by way of remand.

Comment:-The crux of the case is that Commissioners(Appeals) as an appellate Authority have  the powers to pass such order as it may deem fit and proper confirming, modifying or annulling the decision appealed against the orders of adjudication authority. Such power would definitely include the power of remand and the same is also backed by number of decisions given by the Tribunal.

Prepared by:- Kushal Shah

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