Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2016-17/3048

Whether condonation of delay in filing appeal is allowed when order was not served to the assessee on time?
Case:ADF FOODS LTD. Vs COMMISSIONER OF CENTRAL EXCISE, NASHIK
Citation:2015 (325) E.L.T. 922 (Tri. - Mumbai)
Issue: Whether condonation of delay in filing appeal is allowed when order was not served to the assessee on time?
Brief Facts: The appellant which is 100% EOU is in appeal against Order-in-Appeal passed by the Commissioner of Central Excise & Customs (Appeals), Nashik. By the impugned order the appeal has been dismissed on limitation without entering into the merits.
The order denying refund dated 2-4-2009 was issued on 3-4-2009 and the same was dispatched by speed post on 16-4-2009. The appeal was filed on 21-8-2009 before the Commissioner (Appeals). The Commissioner (Appeals) in view of the dispatch of the order on 16-4-2009 assumed the date of receipt by the appellant on 18-4-2009.
Appellant’s Contention: The appellant states that the dispatch of order by speed post was not served on them. When the Excise Officer of the appellant, Mr. SB Deole went to the office of the Department sometime in June, 2009, he came to know of the passing of the Order-in-Original dated 2-4-2009 and accordingly he collected the said order. It is submitted that the time limit to file appeal will start from the date of knowledge and receipt of the order, being 23-6-2009. If limitation is counted from 23-6-2009 the appeal is filed within the limitation period of 60 days.
The appellant urges that Section 37C of the Central Excise Act provides that any decision or order passed under this Act shall be served - 1(a) by tendering the decision, order, summons notice, by sending it by registered post with the acknowledgement due, to the person for whom it is intended or on his authorised agent, if any. The said clause 1(a) is amended by the Amendment Act that is Finance Act, 2013 wherein the words by speed post with proof of delivery or by courtier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 have been added. Thus the essential element in service by post is “acknowledgement due”. Admittedly there is no acknowledgement available on record of the Revenue supporting the assumed date of service by the Commissioner (Appeals). Accordingly it is further urged that the learned Commissioner (Appeals) has erred in assuming the date of service and dismissing the appeal on limitation and it is prayed that the impugned order be set aside with a direction to the learned Commissioner (Appeals) to hear and dispose of the appeal on merits.
Respondent’s Contention: The learned A.R. relies on the impugned orders. The learned A.R. further contends that tendering to the Post Office amounts to tendering of the assessee. He further relies on the ruling of the Hon’ble Apex Court in the case of Singh Enterprises v. Commissioner - 2008 (221)E.L.T. 163 (S.C.) wherein, Hon’ble Supreme Court held that where appeal is filed beyond a period of limitation and further beyond the period condonable by the Commissioner (Appeals), then such delay in appeal cannot be condoned by the Commissioner (Appeals) and further the condonation cannot be allowed for such delay under the provisions even by the higher courts.
Reasoning of Judgement: They hold that the Commissioner (Appeals) is in error in holding that the date of service on the appellant is 18-4-2009 without proof of the same available on record. That the impugned order is vitiated and is against the provisions of law. They accept the date of service of order as 23-6-2009 as claimed by the appellant in view of no facts on record to the contrary. Accordingly, they set aside the impugned order and direct the learned Commissioner (Appeals) to hear the appellant on merits and dispose of the appeal in accordance with law. The appellant is also directed to appear before the learned Commissioner (Appeals) with a copy of this order and seek an opportunity of hearing.
Decision: Appeal allowed by way of demand.
Comment: The gist of case is that the time limit for filing of appeal is to be taken from the date of service of order to the assessee. Without proof available on record that the order was served to the assessee, the order can’t be passed on the basis of limitation of delay in filing appeal.
 
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