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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/2015-16/2805

Whether consistency to maintained in ordering pre-deposit in similar cases?

Case:-SRJ PEETY STEELS PVT. LTD. VERSUSUNION OF INDIA

Citation:- 2015 (323) E.L.T. 261 (Bom.)

Brief Facts:-By consent, the appeal is heard finally forthwith. The appeal has been preferred by the original assessee against the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal (“CESTAT” for short), Mumbai, dated 28-2-2011, on an application for an interim relief. The CESTAT has directed the assessee to deposit 50 per cent of the amount of duty demanded along with 25 per cent of the penalty imposed, within four weeks from the date of receipt of the said order. In the event the assessee complied with the order, there would be waiver of condition of pre-deposit and stay to the recovery of balance amount of duty and penalty.

Appelants Contention:-Mr. Godsay, the learned Advocate for the appellant has pointed out several decisions of the CESTAT, wherein, the CESTAT has granted full waiver of the deposit, as an interim relief, where the facts are similar to the present case. These decisions have been rendered in Nasik Strips Pvt. Ltd.v. Commissioner of Central Excise, Nasik, reported in 2011 (263) E.L.T. 606 and Mithulal Gupta v. Commissioner of Central Excise and Customs, Nashik,[Appeal Nos. E/676 and 677 of 2009, with Stay Applications Nos. E/Stay-977 and 978 of 2009 = 2011 (270) E.L.T. 231 (Tribunal)].
The learned Advocate for the appellant further pointed out that the Division Bench of this Court in Wardha Coal Transport Pvt. Ltd.v. Union of India, reported in 2009 (3) Bom. C.R. 306 = 2009 (13) S.T.R. 490 (Bom.), has observed that once the Tribunal has granted full waiver in similar cases, it would not be proper to take a different view and deny waiver of pre-deposit. According to Mr. Godsay, the Division Bench has not denied the waiver of pre-deposit and, instead, has directed the Tribunal to decide the appeal in accordance with law. He, therefore, contends that the matter ought to be remanded to the Tribunal to decide it afresh, after considering the aforesaid orders.

Respondents Contention:-The respondent has submitted that no substantial question of law has been raised by the appellant and that the CESTAT has not committed any error in directing the appellant to deposit a part of the duty and penalty.

Reasoning of Judgement:-In the view of tribunal, the matter deserves to be remanded to the Tribunal, as the Tribunal should take a consistent view regarding pre-deposit when the facts and circumstances in the matters before it are similar. Accordingly, the matter is remanded to the Tribunal. The Tribunal will take into consideration its earlier orders in Nasik Strips Pvt. Ltd. andMithulal Gupta, Bhavshakti Steelmines Pvt. Ltd. (supra) while deciding whether the appellant herein is entitled to waiver of pre-deposit. The appellant to appear before the Tribunal on 22-8-2011.The appeal is allowed, accordingly. No orders as to costs. Civil Application stands disposed of.

Decision:- Appeal allowed.

Comment:- The crux of the case is that the tribunal should take a consistent view regarding pre-deposit when the facts and circumstances of the cases are similar. Therefore, in the given case which is similar to the Nasik Strips Pvt. Ltd.and Mithulal Gupta, Bhavshakti Steelmines Pvt. Ltd. wherein the tribunal have granted the complete waiver of pre-deposit, it was considered as apt to remand the matter back to the tribunal for deciding it afresh in light of the decisions taken by it earlier.

Prepared By:- Neelam Jain
 

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