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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 Laws/2012-13/1545

Whether deciding the case ex parte is correct when authorized representative filed adjournment?

Case:- AMBIKA ENGINEERING WORKS VS  UNION OF INDIA

Citation:- 2013(289) E.L.T. 447 (HIGH COURT-Guj.)

                                                                                            

Brief Facts:-This writ petition has been filed challenging the order dated 26-12- 2011 passed by Customs Excise and Service Tax Appellate Tribunal, (For short 'CESTAT'), Ahmedabad, by which the petitioner's Stay Application has been decided by the Tribunal on 26-12-2011 in absence of the authorized representa­tive of the petitioner and order dated 6-1-2012 passed by the Tribunal, by which the Stay Application has been partly allowed and the petition has been directed to deposit an amount of Rs. 40,00,000 (Rupees Forty Lacs) within a period of 8 weeks as a pre-deposit for maintaining the Appeal before the Tribunal.

It is not disputed that the petitioner had filed a letter dated 20-12- 2011 before the Tribunal informing that the Chartered Accountant Mr. Hardik P. Shah, was out of station and therefore, he would not be in a position to appear before the Tribunal and, therefore, the matter may be adjourned to some other date. Though, the Tribunal has mentioned this fact in its order, but has refused to adjourn the matter without assigning any proper and cogent reason for not ad­journing the matter. The authorized representative of the petitioner was required to be heard in respect of Stay Application and if, he was out of station then adjournment ought to have been granted by the Tribunal to enable him to appear before the Tribunal and argue Stay Application.

In the affidavit-in-reply, this fact is not disputed that Mr. Hardik P. Shah, Chartered Accountant was out of Station on 26-12-2011.

 

Reasoning of Judgment:-  In our considered opinion, the Tribunal has refused to adjourn the mater on 26-12-2012, which has caused great prejudice to the petitioner as the Stay Application could no be argued on merit on behalf of the petitioner and the Tribunal passed ex parte order directing the petitioner to deposit Rs. 40,00,000 (Rupees Forty Lacs) within a period of 8 weeks. The order passed by the Tribunal being contrary to the principles of natural justice, is liable to be quashed as direc­tion is liable to be issued for deciding the Stay Application of the petitioner afresh giving opportunity of hearing to Mr. Hardik P. Shah, Chartered Account­ant, who appears on behalf of the petitioner

In the result, this writ petition succeeds and is allowed. The order dated 26-12-2011 passed by Central Excise and Service Tax Appellate Tribunal, Ahmedabad in Application No. E/S/45 of 2011 in Appeal No. E/45 of 2011 is set aside. The Tribunal is directed to fix a date for hearing of the Stay Application and after hearing the authorized representative of the petitioner, shall decide the StayApplication afresh and pass appropriate order in accordance with law. Rule is made absolute accordingly

Decision:-  The appeal is allowed

Comment:-The analogy drawn from this case is that the matter should not be decided ex-parte and without giving proper opportunity of hearing when the authorised representative had sought adjournment of hearing for a valid reason depicting his inability to attend the said hearing. Tribunal should not refuse to grant adjournment without assigning any reason.

 

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