Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2292

Whether failure to produce original copy of warehousing certificate result in duty demand?

Case:-  COMMISSIONER OF CENTRAL EXCISE, TAJKOT VERSUS GALAXY EXPORTS

Citation:-2014(301) E.L.T. 672 (Tri.-Ahmd.)

Brief facts:-This appeal is directed against the Order-in-Appeal No. 154/2006/III(RAJ)/COMMR-(A)/RP/RAJ, dat­ed 21-3-2006 and is filed by the Revenue.

Briefly stated the facts of the case are that appellant had cleared 94515 pieces of scarf made from polyester dyed/printed fabrics (S.H. No. 6214.30) valued to Rs. 33,08,025/- vide ARE-3 No. 10, dated 6-6-2003, No. 17, dat­ed 27-6-2003 and No. 18, dated 4-7-2003 against CT-3 No. 10, dated 4-6-2003 to M/s. Vrinda Tex-prints N./H. No. 6, via Dhhulagori-PS. Sankrali, Dist. Howrah, West Bengal. As no warehousing certificate was received, it was inferred that the goods in question, cleared by the appellant have not been warehoused at the premises of the consignee.

Therefore, a Show Cause Notice No. V.RJT-11 /AR. Jetpur/ADC/029/2004, alleging that the appellant have clandestinely declared the said goods to the domestic market with an intent to evade payment of duty leviable thereon, the appellant was also asked to show cause as to why Central Excise duty amounting to Rs. 19,69,259/- should not be demanded and recov­ered from them under Section 11A read with proviso to Section 3(1) of the Cen­tral Excise Act, 1944 and Rule 20 of the Central Excise Rules, 2002, and also con­sequential interest and imposition of penalty.
 
The Adjudicating Authority has confirmed the demand of Rs. 19,69,259/- along with interest under Section 11AB on the ground that the recipient-consignee has not informed their Superintendent in-charge regarding receipt of the goods nor they have produced the original copy of warehousing certificate. Therefore, it held that the consignee, M/s. Vrinda Textprint, Dist. Howrah had not received any goods from the appellant-consignor and it has also held that the appellant have diverted all the goods covered under subject three AR-3s to other places with sole intention to evade payment of duty leviable thereon. The Adjudicating Authority also held that if the goods dispatched for warehousing or re-warehousing is not re-warehoused, the responsibility for payment of duty shall be upon the consignor. The Adjudicating Authority has also imposed equal penalty of Rs. 19,69,259/- under Section 11AC of the Central Excise Act, 1944 on the appellant.

Aggrieved by such an order, the Assessee preferred an appeal before the First Appellate Authority and submitted evidence in support of their claim regarding re-warehousing of their final products in export oriented unit. The First Appellate Authority considering the evidences on record as submitted by the Assessee, came to the conclusion that the Appellant has proved that the goods cleared from his factory premises, in fact, was received by the consignee. Coming to such a conclusion he set-aside the order in original and allowed the appeal filed by the Assessee. The Revenue is aggrieved by such an order in this appeal.
 
Appellant contentions:-Ld. Departmental representative would reiterate the grounds of ap­peal in the appeal memorandum which are reproduced here below:

"The Appellate Authority failed to consider that the superintendent in charge of the assessee has never received re-warehousing Certificates from the Customs Authority in charge of consignee unit.

The Appellate Authority failed to consider that there was allegation in the Show Cause Notice that in absence of receipt of re-warehousing Certifi­cates, the assessee has diverted the goods in local market. The same was al­so confirmed by the Adjudicating Authority in para No. 8 of the OIO.

The Appellate Authority wrongly relied upon the documents produced by the assessee with purported signature of the departmental authority. The said documents produced by the assessee  were never corroborated by the relevant copies which are required to be received by the superintendent in charge of the assessee unit.

It was argued by the assessee that the department should have called for the documents and records from the Superintendent, Kolkata. The same was mentioned by the Appellate Authority at para No. 4 of the OIA. It was also mentioned by the Appellate Authority at Para No. 6 of the OIA that the superintendent in charge of the unit has apparently written two letters to the jurisdictional Range Superintendent who has issued CT-3 Certificate for clearance of the said goods.

Therefore it was on the records that department was trying to get behind reasons of non-receipt of re-warehousing Certificates from the concerned Authority. The Appellate Authority should have waited for the outcome of the inquiry before setting aside confirmed demand.

A bigger inquiry is being conducted in respect of the assessee  which re­vealed that the Vehicle No. HR-37 B 9721, purportedly used by the assessee for sending the subject goods, was utilized by some other parties during the material period. Therefore it was established beyond doubt that the as­sessee has diverted the subject goods to local market and consignee has never received the subject goods. SCN issued was pending for Adjudica­tion.

Therefore, it appears that the Appellate Authority wrongly relied upon the documents produced by the assessee and arrived at wrong conclusion that re-warehousing has been established beyond doubt."
 
Respondent Contentions:-None appears on behalf of the Respondent. Since the matter is of 2006, the appeal filed by Revenue was taken up in absence of any representation from the Assessee.
 
Reasoning of Judgment:-On perusal of the record, we find that the issue involved in this case is regarding demand of the duty on the Assessee on the ground that they were not able to produce evidence/proof of warehousing of finished goods cleared by them to their consignee at Kolkata. Ld. First Appellate Authority in the im­pugned order has recorded following findings :

"Further the appellant produced the original copies of the ARE-3As (dupli­cate Yellow copy) meant for the assessee during the hearing and it is no­ticed from the ARE-3A that the jurisdictional officer in charge of the ware­house Kolkata has duly signed the AR-3A and certified for having received the said goods and for having accounted for in the Bonded Register. Fur­ther the goods were cleared under valid CT-3 Certificate issued by the competent authority and the clearance of goods from EOU to another EOU, the Project Authority's certificate was also produced before the Adjudicat­ing Authority and the same was also produced before Appellate Authority. In view of the above facts, the appellant's contention that goods cleared from the factory has been proved and the same have been duly received by the officer in charge of the buyer's unit and proof of re-warehousing has been established beyond doubt whereas the Adjudicating Authority has not given findings to the contrary for the diversion of the goods."

On going through the above findings, it can be noticed that the First Appellate Authority has come to a factual conclusion, as regards receipt of the goods by Export Oriented Units in Kolkata. The Revenue has not adduced any evidence contradicting the above findings. The tribunal perused the record and find that A.R.3-A's in question are annexed to the appeal memorandum. In the said A.R.3- A's it was found that the Customs House Preventive Officer, in-charge of the Export Oriented Unit at Kolkata has signed the A.R.3-A's in token of having received the same from the consignees at Kolkata. On such a clinching evidence on receipt of goods at EOU and accepted by in-charge of the EOU, it was found that the Revenue's appeal is devoid of merits as the grounds of appeal (as reproduced in paragraph-6) does not contradict the fact of signature of P.O. and nor it is claimed as forged. In facts and circumstances of this case, it was found that Revenue has not made out any case against the order of the First Appellate Authority.

It was concluded that the order of the First Appellate Authority is correct, legal and does not suffer from any infirmity.
 
Decision:-Appeal rejected.

Comment:- The analogy drawn from the case is that merely because the original copy of warehousing certificate was not produced, it would not lead to conclusion that there was clandestine removal of goods. If the fact of receipt of goods by the consignee is sufficiently established by the consignor with appropriate evidences, no duty demand can be fastened upon the consignor for not producing the warehousing certificate. This clearly implies that the procedural lapses are to be condoned if the substantial conditions have been satisfied.

Prepared by: Hushen Ganodwala
 

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