Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3432

Whether manufacture of soap by using natural gas amounts to use of power?

Case-PEE CEE COSMA SOPE LTD. Versus COMMISSIONER OF CENTRAL EXCISE, KANPUR
 
 
Citation-2017 (345) E.L.T. 118 (Tri. - All.)
    
 
Brief Facts-The brief facts of the case are that the appellant PEE CEE CosmaSope Ltd., are engaged in manufacture and clearance of Laundry Soaps falling under Chapter Heading 3401 19 42 and Chapter Heading No. 3401.11 of the First Schedule to the CET Act. The appellant, who were earlier using wood fired furnace for heating the ingredients for manufacture of soap switched on to natural gas during the period under dispute being January, 2002 to February, 2006. Show cause notice dated 17-7-2006 was issued invoking the extended period of limitation as it appeared to revenue that the use of natural gas or gas for heating, in manufacture of the soap, is used of power for manufacturing and accordingly, the appellant is liable to pay Excise Duty on the soap manufactured by them.
 
 
Appellant’s Contention-The appellant appeared and contested the SCN along with other grounds and stated that it has been clarified by the C.B.E. & C. vide Circular F. No. B2/9/68-CX, dated 25-3-68, clarifying, the use of gas for heating cannot be treated as use of power in any process of manufacture of goods falling under Item 1-A. Tariff Item No. 1-A includes items namely confectionery, cocoa powder and chocolates, in or in relation to manufacture of which any process is ordinarily carried out without the aid of power. The reference is also made to another Circular of C.B.E. & C. F. No. B2/9/68-CX, dated 22-3-68, wherein also reference was made to the letter of Commissioner of Central Excise, Allahabad dated 5th March, 1968, wherein the ld. Commissioner had issued instructions ‘that the use of gas for welding steel, furniture parts will not be considered as use of power, is hereby confirmed’. It appears that insofar as electric welding is concerned, the State Government Authorities are responsible for the Administration of the factories, has treated as use of power in the process of manufacture. The Circular further refers to a reference made from Asst. Collector of Central Excise, Rampur who had enquired, whether - using gas for welding steel furniture parts should be considered as using power. He has been informed that use of gas in welding in steel furniture parts will not be considered as using of power. It was further clarified that in view of the definition of power given in the Factory Act, 1934, of the Government of India - ‘I presume that neither the gas welding nor electric welding of steel furniture parts will constitute use of power’.
 The SCN was adjudicated and the proposed demand was confirmed amounting to Rs. 9,40,43,236/- along with equal amount of penalty under Section 11AC read with Rule 25 of CCR. Further, confiscation of 111366 KG of Doctor Brand Laundry soap valued at Rs. 22,31,993/- seized on 24-1-2006, was also made with option to redeem on payment of redemption fine of Rs. 7 lakhs. Further, penalty of Rs. 1.00 lakh was imposed under Rules 25(b), (c) and (d) of CER, 2001-2002. Further, penalty of Rs. 5 lakhs was imposed on the Managing Director, Shri Mahendra Kumar Jain, penalty of Rs. 5 lakhs on Shri Anoop Kumar, Authorized Signatory of the party and also penalty of Rs. 5 lakhs on Shri Anil Kumar Jain, Factory Manager of the appellant.
 Being aggrieved, the company as well as the 3 persons are all in appeals against their individual penalties and the demand raised. The ld. Counsel for the appellant has taken us through the Circular F. No. B2/9/68-CX., dated 22-3-68 and 25-3-68, wherein it has been clarified by the C.B.E. & C. that the use of gas does not amount to use of power for the purposes of the Central Excise Act. The ld. Counsel also taken us through the dictionary meaning of the word “power” from Oxford Advance learner’s Dictionary of current English 6th addition, Chambers English Dictionary, Longman Dictionary of contemporary English. In all these dictionaries “power” has been defined as “electrical energy”. The ld. Counsel also points out that ld. Commissioner have misdirected himself as he has failed to refer to the C.B.E. & C. Circular and have not assigned any reason for differing with the same. The ld. Counsel further draws our attention to the ruling of Hon’ble Supreme Court in the case of MSCO Pvt. Ltd. v. Union of India - 1985 (19)E.L.T.15 (S.C.) wherein in the matter of interpretation, the Apex Court have observed - while construing a word in a statute or a statutory instrument in the absence of any definition in that very document, it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of this statute or the statutory instrument understand it. It is hazardous to interpret a word in accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject
 
Respondent’s Contention-The learned AR for the Revenue relies on the impugned order.
 
Reasoning Of Judgement-Having considered the rival contentions, the bench held that the ld. Commissioner had misconceived andmisdirected himself by concluding that the use of gas for heating of soap chemicals by the appellant’s industry, amounts to use of power. In view of the clarification given by C.B.E. & C. in their Circulars dated 22-3-68 and 25-3-68, bench founded that there was no reason for not following the same and drawing conclusion based on the definition in another Act, which is not cognate to the provisions of the Central Excise Act. In the facts and circumstances, it also held  that there is no contumacious conduct or suppression of the part of appellants, in order to evade payment of Central Excise duty. Accordingly, bench also held that the extended period of limitation is not available to the Revenue. Accordingly, bench set aside the impugned order and allowed the appeals. The appellant will be entitled to consequential benefits, in accordance with law, if any.
 
Decision-Appeal allowed
Comment-The kernel of the case is that in view of CBEC instructions F. No. B2/9/68-CX dt. 22.03.1968 and F. No. B2/9/68-CX dt.25.03.1968 it was clarified that the use of gas during manufacture is not to be considered as use of power. Revenue authorities are not justified in relying upon definition in another act not cognate to CEA, 1944, so the demand made by the revenue is not sustainable.Hence, appeal allowed.
 
Prepared By-Arundhatibajpai
 

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