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/2015-16/2566

Whether monetary limit for filing appeal to Tribunal applicable for service tax?

Case:- INDOWORTH (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR

Citation:- 2012 (25) S.T.R. 98 (Tri. - Mumbai)
 
Brief facts:- The basic issue that is to be resolved in the present appeal is that whether the provisions of monetary limit for filing appeal to the Tribunal as contained in section 35B of the Central Excise Act, 1944 is applicable for appeals filed under service tax. The section 35B of the Central Excise Act gives the power to the Tribunal to refuse to admit an appeal if the duty involved in the appeal is less than Rs. 50,000 (limit enhanced to Rs. 2,00,000 w.e.f. 06.08.2014). In Contrast, section 86(7) of the Finance Act pertaining to Appeals to Appellate Tribunal states that “Subject to the provisions of this chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944. It is worth noting that section 83 of the Finance Act making applicable certain provisions of Central Excise Act, 1944 to the service tax laws does not has mention of section 35B of the Central Excise Act, 1944. Therefore, the question arises that whether the monetary limit to file appeal to Tribunal is also applicable to service tax or not.   
 
Appellant’s contention:-The learned counsel for the appellant refers to the provisions of Section 86 of the Finance Act, 1994 and those of Section 35B of the Central Excise Act, 1944 and submits that there is no provision similar to the second proviso to sub-section (1) of Section 35B ibid under Section 86 ibid and, therefore, in respect of a service tax appeal coming within the jurisdiction of Single Member, the Bench has no discretion to refuse to admit the appeal. In this connection, the learned counsel relies on the Tribunal’s decision in Asiatic Enterprises v. Commissioner - 2007 (5)S.T.R.93 (Tri. - Kolkata) = 2008 (224)E.L.T.406 (Tri. - Kolkata).

Respondent’s contention:-The learned JDR has endeavoured to derive the power for this Bench to refuse admission to the present appeals, from sub-section (7) of Section 86 of the Finance Act, 1994.
 
Reasoning of judgment:-They find that the learned counsel has stated the legal position correctly. In the case of a Central Excise appeal coming within the jurisdiction of a Single Member, there is a discretion to refuse to admit the appeal, in the factual situation covered by the second proviso to sub-section (1) of Section 35B of the Central Excise Act. A similar provision is not available under Section 86 of the Finance Act, 1994. Sub-section (7) of Section 86, relied on by the learned JDR is reproduced below :
 
“(7) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same power and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the (Central Excise Act, 1944) (1 of 1944).”
 
It has been argued that, by virtue of the above provision, the Appellate Tribunal (Single Member) can exercise the same power and follow the same procedure as it exercises under the second proviso to sub-section (1) of Section 35B of the Central Excise Act. This argument of the learned JDR is not sustainable for two reasons. Firstly, Section 35B of the Central Excise Act is not one of the provisions specified in Section 83 of the Finance Act for applicability to service tax appeals. Secondly, sub-section (7) of Section 86 of the Finance Act, 1994 purports to authorize the Appellate Tribunal to exercise the same powers and follow the same procedures as it exercises and follows in hearing the appeals and making orders under Central Excise Act, 1944 in the matter of hearing appeals and making orders in Service Tax cases. The phrase ‘hearing the appeals and making orders’ appearing in sub-section (7) of Section 86 ibid is significant for its import. It would mean that the provision is applicable to the context of hearing a service tax appeal on merits and passing orders thereon. Obviously, sub-section (7) of Section 86 ibid authorizes the Tribunal to adopt the provisions of Section 35C of the Central Excise Act, for the purpose of hearing and making orders on service tax appeals. They find that the same view has been taken by the learned Single Member in the case of Asiatic Enterprises (supra).

The present appeals, therefore, do not require admission. At this stage, the learned counsel for the appellant submits that three more appeals of the same party viz appeal Nos. S.T./91, 108 and 268/10 are pending before this Bench. They told that, in all the appeals, a common issue is involved (refund). The present appeals shall, therefore, be clubbed with the above three appeals mentioned by the learned counsel for the purpose of final hearing.
 
Decision:- Appeal allowed.
 
Comment:- The analogy of the case is that the provision of section 86(7) of the Finance Act cannot be interpreted to mean that the monetary limit prescribed for filing appeals to the Tribunal under section 35B of the Central Excise Act, 1944 also apply to service tax appeals. The provision of section 86(7) only refers to application of the provisions of section 35C regarding orders of the Appellate Tribunal to the service tax laws.

Prepared by:- Monika Tak
 

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