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 Laws/2012-13/1021

whether non-consideration of question justified on ground that issues dealt with in detail by Tribunal and therefore, no further examination done of matter
Case:  CHANDNA IMPEX PVT. LTD. v/s COMMISSIONER OF CUSTOMS, NEW DELHI
 
Citation: 2011 (269) E.L.T. 433 (S.C.)
 
Issue:- Appeal to High Court under Section 130 of the Customs Act, 1962 – questions referred as substantial questions of law – whether non-consideration of question justified on ground that issues dealt with in detail by Tribunal and therefore, no further examination done of matter?
 
SCN issued by DRI for customs violation – whether DRI proper officer under the Act to issue SCN – matter remanded to HC for consideration in view of judgment of Supreme Court in Sayed Ali & Anr.

Brief Facts:- Appellant, a body corporate, was engaged in the business of import of plywood, inlays, MDF laminated boards and veneer sheets etc. On 22.03.2000, one of the directors of appellant, namely, Rakesh Chandna, was apprehended by officers of Customs department at Calcutta Airport. He was found in possession of US $ 45,000/- and Indian currency of 9,000/-, along with several incriminating documents, which fuelled further follow up action by the Directorate of Revenue Intelligence (DRI). On 23.03.2000, in search operations, certain goods were seized from appellant’s premises, as no documentary evidence was allegedly produced for their legal acquisition. The value of goods so seized was determined at Rs. 24, 26, 234/-.

Statements of Rakesh Chandna and one Sanjeev Murgai, Manager of appellant and also of some other persons were recorded, which revealed that goods imported by appellant viz. plywood, MDF boards and veneers etc. had been under-valued. Based on the incriminating documents recovered during the course of investigation, a show cause notice dated 16.03.2001 was issued to appellant by DRI under Section 124 of the Act, detailing the Bills of Entry, wherein there was misdeclaration of quantity/description and value of goods. Demand of duty, confiscation of goods and imposition of penalty were proposed in the show cause notices.

The Commissioner of Customs (Import & General) vide order dated 17.09.2004 ordered confiscation of goods valued at Rs. 3,04,98,365/- under Section 111 of the Act; confirmed the demand, amounting to Rs. 1,45,85,446/- under Section 28AB of the Act, besides levying a penalty, amounting to Rs. 1,45,85,446/- under Section 114A of the Act on appellant. The Commissioner also levied personal penalty of Rs. 10 lakh and Rs. 5 lakh on Rakesh Chandna and Sanjeev Murgai respectively.

Being aggrieved, appellant preferred an appeal to the Tribunal, which was dismissed vide order dated 26th-27th June, 2007. The appellant filed further appeal under Section 130 of the Act before the High Court raising questions, stated to be substantial questions of law, for opinion of the High Court. The High Court dismissed appellant's appeal under Section 130 of the Act on the ground that no substantial question of law arose.

Hence, appellant is before the Supreme Court.

Appellant’s Contention:- Appellant contended that the High Court has committed a manifest error of law in dismissing the statutory appeal in limine by a non-speaking order and therefore, the case deserves to be remitted back to the High Court for decision on merits of the questions proposed in the appeal. Further they argued that all the questions, raised by them in their appeal are substantial questions of law and therefore, the High Court ought to have examined each one of the questions so framed instead of dismissing the appeal by a cryptic order, by merely observing that the Tribunal has dealt with each and every argument urged on behalf of the appellant and they were in agreement with the reasons recorded by the Tribunal.

Respondent’s Contention:- Revenue argued that the impugned order deserves to be affirmed as the questions now proposed in this appeal are pure questions of facts. He submitted that in so far as the question of jurisdiction of the Adjudicating Authority is concerned, no such issue has been raised in the present appeal.

Reasoning of Judgment:- The Supreme Court held that there is some merit in the submission of the appellant that while dealing with an appeal under Section 130 of the Act, the High Court should have examined each question formulated in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and given its reasons for holding that question is not a substantial question of law. It needs to be emphasized that every litigant, who approaches the court for relief is entitled to know the reason for acceptance or rejection of his prayer, particularly when either of the parties to the lis has a right of further appeal. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums.

Reliance was placed on decision in State of Orissa Vs. Dhaniram Luhar [(2004) 5 SCC 568] wherein it was held that “Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made”.

The Supreme Court held that it was thus, expected of the High Court to record some reason, at least briefly, in support of its opinion that the order of the Tribunal did not give rise to any substantial question of law. Referring to Section 130 of the Act, it was noted that the language of the section contemplates that on filing of an appeal under the said Section either by the Commissioner of Customs or the other party aggrieved, the High Court has to record its satisfaction as to whether or not the case involves a substantial question of law.

It was held that in instant case, it is clear from the order of the High Court that it does not meet the requirement of stating reasons for coming to the conclusion that order of the Tribunal did not give rise to any substantial question of law.
 
On the issue of remitting back the matter to the High Court to decide, the Supreme Court noted that it is required to see if questions raised by appellant in their application under Section 130 of the Act were substantial questions of law arising from the order of the Tribunal?

The Supreme Court noted that a bare reading of the six questions viz. (b) to (g) show that none of the questions can be said to be a substantial question of law, in as much as they do not proceed on the premise that decision of the Tribunal on issues raised therein is perverse, in the sense that the findings of fact, arrived at by the Tribunal are not based on the material placed before it or that the relevant material has been ignored by it. It is trite law that a finding of fact may give rise to a substantial question of law, inter-alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

Reference was made to decisions in West Bengal Electricity Regulatory Commission Vs. CESC LTD [(2002) 8 SCC 715]; Metroark Ltd. Vs. Commissioner of Central Excise, Calcutta [(2004) 12 SCC 505]; Commissioner of Customs (Preventive) Vs. Vijay Dasharath Patel [(2007) 4 SCC 118]; Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi [(2009) 3 SCC 287];

It was noted that in Hero Vinoth (Minor) Vs. Seshammal [(2006) 5 SCC 545], referring to the Constitution Bench decision of this Court in Sir Chunilal V. Mehta Sons Ltd. Vs. Century Spinning  Manufacturing Co. Ltd [AIR 1962 SC 1314] as also a number of other decisions on the point, this Court culled out three principles for determining whether a question of law raised in a case is substantial. One of the principles so summarised is that “The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding”.

The Supreme Court was of the opinion that the order of the Tribunal, wherein the material referred to by the Commissioner in his order has been extensively analysed, does not give rise to the five questions, proposed by the appellant in this appeal, as questions of law, much less substantial questions of law. It would bear repetition that none of the said questions seek to challenge the findings of the Tribunal or that of the Commissioner, on the issue raised in the questions, as perverse. It is not within the domain of the High Court, in appeal under Section 130 of the Act, to investigate the grounds on which the findings were arrived at by the Tribunal, the final court of fact. In that view of the matter, it was not considered it to be expedient to remit the case to the High Court, in so far as these five questions are concerned.

However, the question which still survives for consideration is that the appellant having raised the question of jurisdiction of the DRI issuing the show cause notice as also the Commissioner of Customs passing the order of adjudication, in its appeal before the High Court and the High Court having failed to apply its mind as to whether or not it was a substantial question of law, the appellant is barred from raising the said issue before the Supreme Court in this appeal.

The Supreme Court opined that the said issue is a substantial question of law, and requires to be examined afresh particularly in light of the decision of this Court in Sayed Ali & Anr where the question as to who is a “proper officer” in terms of Section 2(34) of the Act has been examined.

The Supreme Court considered the residual question that whether, in the first instance, the High Court should be asked to examine the question relating to the jurisdiction of the Adjudicating Authority or to remit the matter to the Tribunal to reconsider the issue in light of the recent decision of this Court in Sayed Ali & Anr, wherein the decision of the Tribunal in Konia Trading Co. Vs. Commissioner Of Customs, Jaipur [(2004) 170 E.L.T. 51 (Tri-LB)], relied upon by the Tribunal in the present case, has been considered. The Supreme Court was of the opinion that in order to avoid prolongation in the life of lis between the appellant and the revenue, it would be expedient to follow the latter option, because ultimately the High Court may also like to have the views of Tribunal on the impact of the said decision of this Court on the facts of the present case, since the said decision, was not available to the Tribunal when the appeal of the appellant was decided by it.

Impugned order of the High Court set aside. Matter remanded to the Tribunal for fresh adjudication, confined to the question of jurisdiction of the Adjudicating Authority to pass order dated 17.09.2004 after affording adequate opportunity of hearing to both the parties.

 
Decision:- Appeal partly allowed.
 
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