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 Laws/2012-13/1336

Whether Order passed ex parte by the commissioner without giving any findings for not granting adjournment justifiable?


Case:- M/s Bindal Sponge LTD Vs Commissioner Of Central Excise Customs And Service Tax, Bhubaneswar-I
 
Citation:- 2012-TIOL-1751-CESTAT-KOL

Brief Facts:-Appellant are engaged in the manufacture of Sponge Iron, M. S. Ingots and Runner Riser falling under Chapter Heading No.72 of the Central Excise Tariff Act, 1985. Appellant was also availing CENVAT Credit on Capital Goods, Inputs and Input Service. Proceedings were initiated against them on the grounds that on nine occasions, they paid the duty by availing Cenvat Credit prematurely. Accordingly, Department has issued show cause notice for demand of duty amounting to Rs. 1,31,35,915/- along with a penalty under Rule 15 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. Commissioner has confirmed the proposal in the Demand­ cum-Show Cause Notice against the Appellant. Appellant had been afforded personal hearing to appear before the lower adjudicating authority consecutively on 7.12.2009, 8.12.2009, 10.12.2009 and 11.12.2009 by a single correspondence for which they seek adjournment but the order was passed ex parte without considering the appellant’s request. Appellant filed appeal against Order-in-Original before Tribunal.
 
Appellant Contentions:-Appellant submits that the issue has been decided without giving them an effective hearing by denying them the principle of natural justice. Appellant contended that they made a request for adjournment since their authorized signatory who was dealing with Central Excise matters, was on leave. Appellant further submitted a letter to that effect, seeking adjournment on 11.12.2009, which was duly acknowledged on the same day, however the impugned Order was passed on 18.12.2009 ex parte in utter disregard to their letter. Appellant contended that he had paid the total duty along with interest and they are now paying the duty regularly. Appellant further submits that the contention is that the only allegation against them was that they had availed the Credit of Duty prematurely, and the Commissioner had decided their case ex parte, without granting hearing and without considering the aspect that appellant had paid the total duty involved in this case along with interest due, on delay in payment of duty and imposed an equal amount of penalty. This is nothing but a grave breach of principle of natural justice. Appellant has relied on Tribunal’s decisions in the case of Meenakshi Associates(P) Ltd. vs. CCE, Noida reported in 2009 (245) ELT 362 (Tri.-Del.)  and the case of Jindal Waterways Ltd. vs. CC(Export) reported in 2009 (247) ELT 715 (Tri.-Mumbai).
 
Respondent Contentions:-Respondent reiterates that the findings of the learned Commissioner.
 
Reasoning of Judgment:-The Tribunal has perused the submissions made by both sides. Tribunal finds thata single notice of personal hearing issued on four consecutive dates on 07.12.2009, 08.12,20091 10.12.2009 and 11.12.2009, appellant had approached the learned Commissioner for adjournment on the ground that the person who was dealing with the Excise matters was on leave. Tribunal finds that the commissioner has decided the case without granting hearing in breach of principal of natural justice. Tribunal finds that in this matter mere failure of the learned Advocate to appear on 14-10-08 could not be a reason to proceed ex-parte. Besides on 11-12-09 an application was moved by the learned Advocate for postponement of hearing which was also acknowledged and is also a matter on record. Being so one fails to understand as to what prevented the authority from affording one more opportunity to the appellants of being heard in the matter. Viewed from this angle we find that the grievance of the appellants about failure on the part of the authority to comply with principles of natural justice is well justified. Tribunal also find that the appellant had requested for adjournment of the personal hearing afforded them, which was also acknowledged, however, the impugned Order was subsequently passed ex parte without giving any finding for not granting adjournment. Tribunal has accordingly allow the appeals and without expressing any opinion in relation to the merits of the case set aside the impugned order and remand the matters to Commissioner to decide afresh after hearing the parties.
 
Decision:- Appeal allowed by way of remand.
 
Comment:- This is yet another case laying the foundation that an order passed without considering the submissions made by the parties or without affording them opportunity of personal hearing is not relevant in the eyes of law on account of gross violation of the principles of natural justice.

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