Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2348

Whether ordering pre deposit proper if credit was denied for reason that it was taken on improper documents?

Case:- MEDICARE SERVICES (INDIA) PVT. LTD. V/S CESTAT, KOLKATA
 
Citation:- 2014 (303) E.L.T. 490 (Cal.)
 
Brief facts:-The brief facts of the case is that by the impugned order, the CESTAT disposed of two applications namely, an application for correction and/or rectification of the mistakes as well as an application seeking waiver of the deposit of duty to maintain the appeal.
 
So far as the first order is concerned, the petitioner is not aggrieved as the CESTAT has allowed the said application permitting the petitioner to amend and/or rectify the mistakes. But so far as the second application is concerned, the CESTAT has directed the deposit of 25% of the service tax amount and 10% of Cenvat credit amount within eight weeks.
 
Though the petitioner claims that the services so provided falls under the heading “services by club or association” but the assessing authority at the time of passing the assessment order held that the said services are coming under the head “insurance auxiliary services”. Precisely, the aforesaid dispute is a subject matter of an appeal before the CESTAT which is yet to attain finality. On perusal of the impugned order this Court finds that the CESTAT had disposed of the said application seeking waiver of the deposit of duty on plea that the Cenvat credit claims by the petitioner on the basis of the document which is not prescribed. 
 
Appellant’s contentions:-The learned advocate appearing for the petitioner submits that the technicality should not stand in the way of dispensation of justice, if the other materials and documents availed with the authorities justify the credit to be availed by the assessee  and placed reliance upon judgments of the tribunal at Delhi in case of Cosmos Casting India Ltd. V. Commissioner of Central Excise, Raipur reported in 2011 (23) S.T.R. 44 and in case of Wichitra Auto Ltd. V. Commissioner of Central Excise, Chennai- II reported in 2012 (284) E.L.T. 231.
 
The petitioner further submits that one of the criteria for the undue hardship is a financial incapacity and the tribunal has not recorded any finding on such aspect. In support of the aforesaid contention, reliance is placed upon a Co-ordinate Bench decision of the Court in case of Amitava Saha v. CESTAT reported in 2007 (215) E.L.T. 173 (Cal.).
 
Respondent’s contentions:-The respondent authorities, however, submit that the petitioner was, in fact, providing “insurance auxiliary services” and not the “services by club or association” and therefore, the Cenvat credit which they availed was rightly reversed by the assessing authority. It is further submitted that considering the facts and documents produced before tribunal, the tribunal it self granted the waiver to the extent of 75% and 90% against the service tax amount and the Cenvat credit respectively and the said order should not be interfered with.
  
Reasoning of judgment:- After hearing the respective submissions, it appears that the CESTAT had proceeded to dispose of the aforesaid application filed by the petitioner on the plea that the petitioner was allowed the Cenvat credit on the basis of the documents which are not prescribed under 9(1) of the Cenvat Credit Rules, 2004.
 
Although the Tribunal recorded that it has considered the financial hardship but there is no finding of facts recorded therein. There is no dispute to the proposition that if there is a prescribed method for availing the Cenvat credit the same are to be adhered to and followed. But it is equally true that technicalities should not stand in the way of dispensation of the justice if the necessary ingredients required for availing of such credit under the prescribed forms are otherwise available. It cannot be decipher either from the findings recorded by the CESTAT nor from the department side that the documents on which the Cenvat credit was availed is not sufficient to grant such credit. Though the judgments rendered by the Tribunal does not bind this Court but the same may have persuasive value. The tribunal in this aspect, as it appears from the aforesaid reports, consistently held that if the particulars are contained in the documents as required to be done as proviso to sub-rule (2) of rule 9, this will not deny the Cenvat credit on hyper technicalities. This Court must record that the Tribunal must record the reasons either for allowing the waiver or refusal to waiver on the materials as well as the pleadings made before it. Mere quoting the provision does not absolve the Tribunal from its responsibility and obligation to record the reasons on each and every issue that has been raised before it. Since this Court finds that the application seeking waiver is disposed of solely on the ground that the availability of Cenvat credit on the basis of documents not prescribed under sub-rule (1) of rule 9 of the Cenvat credit rules, 2004 this Court, therefore, finds that the said order suffers from illegality and/or infirmity.
 
This Court, therefore, quash and set aside the portion of an order dated 7-10-2013 by which an application seeking waiver of deposit of duty is disposed of. The Tribunal is directed to consider the said application afresh and while doing so, shall also take into consideration the pleadings as well as the documents relied on or sought to be relied on provided the same is otherwise permissible under the procedural law, by recording the reasons thereupon in accordance with law. The entire exercise shall be completed by the Tribunal within three weeks from the date of communication of this order.
 
It is needless to mention that this Court has no occasion to go into the merits of the said application filed by the petitioner and the Tribunal shall be free to decide the same independently and without being influenced by any observation made herein in accordance with law.
 
Decision:- The petition disposed off.
 
Comment:- The analogy of the case is that when it is settled position that the benefit of Cenvat credit cannot be denied solely for procedural lapses. Hence, ordering pre-deposit for denial of credit due to the reason that the documents on the basis of which credit was taken were not prescribed under rule 9(1) of Cenvat Credit Rules, 2004 suffers from illegality, infirmity. Moreover, inspite of the fact that there was financial difficulty, the High Court opined that the Tribunal should reconsider the stay application afresh.
 
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