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 /2016-17/3369

whether Refund of 4% SAD allowed when the certificate of Chartered Accountant is by onetime chartered accountant?
Case:- COMMISSIONER OF CUSTOMS, PATNA Versus M.S. METALS
 
Citation:-2016 (342) E.L.T. 241 (Tri. - Kolkata)
 
Issue:- whether Refund of 4% SAD allowed when the certificate of Chartered Accountant is by onetime chartered accountant?
 
Brief facts:- This appeal was filed by the Revenue against Order-in-Appeal No. 80/PAT/Cus/Appeal/2011, dated 29-4-2011 passed by the Commissioner (Appeals) of Customs & Central Excise, Patna as first appellate authority. Under this Order-in-Appeal dated 29-4-2011 first appellate authority had dismissed the appeal filed by the Revenue before him. Shri S.K. Naskar, AC (AR) appearing on behalf of the Revenue argued that a refund claim of Rs. 4,34,759/- (Rupees four lakh thirty-four thousand seven hundred and fifty-nine only) was sanctioned by Deputy Commissioner, LCS, Jogbani to the respondent under Order-in-Original No. 01/Refund/ Jogbani/2010, dated 15-3-2010 under Notification No. 102/2007-Cus., dated 14-9-2007 against which Revenue filed appeal with Commissioner (Appeals), who vide Order-in-Appeal dated 29-4-2011 dismissed the appeal of the Revenue against which the present appeal has been filed by the Revenue. Ld.
 
Appellant’s Contention:- Authorised representative appearing on behalf contested  that respondent herein produced a copy from Chartered Accountant, who was not a regular Chartered Accountant of the respondent. That as per Para 2(vii) of C.B.E. & C. Circular No. 16/2008-Cus., dated 13-10-2008, such a certificate should be from the regular Chartered Accountant of the respondent and not their new Chartered Accountant. That in the absence of proper Chartered Accountant certificate, conditions of Notification No. 102/2007-Cus. Dated 14-9-2007 was not fulfilled and refund claim was wrongly sanctioned by the adjudicating authority and upheld by the first appellate authority.
 
Respondent’s contention:- Shri Manmohan Gupta (Advocate) appearing on behalf of the respondent contested that exemption Notification No. 102/2007-Cus., dated 14-9-2007 does not prescribe whether the Chartered Accountant certificate should be from a regular Chartered Accountant or a new Chartered Accountant. It was the case of the respondent that new Chartered Accountant was not an independent Chartered Accountant, but a new Chartered Accountant appointed for the purposes of auditing their records. Ld. Advocate made the Bench go through the last para, on page 15 of the appeal papers, to emphasize that their earlier Chartered Accountant was residing in Delhi and sometimes resided abroad and was not able to give respondent enough time. Therefore respondent was compelled to appoint a new Chartered Accountant, who was partner of M/s. SARR & Associates, as their regular Chartered Accountant, who would certify their annual financial records. Hence adjudicating authority while sanctioning refund claim had examined all the documents justifying fulfilment of conditions under clause 2 of Notification No. 102/2007-Cus., dated 14-9-2007. It was the case of the respondent that refund was correctly sanctioned by the adjudicating authority and Revenue’s appeal had been correctly rejected by the first appellate authority.
 
Reasoning of judgment:- The issue involved in the present appeal was of refundof 4% SAD paid by the respondent at the time of import and subsequently refund claim was filed under Notification No. 102/2007-Cus., dated 14-9-2007. Adjudicating authority while sanctioning the refund claim found all the conditions of Notification No. 102/2007-Cus., dated 14-9-2007 as fulfilled. Commissioner (Appeals) had also held that the conditions specified in this notification are complied with by the respondent. Revenue filed this appeal only on the ground that as per Para 2(vii) of C.B.E. & C. Circular No. 16/2008-Cus., dated 13-10-2008, Chartered Accountant certificate should be provided from the regular Chartered Accountant of the claimant. It was observed from the relevant para of C.B.E. & C. Circular dated 13-10-2008 that the same does not use the words ‘regular Chartered Accountant’, but only clarifies that certificate given by any other independent Chartered Accountant would not be acceptable for the purpose of 4% SAD refunds. In the case of the respondent, the earlier Chartered Accountant was residing in Delhi and was also frequently going abroad and respondent was not in a position to get enough time from the earlier Chartered Accountant. Respondent accordingly appointed a new Chartered Accountant, who became regular Chartered Accountant and cannot be considered as a onetime independent Chartered Accountant giving a certificate. Under the circumstances it cannot be said that the new Chartered Accountant appointed by the respondent was a onetime independent Chartered Accountant. In view of the above Order-in-Appeal dated 29-4-2011 passed by the first appellate authority was upheld and the appeal filed by the Revenue was dismissed.
 
Decision:- Appeal dismissed.
 
Comment:- the essence of this case is that for claiming refund of SAD under exemption notification No. 102/2007-Cus., dated 14-9-2007 certificate of onetime chartered accountant is not valid as stated in Board circular dated 13-10-2008. But as in the case assessee their regular chartered accountant resided elsewhere therefore the new charted accountant, partner of regular chartered accountant, was appointed for certifying annual records and same had certified the refund. As the appointment was for certifying the annual records and not just for claiming refund therefore refund was correctly sanctioned.
 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