Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2423

Whether registration applied by owner be rejected on the grounds that the predecessor lessee has excise dues pending?
Case:-M/s ARMAGAL TEA ESTATES COMPANY (P) LTD Vs THE ASST COMM. OF C.E. COONNOOR DIVISION, METTUPALAYAM
 
Citation:-2014-TIOL-2027-HC-MAD-CX
 
Brief fact:-In this Writ Petition, the petitioner seeks for issuance of a Writ of Certiorarified Mandamus, to quash the order in C. No . IV/07/22/2009-Cx Po dated 12.09.2011 of the respondent and direct the respondent to grant registration to the petitioner based on his application bearing number AACCA4407AEM001 dated 29.07.2011.
 
The petitioner is a private limited company established in the year 1977 for the purpose of manufacturing and selling of tea. The petitioner entered into a lease agreement with three persons namely, Mr. Jayachandran , Mr. Sadhiq and Mr.Sathyamoorthy and those persons are said to have registered with the Central Excise Authorities in Sr. No.7/96 dated 02.12.1996 bearing ECC Code- 2586010984. Abruptly, those lessees abandoned the factory and so the petitioner was unable to run the business and the whereabouts of the lessees were not known. Therefore, with a view to commence business activities, the petitioner submitted an application 22.07.2009 for registration in Form A-1. The said application was not processed and therefore the petitioner had sent a representation on 23.08.2011. Ultimately, by order dated 12.09.2011 the petitioner's application for registration was rejected stating that an amount of Rs.18 ,72,299 /- is pending as arrears from the previous registrant and as per Section 11 of Central Excise Act 1944 the liability of paying the arrears of the predecessor falls on the successor and the petitioner being the successor has to remit the arrears payment and issuance of registration certificate would be considered after payment of arrears. The said order dated 12.09.2011 is impugned in this Writ Petition.
 
Appellant’s contention:-Learned counsel for the petitioner submitted that the writ petitioner is the owner of the factory and what was leased out is only the factory premises and the registration obtained by the lessees were in their name and therefore they alone is liable to pay any amount that is due to the department. Further, it is submitted that the whereabouts of the lessees were not known and merely because the registration certificate obtained by them were not surrendered and they have not cleared the central excise dues, it is not ground to deny granting of registration to the petitioner, as he is the rightful owner of the premises.
 
Learned counsel for the petitioner also placed reliance on the decision of the Hon'ble Division Bench of Bombay High Court in the case of TATA Metaliks Ltd. vs. Union of India reported in 2009 (234) ELT 596 ( Bom ) = 2008-TIOL-140-HC-MUM-CX and contended that the department had acted without jurisdiction in refusing to grant registration on the plea that previous licensee has not applied for de-registration and in the absence of specific power to deny registration. Further, learned counsel referred to the decision of the Hon'ble Supreme Court in the case of State of Karnataka & Anr. vs. Shreyas Papers P. Ltd. & Ors., reported in CDJ 2006 SC 086 = 2006-TIOL- 01-SC-CT, for the real meaning of 'business' and 'ownership of business' as provided under section 15 (1) of Karnataka Sales Tax Act. Further learned counsel for the petitioner referred to the decision of this Court in the case of Sri Jagajothi Co. Ltd. vs. Commissioner of Central Excise, Tirunelveli reported in 2011 (268) ELT 164 (Mad), stating that only if there is transfer of business or trade which effects any change in ownership thereof, and in consequent thereof one succeeds in such business, such person is liable to pay dues under proviso to Section 11 of the Act. Learned counsel also referred to the decision of Hon'ble Supreme Court in Rana Girders Ltd. vs. Union of India & Ors. reported in CDJ 2013 SC 694 = 2013-TIOL-39-SC-CX, wherein it has been held that where the buyer had purchased the entire unit i.e. entire business itself he would be responsible to discharge the liability of Central Excise and the proviso to Section 11 was added w.e.f. 10.09.2004 is not applicable for liability arising before that date. With the above submissions, learned counsel seeks to quash the above proceedings.
 
Respondent’s contention:-Learned Senior Standing Counsel appearing for the respondent by referring to the counter affidavit submitted that the lessee had stopped production activities and abandoned the premises and the whereabouts of Mr. S. Jayachandran and Mr. S. Sathyamurthy were not known and the other lessee is the Managing Director of M/s. Yedakadu Tea Manufacturing Co. Pvt., Yedakadu , Nilgiris District and efforts have been taken to release the arrears of payment which resulted in futile. In the meantime, the petitioner applied for fresh Registration Certificate and the same was rejected on the ground that the previous Registration Certificate has not been surrendered and the earlier dues have not been cleared. The same is reiterated in the other paragraphs of the counter affidavit also and it is also submitted that without surrendering the previous Registration Certificate and without effecting payment of arrears, the question of issue of fresh Registration Certificate would not arise. In this regard, records were produced to show that an Order-in-Original dated 23.03.2005 has been passed in the name of the company, wherein an amount of Rs.8 ,35,829 /- has been claimed as basic excise duty apart from claim of cess and penalty.
 
Reasoning of judgment:-After hearing learned counsel for the parties and perusing the material placed on record, the following points arise for consideration. Firstly, whether the respondent is justified in passing the impugned order to clear the dues of the predecessor without affording an opportunity of hearing to the petitioner. Secondly, whether the petitioner could be called upon to pay the dues liable to be paid by his lessees as a condition precedent to issue fresh registration certificate. Admittedly, the registration stood in the name of three persons, who are the lessees and even according to the department, two of them are absconding and one of them who is the Managing Director, is unable to recover the dues. Therefore, they caught hold of the petitioner, when he applied for fresh registration certificate. Hence, the respondent has passed a non speaking order without affording an opportunity of hearing to the petitioner, rejecting his claim. When the department having recognised those three as lessees, cannot claim the amount payable by them from the petitioner. If they are not recognised as lessees then the question is different. From the records produced it is seen that the name of three persons, in whose name registration certificate has been granted and they have been described as lessees of the tea factory. Therefore, if an opportunity for personal hearing had been granted to the petitioner, he would have placed all the records including the decisions relied on stating that the liability left behind by lessees cannot be fastened on the petitioner, when he seeks for a fresh registration certificate in the capacity of owner of the factory. Since on the first ground itself this Court is convinced, that the petitioner has not been afforded with a reasonable opportunity, the petition is entitled to be allowed. In the light of the above, the second question need not be gone into since that would require examination of the facts and this should be done by the second respondent after issuing a show cause notice to the petitioner.
 
In the result, the writ petition is allowed and the impugned proceedings is quashed and the respondent is directed to issue a show cause notice clearly stating as to the names under which registration was granted and how the respondent is claiming the sales tax dues alleged to have been defaulted by the lessees and on receipt of the show cause notice, the petitioner is entitled to submit his reply, after affording an opportunity of personal hearing to the petitioner, the respondent shall pass orders on merits and in accordance with law. During the course of enquiry, the petitioner is entitled to produce all the documents including the judgements relied upon. The said proceedings shall be completed by the respondent, within a period of four months from the date of receipt of a copy of this order. No order as to costs.
 
Decision:-Petition disposed of.

Comment:-The analogy of the case is that the application for excise registration cannot be rejected without issuing show cause notice and without affording opportunity of personal hearing to the applicant. Therefore, the writ petition was allowed on this ground alone and matter was remanded for consideration by the adjudicating authority.
 
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