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/2015-16/2650

Whether registration can be granted only when previous assessee has been deregistered?

Case:-MONOMER CHEMICAL INDUSTRIES LTD. VERSUSCOMMISSIONER OF C. EX., THANE-I
 
Citation:-2015 (316) E.L.T. 670 (Tri. - Mumbai)

Brief facts:-The appellant is in appeal against the impugned order wherein registration of Central Excise has been denied by the ld. Commissioner (Appeals).
The brief facts of the case are that the appellant purchased the premises in question from M/s. Akasha Syncotex Ltd. who initially was the lessee of the factory premises from MIDC. As M/s. Akasha Syncotex Ltd. closed the business from the said premises and applied for cancellation of Central Excise registration, the appellant being interested party for taking the said premises had entered into an agreement with M/s. Akasha Syncotex Ltd. and with due permission from MIDC, the factory premises got leased out in the name of the appellant. The appellant applied for registration under Central Excise Act for the product manufactured by them. A show cause notice was issued to deny Central Excise registration which was adjudicated and held in favour of the appellant that they are entitled for registration but on appeal by the Revenue to the Commissioner (Appeals) the registration granted to the appellant was denied. Aggrieved from the said order, the appellant is before tribunal.
 
Appellant’s contention:-The ld. Counsel appearing on behalf of the appellant submits that the Commissioner (Appeals) has relied on the decision of the Manibhadra Processors - 2005 (184)E.L.T.13and denied the registration. He submits that the fact that the said case was peculiar one and therefore, the Hon’ble High Court of Bombay exercising their power under writ jurisdiction had come to a conclusion that registration cannot be granted unless and until previous registration has been deregistered. He submits that the similar issue came up before the Hon’ble High Court of Bombay in Tata Metaliks Ltd. - 2009 (234)E.L.T.596 (Bom.)and in the case after considering the decision of Manibhadra Processors (supra) of their own Court, the Hon’ble High Court came to a conclusion that the registration can be granted and said decision has been affirmed by the Hon’ble Apex Court in 2010 (253) E.L.T. A51 (S.C.). He also relied on the decision of PMS Exports P. Ltd. - 2012 (285)E.L.T.82 (Tri.-Ahmd.).Therefore, he prayed that the impugned order is required to be set aside as they are entitled for Central Excise registration.
 
Respondent’s contention:-ld. AR opposed the contention of the counsel and submits that the fact of Tata Metaliks Ltd. are not similar to the facts of this case as the property was taken over by the financial institution and thereafter auction was taken place and the property was taken place by Tata Metaliks Ltd. Therefore, the said facts are not applicable to the facts of this case. He further submits that the facts of Manibhadra Processors are similar to the facts of this case, therefore, the order of Commissioner (Appeals) is required to be upheld.

Reasoning of judgement:-In the case ofTata Metaliks Ltd. (supra), the Hon’ble High Court has considered the issue and thereafter came to a conclusion in as under :
“A perusal of Section 6 makes it absolutely clear that who has to be registered is the prescribed person. Under the rules also, it is the person who has to get registered. The notification in Clause (2) only sets out that if such registered person has more than one premises, then each of such separate premises would require registration certificate for each of such premises. In other words, it is the person who has to obtain separate registration certificate for each of the said premises. It is open to a person who has ceased to carry on the business to apply for deregistration. Would that mean in the absence of the person who has closed or sold the business or premises, applying for deregistration, there is no jurisdiction to grant another person registration of the premises as in the case of a bona fide transferee for value or for that to the owner of the premises whose lessee has defaulted in payment of Excise dues. Section 6 and Rule 9 and the notification contemplates that it is the person who must be registered. Neither Section 6 nor Rule 9 and the Notification is a provision for enforcing the claim for dues of the department. That is contained in different provisions. An immovable property by itself cannot be sold unless the owner of the premises is defaulter and that too under a certificate as arrears of land revenue. That sale would be subject to the priority of claims. In case of a lease hold property given for a particular period, there would be no question of sale of the property except the limited interest. In our opinion, the case of bona fide transferee was not in issue in the case of M/s. Manibhadra Processors (supra) or the instances we have cited above. The Respondent No. 3 has, therefore, clearly acted without jurisdiction in refusing to grant registration on the specious plea that M/s. Usha Ispat whose assets has been sold and purchased by the Petitioners has not applied for deregistration. In the absence of a specific power to deny registration, the alternate would be whether there would be implied power. Neither Section 6 or Rule 9 or for that matter the notification confers such power. The right of revenue however, would subsist for recovery of dues both against the defaulter or the transferee if the predicates for recovery are met. An incidental aspect of the matter would be if the licence is for a particular period, on expiry of that period, the registration certificate would cease to be operative. In such cases, there would be no question of cancelling the certificate of registration.”
Although in the case, the property in question was taken by the assessee in auction done by the Financial institution, but the question remains whether the registration can be granted or not where in case the dues are pending against the producer of the premises holder. In the case of Manibhadra Processors (supra) the facts of the case are peculiar one as in the case it is a habit of the lessor to lease out the property to the lessee who defaulted the Central Excise payment and surrender the registration and thereafter another lessee came to the factory and also defaulted in Central Excise dues. If they consider the facts of the Manibhadra Processors (supra) in that case initial registration was granted and the registration holder defaulted thereafter another registration was granted which also defaulted. Therefore, in that case the Hon’ble High Court exercised their power in writ jurisdiction and stopped the granting of registration for misusing the factory premises. The issue came up before the Tribunal in PMS Exports P. Ltd. (supra), the facts of the said case are similar to the facts of the case in hand. In that case the Tribunal after considering the relevant provisions, which are incorporated in para 6 above and came to the conclusion that registration in similar facts can be granted.
Therefore, they do not find any merit in the impugnedorder, the same is set aside. The appeal is allowed with consequential relief.
 
Decision:-Appeal allowed.
 
Comment:- The analogy of the case is that the appellant was entitled to get registration in view of the decision of PMS Exports P. Ltd. - 2012 (285)E.L.T.82 (Tri.-Ahmd.)because in the present case, the previous assessee had applied for cancellation of registration and the factory premises was leased out in the name of the appellant.  
 
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