Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2309

Whether second SCN issued for period prior to date of visit by officers can be issued by invoking extended period?

Case:-COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, AHMEDABAD Vs M/s AMBICA INDUSTRIES
 
Citation:-  2014-TIOL-1294-CESTAT-AHM

Brief facts:-This appeal has been filed by the Revenue against the OIA No. 111/2006(Ahd-I) dated 29.6.2006 passed by Commissioner (Appeals), Ahmedabad by holding that extended period for demanding duty for the period 1999-2000 can be invoked while issuing a second show cause notice when extended period has been invoked for the earlier period 1998-99 on the same issue.
 
Appellant’s contention:- Shri Manoj Kutty, A.R. (AR) appearing on behalf of the Revenue argued that the period involved in both the show cause notices is prior to the date of visit by the officers on 29.06.2000 and it is incorrect to say that extended period has been invoked for a period after the date of knowledge of the departmental officers. He argued that though the period 1999-2000 and 2000-2001 is indicated in Para 3 of the show cause notice dated 08.8.2003 but as per annexure 'A' & 'B' to this show cause notice only period up to March 1999 was covered in the first show cause notice. The period involved in the show cause notice dated 27.04.2004 is also prior to the date of visit of the officers (29.06.2000) and as per Annexure 'C' to the statement of Shri Pramodbhai Amin, Proprieter of the appellant recorded on 19.12.2003. Learned AR relied upon the following case laws:-
 
(a)  Uniworth Textiles Limited vs. CCE, Nagpur - [2009 (244) ELT 401 (Tri. Delhi.)] = 2009-TIOL-648-CESTAT-DEL
(b)   Hi-tech Needles (P) Limited vs. CC, Allahabad - [2012 (279) ELT 461 (Tri. Del.)] = 2012-TIOL-426-CESTAT-DEL
(c)   CCE Ahmedabad III vs. Aksar Chem (I) Limited - [2013 (292) ELT 550 (Tri. Ahmd.)
 
Respondent’s contention:-None appeared on behalf of the respondent during the hearings fixed on 03.07.2013, 29.01.2014 and 07.02.2014. However, written submissions filed by the advocate of the appellants available on record are considered. It is the case of the respondent that clearance figures for the period 1999-2000 and 2000-2001 were known at the time of issue of first show cause notice as per Para 3 of the show cause notice dated 08.08.2003 and no new fact has been collected by the Revenue. Therefore, second show cause notice invoking extended period cannot be issued for the period after 1998-99.
 
Reasoning of judgment:-Heard learned AR and perused the records of the case. From the facts available on record it is observed that both the show cause notice are issued invoking extended period and pertain to the period prior to visit of the Central Excise officers on 29.6.2000. It is not the case in the present proceedings that subsequent show cause notice is issued for the extended period after the visit of the Central Excise officers for the same facts as was the case before the Apex Court in the case of Nizam Sugar Factory vs. CCE [2006 (197) ELT 465 (SC)] = 2006-TIOL-56-SC-CX, which will thus not be available to the present proceedings. This view is also fortified by the observations of CESTAT Delhi made in the case of Hi-Tech Needles (P) Limited vs. CCE Allahabad (supra) as follows:-
 
 We have considered the arguments on both sides. We find that the decision of Nizam Sugar Mills (supra) is not applicable to the facts of the case. In that case the second demand was for a period after the issue of first SCN. During investigation for issue of this SCN the full facts were made known to the department. In this case the second demand is for a period prior to the period covered by the first SCN. The second SCN is based on records obtained from the Appellants later. When there is suppression and clandestine manufacture the outer limit for issuing SCN is five years from the relevant date. The SCN is issued within this outer period. The decision in Nizam Sugar is being wrongly interpreted that the Revenue is bound to issue only one SCN invoking suppression irrespective of the nature of the period involved. The decision in Nizam Sugar is very much Consistent with legal provisions and common sense. The interpretation of the decision that is canvassed is not consistent with legal provisions and common sense. So the plea on time bar is rejected."
 
In view of the above observations second demand show cause notice, also for the period prior to the date of the visit of the officers, can not be considered as time barred when the same is issued within a period of five years from the 'relevant date' as per the provisions of Section 11A of the Central Excise Act, 1944. Appeal filed by the Revenue is accordingly allowed and order of the Adjudicating authority is restored.
 
Decision:-Appeal allowed.

Comment:- The essence of this case is that the decision of Nizam Sugar Factory cannot be followed for issue of every second show cause notice and the facts and circumstances of particular case are to be examined. The basic theme of Nizam Sugar Factory case is that second show cause notice cannot be issued by invoking extended period of limitation if the facts were in knowledge of the revenue department. However, the facts of the reported case were different as in the present case, the second show cause that was issued also pertained to period prior to the date of visit of officers. Hence, it could not be concluded that second show cause notice cannot be issued by invoking larger period of limitation otherwise it will mean that second show cause notice is always to be issued within a period of one year.

Prepared by: Lovina Surana

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