Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1149

Whether setting aside of order of Additional Commissioner could be ground for assessee not to file appeal before the Tribunal against the rejection of refund claim by Assistant Commissioner?
Case:- MINDA AUTOMOTIVE LTD VS COMMISSIONER OF CENTRAL EXCISE-DELHI-III
 
Citation: - 2012 (280) E.L.T. 238 (Tri-Delhi)
Issue: -Whether setting aside of order of Additional Commissioner could be ground for assessee not to file appeal before the Tribunal against the rejection of refund claim by Assistant Commissioner?
 
Brief fact: -  The Assistant Commissioner had rejected the claims for refund filed by the assessee under Rule 5 of Cenvat Credit Rules, 2004 on the ground that input services on which the appellants had availed Cenvat credit, were not eligible input services, relying upon the order passed by the Additional Commissioner of Central Excise, Gurgaon wherein Cenvat credit on service tax paid on several input services received by the applicants, an EOU unit was denied on the ground that services received by the unit were not eligible input services. However, the order of the Additional Commissioner was set aside by the lower Appellate Authority and in the light of his order; the assessee became eligible to refund of un-utilized credit of input service. In the present impugned order, the Commissioner (Appeals) has dismissed the appeals filed by the assessee on the ground that the earlier order of the Assistant Commissioner wherein refund applications of the appellants were rejected, was not challenged by them, which is factually incorrect, as appeals had been preferred against the rejection of the refund claims.
 
Appellant Contention :- The Appellant submits that in the present case, they did not file appeal against the orders of the Assistant Commissioner rejecting their refund claim for the reason that the only ground on which the Assistant Commissioner has rejected their refund claims was that the Additional Commissioner vide order in original No. 03/VKB/ADC/CE/2008 dated 28-2-2008 had disallowed the Cenvat credit taken by the appellants on the ground that the services on .which the credit was availed were not input services and as such, no credit was available to the appellants. In view of the fact that the order of the Additional Commissioner dated 28-2- 2008 was alive and kicking at the time the order in original dated 2-12-2008 rejecting the refund claim was passed by the Assistant Commissioner; the appellants did not deem or contemplate that any worthwhile purpose would be served in filing appeal against the rejection of the refund claim. As the Department was seeking to join both the issues that is the issue of refund of unutilized Cenvat credit of input services and the issue of availability of Cenvat credit of the input services to the appellants. The appellants finally concluded that till the time the order of the Additional Commissioner denying them the credit of the input services is set aside by an appellate authority or it attains finality their refund of the unutilized Cenvat amount will not be processed and department will keep on joining both the issues and as such no worthwhile purpose can be served in filing appeal before the Commissioner (Appeals)."
 
 The further submission of the assessee that against the impugned orders challenged in the present appeals, the assessee preferred Writ Petition before the Punjab & Haryana High Court on 15-2-2010 which stood dismissed on 27-7-2010 on the ground of availability of alternative remedy before the Tribunal. Therefore, they submit that the delay was not deliberate but only due to above reasons and therefore, pray that such delay may be condoned.
 
 
 
Reasoning of Judgment:  The Tribunal is not satisfied with the reasoning given in the COD applications each order by which an assessee is aggrieved is required to be challenged before the higher forum within the statutory period of limitation. The fact that the order of the Additional Commissioner upholding that services received by the assessee were not eligible input services was set aside by the Commissioner (Appeals), is no ground for the assessee not to file appeals before the Tribunal against the rejection of the refund claims. The Hon'ble High Court has also not condoned the delay in filing appeals before the Tribunal against the ten orders challenged in the present appeals. Tribunal note that in the case of Balwant Singh N Jagdish Singh reported in 2010 (262) E.L.T. 50 (S.C.), the Apex Court has held that delay is just one of the ingredients which has to be considered by the Court and in addition to this, the Court also take into account conduct of the parties, bona fide reasons for condonation of delay and whether delay is easily avoidable by the applicant acting with normal care and caution.
 
Tribunal makes a reference to the judgement of this court in Perumon Bhagvathy Devaswom (Supra). In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application forbringing the legal representatives on record. the Court held as under that an applicant must essentially satisfy the required ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.
 
 The assessee has not put forth bona fide reasons for condonation of delay and further the delay could easily be avoided by the assessee acting with normal care and caution.
 
The Tribunal holds that sufficient cause has not been made out for condoning the delay. The COD applications are therefore, dismissed and as a result, the appeals are dismissed as barred by limitation.
 
Decision: -Appeal dismissed
 
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