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/2013-14/1885

Whether show cause notice issued after a period of six months from the date of completion of investigations is barred by limitation?

Case:-M/s UNION QUALITY PLASTIC LTD Vs CCE, VAPI

Citation:-2009-TIOL-326-CESTAT-AHM

Brief Facts:-The appellant is engaged in the manufacture of HDPE Woven laminated/un-laminated fabrics and bags and Tarpaulin classifiable under Chapter 39. Their factory was visited by the Central Excise officers on 1.8.97, who conducted various checks and verifications. As there was shortage of various finished products in the appellant's factory, as compared to statutory records, an offence case was booked against them by drawing panchnama. The statement of manager and clerk was recorded, which are inculpatory in nature. The director's statement was also recorded on 2.9.97 admitting the clearances. Thereafter a show cause notice was issued to the appellant on 29.1.99 alleging clandestine removal and proposing to confirm demand of duty and to impose penalties. The said show cause notice was adjudicated by the Commissioner confirming demand of duty of Rs.26,02,088/- and imposing penalty of identical amount. In addition penalties were imposed upon the other appellants.

Appellant Contentions:-The appellant primarily assailed the impugned order on the point of limitation. It is his contention that the factory was visited on 1.9.97 and all the investigations were completed by the department by 2.9.97, when the last statement of the director was recorded. As such issuance of show cause notice after a gap of two years is clearly barred by limitation. In support, reliance stands placed upon the Tribunal's decision in the case of Jetex Caburettors Pvt. Ltd. Vs. Commissioner of Central Excise, Vadodara reported in 2007 (210) E.L.T 73 (Tri.-Ahmd) = (2006-TIOL-1999-CESTAT-AHM), where the entire law on the issue was taken note of and it was held that the notice issued after a period of six months from the date of visit of the officers was barred by limitation. Reliance also stands placed upon subsequent decision of the Tribunal in the case of M/s. Prism Mills Ltd., being order No. A/2803-2505/WZB/AHD/07 dated 26.10.2007.

Respondent Contentions:- The respondent submits that the findings against the appellant being that of clandestine removal, longer period of limitation of five years is available. The fact that show cause notice was issued after a period of about two years from the date of visit of the officers will not take away the Revenue's right to invoke the extended period against the appellant. He has also drawn my attention to various decisions of Tribunal laying the law to the contrary. Special reference stands made to the Tribunal's judgment in the case of Mukand Ltd. Vs. Commissioner of Central Excise, Belapur reported in 2007 (218) E.L.T. 120 (Tri.-Mumbai) wherein the assessee's plea that the show cause notice was issued after more than a year of the date of knowledge was not accepted on the ground that there was a clear suppression on their part with intent to evade duty. Reliance was also placed on the Hon'ble Supreme Court decision in the case Commissioner of Central Excise, Ahmedabad Vs. M/s. M. Square Chemicals 2008 (231) E.L.T 194 S.C = (2008-TIOL-243-SC-CX) to support his contention that in cases of clandestine removals, proviso to Section 11A can be invoked. Reliance was also placed upon another decision of the Hon'ble Supreme Court in the case of Mathania Fabrics 2008 (221) E.L.T 481 S.C. = (2008-TIOL-03-SC-CX). Reliance was also placed on para 4.4. of Tribunal's decision in the case of C.C.E Ahmedabad Vs. M/s. Milli Detergent and others, being Order No. A/ 1955 - 1958 /WZB/AHD/07 dated 2.8.07 rejecting the assessee's contention that time limit of six months from the date of commencement of investigations will apply and holding that in cases of fraud, suppression etc. the five year period should be from the date of clearance.

Reasoning of Judgement:-It was noted that the above disputed issue as to whether the show cause notice raised after a period of six months from the date of visit of the officers in the assessee's factory or after a period of six months from the date of completion of investigations is subject matter of various appeals, in as much as usually the show cause notices are issued after a period of six months, in such type of cases. The date of completion of investigations by the department cannot be arrived at, as it may happen that during the intervening period, Revenue might have made efforts to conduct further investigations, which might not have resulted in fruitful results. As such the efforts so made may not be part of the records on account of non-finding of any materials against the assessee. However, the fact remains that the investigations might get complete after a long period, in contradiction to the facts appearing on record and as contained in the show cause notice. It might refer to only the last statement recorded. Further once an assessee has been found to be indulging in clandestine activities, whether the longer period of five years becomes available to the Revenue irrespective of the facts of completion of investigation is a question of prime importance. As there are two views on the said issue as to whether in such circumstances notice is required to be held as barred by limitation or not, the matter is referred to the larger bench to be constituted by the Hon'ble President.

Decision:-Matter referred to Larger Bench.

Comment:-The substance of this case is that as there are different opinions regarding the issue that the show cause notice issued after a considerable span of time from the date of completion of the investigation proceedings is barred by limitation or not, the matter is being referred to the larger bench of the Tribunal.

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