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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.  

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PJ/Case Laws/2012-13/1182

Whether the appeal automatically dismiss when once a Tribunal waived the pre-deposit of penalty or not?
 
Citation: 2012-TIOL-599-HC-P&H-CX
 
Case:M/s SHREE RAM STEEL INDUSTRIES Vs COMMISSIONER OF CENTRAL EXCISE AND ANOTHER
 
Issue:Whether the appeal automatically dismiss when once a Tribunal waived the pre-deposit of penalty or not?
 
Brief Facts:Petition has been filled against the stay order dated 09.02.2012 passed by the customs, Excise and Service Tax Tribunal, New Delhi holding that the appeal of the petitioner would be dismissed automatically without any further hearing in the case on account of non-deposit of an amount of Rs, 2.5 crore by M/s Vishwakarma Alloys Ltd. As directed in the inpungned order datd 09.02.2012 and order dated 08.05.2012 directing the petitioner to deposit the whole amount of penalty imposed by the respondent- Commissioner.
 
The petitioner was dealer and registered with the Central Excise. Revenue conducted Investigation to one of manufacturer (Buyer) of the petitioner. During search, shortage of raw material was noticed and a show cause notice regarding the same was issued.  During enquiry regarding past transactions of the said Manufacturer, it was found that the said Manufacturer was purchasing raw material from various registered dealers including the petitioner and was taking cenvat credit on the basis of invoices issued by the said dealers. During the period in question the Petitioner has also sold scrap involving duty amounting to Rs. 798000/- the said Manufacturer. After completion of investigation, show cause notice issued to petitioner as to why penalty under Rule 25 of the Central Excise Rules, 20002 be not imposed upon him.  It was also mentioned in the show cause notice that the petitioner and other dealers have only supplied invoices to manufacturer and have not sold the material.
 
The Revenue imposed penalty equal to the amount of credit passed to the said Manufacturer. The said Manufacturer as well as the petitioner and various other dealers and transporters filed appeals before the Tribunal. Along with the appeals, stay applications were also filed. The Tribunal directed to the said Manufacturer to make predeposit. However, the requirement of pre-deposit in the case of all the dealers was dispensed with and it was ordered that in case of the said Manufacturer fails to make pre-deposit, the appeals of all the parties would stand automatically dismissed.
 
The said Manufacturer failed to deposit the amount. On misc. Application having been filed by the revenue, the matter of the petitioner as well as other parties was taken up by the Tribunal. The Tribunal directed the petitioner and others to deposit the penalty amount imposed on them. Hence, the petitioner filed writ against the impugned orders.  
 
Petitioner’s contention:-The petitioner submitted that the similar order dated 9.2.2012 has been modified by this Court in M/s Victory Impex v/s Commissioner of Central Excise, Ludhiana and another decided on 31.5.2012 wherein it has been held that the appeal filed by the petitioner cannot be dismissed for want of pre-deposit by said Manufacturer of the petitioner. Further, urged by the petitioner that once the Tribunal had waived the condition of pre-deposit of penalty in  case vide order dated 9.2.2012, the Tribunal was not justified in passing order on miscellaneous application on 8.5.2012 directing us to deposit the penalty amount imposed on them by reviewing its earlier order.
 
Reasoning of Judgement:The High Court heard both the parties and consider that  the order dated 8.5.2012 requiring the petitioner to deposit the penalty amount imposed on them by reviewing the order dated 9.2.2012 exempting the petitioner from pre-deposit is not justified.
 
The High Court further finds that once the Tribunal had waived the condition of pre-deposit of penalty imposed u/r 25 of CER, 2002 on the registered dealer for the alleged supply of “invoices” without material, there cannot be an automatic dismissal of his appeal on account of non-payment of the pre-deposit by the manufacturer.
 
Decision:-Order set aside and Tribunal directed to hear appeal on merits.
 
Comment:- this was very unique case where in the appeal of dealers was linked with pre-deposit of manufacturer. When the separate appeals are filed by them and they are separate parties then the failure of pre-deposit by manufacturer cannot lead to dismissal of appeals by dealers. High Court has taken the right view and set aside the order of the tribunal.
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