Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1134

Whether the Cenvat can be claim after declaration under Rule 57 G was filed or not??

Prepared by
CA Rajani Thanvi
Bharat Rathore



Case: Hindustan Zinc Limited Vs. Commissioner of C.Ex., Jaipur

Citation: 2011(265) E.L.T. 402 (Tri. Del.)

Issue: Whether the Cenvat can be claim after declaration under Rule 57 G was filed or not??

Brief Facts: The appellant are engaged in manufacture of Zinc, Lead and Copper Sulphate Solutions. The appellant filed a Cenvat Claim under Rule 57 H of erstwhile Central Excise Rules, 1944 before adjudicating authority. The adjudicating authority partly allowed the refund and disallowed the balance credit amount. The appellant filed appeal before Commissioner (Appeals) on the grounds that adjudicating authority reject their claim without hearing and without issuing Show cause notice. The Commissioner (Appeals) remanded the matter for re-adjudication. Accordingly the adjudicating authority disallow the claim by order holding that he condition of Rule 57H were not fulfilled by the appellant. Thereafter, the appellant has taken credit with intimation to department that rejection of permission under Rule 57 H ibid did not preclude us from taking it and appellant utilised the credit towards the payment of duty on th finished goods. The department conducted the investigation and issued a Show cause notice to the appellants. The same was contested by the appellants and consequently the impugned order came to be passed.

 Appellant’s Contention:  The appellant submit that they had filed the declaration under Section 57H and as per provision of law comprised under Rule 57 G and 57 H as were in force at the relevant time , the appellant was required to seek permission of the department for utilisation of credit which were lying in stock fan or before 25/07/1991. The appellant was filed appropriate application in terms of rule 57 H. As far as inputs received or after 5/07/1991, there was no such requirement and those were received or utilised in terms of Rule 57 G. under the wrong belief that even in relation to certain inputs which were received after filing of declaration. The provision of law comprised under Rule 57 H would be attracted, we have filed an application to adjudicating authority seeking leave to avail the credit on the inputs received after declaration. Under Rule 57 H on 24/29th October 1992. Since the provision of law comprised under Rule 57 H were not applicable, even though the concerned authority rejected the claim under section 57 H.

 

The appellant submit that they have intimated to adjudicating authority that rejection of claim under Rule 57H did not prohibit us to avail and utilise credit in terms of the provision of Rule 57G. The department neither communicates to us nor rejects the claim under Rule 57G and not issue a Show cause notice to us.   The department issue show cause notice after utilisation of credit in January 2003.

 

The appellant further submit that in terms of the provision of law comprised under Rule 57G as were applicable to the facts of the case. And while rejecting the application under 57H, the authority had not disputed the claim of the appellant about receipt of the inputs after 25/07/1991.

 

The appellant further submit that the they have produce all relevant documents like RG23 A Pt-I and Pt.II and the invoices which ere sufficient proof of the fact and question of RT-12 return did not arise as there was no provision for the same at the relevant time.

 

Respondent’s contention:-The respondent submit that the appellant themselves have deposed that the goods in question were received by them prior to the filing of the declaration and the contention now sought to be raised about the receipt of those goods after declaration are purely after thought.

 

The respondent further submit that the appellant was not submit satisfactory documents proof regarding receipt of the input in question after the receipt of the declaration under Rule 57G. it was necessary for the appellants to produce satisfactory evidence in that regard andthey having failed to do so.

Reasoning of Judgment: - The Hon’ble Tribunal heard both side and considered that there was clear admission about the goods having been received prior to the filing of declaration, it is true that the Commissioner has made the said observation by referring to the pleadings in the appeal in the earlier proceedings. There is vast difference between a deposition and pleadings. There could be possibility of wrong statement offact in pleadings, either made unknowingly or by mistake. But it is not permissible to use such pleadings from one proceedings to other proceedings.

The Hon’ble Tribunal also find that the appellants might have made the said statement in the appeals before the commissioner (Appeals) in the earlier proceedings it will be required to ascertain the circumstances in which the said statement was made. Agains for that purpose, opportunity has to be given to the concerned party to putforth its say in that regard and in this case the same has not been done.

 

The Hon’ble Tribunal also observed that Adjudicating authorities while passing the order under Rule 57 H had nowhere stated that the goods were received prior to the filing of declaration. Indeed, if it was so, it was absolutely necessary for the authority to arrive at such finding in the order dated 17/05/2000 so that the party if aggrieved could have challenged the same. In the absence of such finding and that too read with letter dated 18/11/1998, it can not be contended that the goods were received prior to the declaration.

The Hon’ble Tribunal also observed that the most relevant documents in the form of invoices and RG 23A Pt. I and Pt. II and invoices were produce by the appellant and those documents were more than sufficient to establish the case of the appellants and in fact on scrutiny of those documents the authority had refused to grant the credit under Rule 57H. Being so the said finding also cannot be sustained.

The Hon’ble Tribunal considered that the goods having been received after the submission of declaration, the provision of Rule 57H were not attracted and in terms of the other provision of law in force, the appellant were lawfully entitled to avail and utilize the credit which they did in January 2003 and, therefore, the entire proceedings are totally bad in law.

Judgment:Appeal succeed and impugned order is set aside with consequential relief.

******************

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