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 LAW/2014-15/2444

Whether the quantum of pre-deposit can be different for assessees under identical situation?

Case:-SPA VET-MIN PVT LTDVs UNION OF INDIA
 
Citation:-2014-TIOL-2075-HC-AHM-CX

Brief Facts:-  Rule. Mr. Y.N. Ravani, learned standing counsel for the respondents, waives service of notice of rule on behalf of the respondents.Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of the learned counsel for the respective parties, the matter was taken up for final hearing.
This petition is directed against the orders dated 3rd April, 2014 and 14th July, 2014 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as “the Tribunal”) on the stay application filed by the petitioner as well as the modification application filed thereafter.
 
Briefly stated the facts are that against an order-in-original dated 19th September, 2013 passed by the second respondent confirming duty demand of Rs.5,10,37,989/- with interest and equal amount of penalty under section 11AC of the Central Excise Act, 1944 (hereinafter referred to as “the Act”), the petitioner went in appeal before the Tribunal under section 35B of the Act along with an application under section 35F of the Act seeking waiver of the pre-deposit of duty, interest and penalty. By the impugned order dated 26th March, 2014, the stay application came to be partly allowed by directing the petitioner to deposit a sum of Rs.1 crore within a period of eight weeks from the date of the order and to report compliance therewith. Being aggrieved, the petitioner moved a modification application before the Tribunal submitting that in the case of M/s. Sudeep Pharma Ltd., the Tribunal, on an identical issue, had by an order dated 24.2.2014, directed pre-deposit of 10% of the amount within the limitation period, therefore, similar treatment ought to be accorded to the petitioner also. The Tribunal, by the impugned order dated 14th July, 2014, rejected the stay application and directed the petitioner to deposit the amount with the authorities on or before 21st August, 2014. Being aggrieved, the petitioner has filed the present petition.
 
Appellant contentions:- Mr. Prakash Shah, learned advocate with Mr. Dhaval Shah, learned advocate for the petitioner, invited the attention of the court to the order dated 24th February, 2014 made by the Tribunal in the case of M/s. Sudeep Pharma Ltd, wherein a similar controversy was involved. It was pointed out that the Tribunal, after recording that the issue involved was a  arguable one and that the question as to whether the assessee's product would fall under Chapter Heading 28352500 or other headings also needs to be gone into detail, was of the opinion that the demand of duty within the limitation period from the date of issuance of notice needs to be secured by way of ordering pre-deposit on the said assessee and, accordingly, directed pre-deposit of an amount of Rs.3,00,000/- as against total dues of Rs.3 crores under the order-in-original made in the case of the said assessee. Reference was madeto the decision of the Supreme Court in the case of Vishnu Traders v. State of Haryana & Ors., 1995 Supp (1) SCC 461, to submit that similar treatment is required to be given to similarly situated persons and, hence, the Tribunal was not justified in discriminating against the petitioner and directing it to pre-deposit 10% of the entire amount. The attention of the court was also drawn to the order dated 2.7.2014 made by the Tribunal in the case of M/s. S.A. Pharmachem Pvt. Ltd. to submit that in the facts of the said case also, though the demand under the order-in-original was considerable, the Tribunal had directed the said assessee to deposit an amount of Rs.15,00,000 /- only. It was submitted that in the light of the law laid down by the Supreme Court in the case of Vishnu Traders (supra), the petition deserves to be allowed.
 
Respondent Contentions:- Opposing the petition, Mr. Y.N. Ravani , learned standing counsel for the respondents, submitted that the Tribunal, by a well reasoned order, has directed the petitioner to pre-deposit an amount of Rs.1 crore which is only 10% of the entire amount that the petitioner is liable to pay under the order- in-original including duty and penalty. It was submitted that the Tribunal has duly considered the facts of the case as well as the status of the petitioner and its financial condition and, as such, there is no warrant for interference. Reliance was placed upon the decision of the Supreme Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise, 2006 (204) E.L.T. 513 (S.C.), for the proposition that while disposing a stay application, two aspects are required to be taken into consideration, namely, (i) undue hardship to such person and (ii) to safeguard the interest of the revenue.
Therefore, while dealing with an application for stay, twin requirements have to be kept in mind, viz., the undue hardship aspect and imposition of conditions to safeguard the interest of the revenue. The Tribunal, while dealing with the stay application, has to consider the material that may be placed by the assessee in support of its plea of undue hardship and is also required to stipulate condition to safeguard the interests of the revenue. According to the learned counsel, the Tribunal, in the facts of the present case, has rightly observed the issue involved is a highly debatable one and needs to be gone into detail and having found as a matter of fact that the assessee was not having any severe financial hardships has thought it fit to impose some conditions. It was submitted that in the light of the above decision of the Supreme Court, the impugned order dated 3.4.2014 being just, legal and proper, does not warrant interference. It was submitted that in the subsequent order dated 14.7.2014 passed on the modification application also, the Tribunal has duly considered the facts of the case and
has found no reason to deviate from the view taken earlier. Under the circumstances, the petition being devoid of merits deserves to be dismissed.
 
Reasoning of Judgment:-  In the backdrop of the facts and contentions noted hereinabove, the sole controversy that arises for consideration is as to whether the Tribunal was justified in directing the petitioner to pre-deposit 10% of the entire demand under the order-in-original including duty and penalty when in case of a similarly situated assessee, the Tribunal had directed pre-deposit of only 10% of the duty demand within the period of limitation.
 
In this regard, reference may be made to the decision of the Supreme Court in the case of Vishnu Traders v. State of Haryana (supra), wherein the Supreme Court has held that in the matters of interlocutory orders, principle of binding precedents cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminating treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach. Examining the facts of the present case in the light of the above decision, in the impugned orders more particularly the order passed on the modification application, the Tribunal has not delved into the aspect as to whether the assessee in the case of M/s. Sudeep Pharma Ltd. was in any manner not similarly situated to the petitioner when it was the specific case of the petitioner that identical controversy was involved and that the petitioner was similarly situated to the said assessee. On a perusal of the show-cause notice issued in the case of the petitioner as well as in the case of M/s. Sudeep Pharma Ltd., a copy whereof has been placed on record, it is apparent that the controversy involved in both the cases was identical. In the order passed in the case of M/s. Sudeep Pharma Ltd., the Tribunal has not discussed on the aspect of financial hardship. The learned counsel for the respondents is not in a position to point out any notable difference in the case of the petitioner and in the case of M/s. Sudeep Pharma Ltd. Under the circumstances, the above referred decision of the Supreme Court in the case ofVishnu Traders v. State of Haryana (supra) would be squarely applicable to the facts of the present case. The Tribunal, therefore, was not justified in discriminating between the petitioner and the other assessee by directing the petitioner to pre-deposit an amount which is much more than in other cases. Insofar as the decision of the Supreme Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise, (supra) on which reliance has been placed by the learned counsel for the respondents is concerned, the same would not be applicable in the facts of the present case, inasmuch as, the issue involved in the present case is not as regards the quantum of pre-deposit directed by the Tribunal on the facts of the case, but as regards the discriminating treatment meted out to the petitioner qua other assessees. A perusal of the amount demanded by the adjudicating authority and the show-cause notice reveals that in respect of the period within limitation, the duty demand was to the tune of Rs.8,08,588/-. Under the circumstances, adopting the same approach as in the case of Sudeep Pharma Ltd., the Tribunal ought to have directed pre-deposit of an amount of Rs.8.5 lakhs. The impugned orders being contrary to the law laid down by the Supreme Court in the case of Vishnu Traders v. State of Haryana (supra), therefore, cannot be sustained.
 
In the light of the above discussion, the petition succeeds and is, accordingly, allowed. The impugned order dated 14th July, 2014 is hereby quashed and set aside. The impugned order dated 3rd April, 2014 is hereby modified by directing the petitioner to pre-deposit a sum of Rs.8.5 lakhs within a period of eight weeks from today and report compliance before the Deputy Registrar of the Tribunal. Rule is made absolute accordingly with no order as to costs.
 
Decision:-Appeal allowed.

Comment:- The need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminating treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach. As observed in the present case, the assessee seeks grant for similar treatment in identical facts and circumstances which is allowed. Thus, the Tribunal should properly delve into the matter & should pass interlocutory/interim orders consistently.
 
Prepared by:Meet Jain
 

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