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/2011-12/1234

Whether Tribunal is right in holding that benefit of Notification No.6/2002-CE dated 01.03.2002 as amended, by reversing the credit of duty paid on “inputs” after utilizing the same for clearance of ceramic tiles though mandatory condition of the said not
Citation: 2011 (267) E.L.T. 461 (Guj.)

Case: Commissioner of C. Ex. & Customs versus Foram Glazed Tiles

Issue:  “(a) Whether from the facts and circumstances of the present case, the Tribunal is right in holding that the respondent is eligible to claim benefit of Notification No.6/2002-CE dated 01.03.2002 as amended, by reversing the credit of duty paid on “inputs” after utilizing the same for clearance of ceramic tiles though the respondent has violated the mandatory condition of the said notification?
(b) Whether the Tribunal is right in law to accept the reversal of an entry of or repayment of the amount of CENVAT credit availed of by an assessee after the assessee is caught by the department acting in contravention of the Act and Rules applicable in the fact of the case?
(c) Whether the Tribunal is right in law in holding that though at the time of clearance of goods the assessee was not entitled to get the benefit of the exemption notification, subsequent conduct of the assessee of reversing the entry at the time of getting caught would exempt it from the liability of paying full duty?”

Brief Facts:The assessee is engaged in manufacture of Ceramic glazed tiles availed the benefit of concessional rate of duty under Sr. No.235 of Notification No.6/02-CE dated 1.3.2002 as amended by Notification No.45/2003-CE dated 14.05.2001 in respect of clearance of final product. The same was not available to the assessee as averred by the department on the ground that the benefit made available by way of exemption was conditional this wise that only if no credit of duty paid on the inputs used in or in relation to the manufacturer of such ceramic tiles is taken under Rule 3 and Rule 11 of Cenvat Credit Rules, 2002/2004, this exemption under the notification can be claimed. And as assessee had already taken credit of duty paid on input, consequentially under the notification, concessional rate of duties would not be available to assessee.
Department having found that this double benefit is already taken by the assessee while clearing goods had deemed it appropriate to issue show cause notice on assessee.
It is vital to note that the assessee, before this notice, had already reversed credit availed by him on input.
This show cause notice was contested before the Commissioner and the Commissioner vide his order in original , in detail examined admissibility of exemption notification in a situation when the condition of notification allegedly have been contravened, when he had already availed cenvat credit on the inputs used in the manufacture of ceramic tiles. And it upheld the demand made under the show cause notice.
This order in original was carried in appeal before CESTAT, which upheld the claim of assessee manufacturer, So the revenue filed this appeal before the High Court.

Appellant’s Contention:The Revenue urged that since this was a deliberate and intentional act of enrichment to defeat revenue, the order of the CESTAT requires to be scrutinized in detail and deserves to be set aside.

Respondent’s Contention:-The Respondent though admitted that reversal of Cenvat credit was done prior to the issuance of show cause notice. But that would not wipe of unjustifiable action of the Assessee according to the Revenue.

Reasoning of the Judgment:Respondent has availed benefit of the said notification and paid less percentage of duty which is 8%, instead of 16% payable, knowing fully well that they had since already availed cenvat credit on input made available to them, this benefit was not meant for them.
The High Court is of the opinion that with no question of law having arisen in this case coupled with the fact that there being no perversity at all in the order passed by the CESTAT, this appeal does not require to be allowed.
After looking at the content of show cause notice dated 1.6.2007 issued to the assessee where demand under Section 11A, 11AB and 11C of differential duty(central excise duty) interest and penalty respectively, under the Central Excise Act is raised, the same states that the exemption contained in the said notification is conditional and is available subject to fulfillment of the condition which stipulates that no credit of the duty paid on the inputs used in or in relation to the manufacture of such ceramic tiles ought to have been taken under Rule 3 or Rule 11 of the CENVAT Credit Rules 2002.
Rule 3 of the Cenvat Credits Rules, 2004 provides for the provisions under which the credit of various duties would be admissible to a manufacturer and as to how this credit can be utilised for payment of duty whereas Rule 11 of the said Rules speaks of deemed credit provisions.
The Commissioner has disallowed the claim of the manufacturer by further observing that “the question is to decide the demand for different central excise duty from the manufacturers who have misled the Revenue by taking cenvat credit on the inputs deliberately under the category of capital goods.”
The Commissioner also when confronted with judgement of the Apex Court in case of Chandrapur Magnet Wires(P) Ltd. v. Collector of C. Excise, Nagpur reported in 1996(81)ELT 3(SC), did not agree to apply the ratio laid down in the said case of manufacturers by distinguishing the same on facts and chose to uphold the demand proposed in the show cause notice.
The tribunal has essentially relied on judgement of Gujarat High Court in case of the Commissioner of Central Excise v. Ashima Dyecot Ltd. reported in 2008(232)ELT 580(Guj), wherein it is held that reversal of credit even if it is subsequent to clearance or even after credit taken, would amount to non-availment of credit.
It would be apt to mention at this stage that fervent contention is raised by revenue attempting to distinguish the facts of present case, from what was there in that case when this Court held in Ashima Dyecot Ltd.(supra), emphasizing that reversal in that case was prior to clearance of goods, which is not a case here. Here reversal was much after this was detected, albeit before the issuance of show cause notice.
The assessee had reversed the cenvat credit prior to issuance of show cause notice and while accepting said reversal, no challenge is made by the department to this act of respondent.
Admittedly, on non-availment of the credit, manufacturer is entitled to the benefits emanating from notification which is of payment of reduced duty of 8% interest instead of payment of 16% duty.
The Supreme Court is also in agreement with the conclusion in the decision of the CESTAT where it has held that issue is broadly covered by the decision of this Court in case of Ashima Dyecot Ltd.(supra).

Decision:Appeal is 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