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 STUDY/2010-11/04
01 May 2010

 

PJ/CASE STUDY/2010-11/04

 

Case Study

Prepared By: -

CA. Pradeep Jain

Sukhvinder Kaur, LLB

and CA. Ridhi Anchalia

Introduction: -

There is always a belief that when there are specific provisions, they will always prevail over the general one. But if the specific ones are not beneficial to the assessee will they prevail over the general one? This is a question which should be answered before making the specific provisions not advantageous than the general one. This type of situation mostly leads to a matter of disagreement between the assessee and the department. As the assessee always want to have the full benefit of the notifications and circulars issued by the Government, they will never prefer to go for something which is not good for them and the department never wants to loose its revenue. So what to do in these situations? The Apex Court also in such situations has said that it depends on the assessee to choose the most beneficial provisions among the available. One such assessee was also facing the same circumstances. We are discussing their case in this case study.

M/s Mangalam Alloys v/s CC, Ahmedabad

[Final Order No. A/308-314/WZB/AHD/2010 Dated 22.04.2010]

 

 

Relevant Legal Provisions:-

Notification No. 21/2002-Cus, dated 1.3.2002 (Relevant Entries): -

 

S.

No.

Chapter or

Heading or

sub - heading

Description of goods

Standard

rate

Additional

duty rate

Condition

No

200.

72.04

Melting scrap of iron or steel (other than stainless steel or heat resisting steel), for use in, or supply to, a unit for the purpose of melting

Nil

-

20

202.

7204.21

Scrap of stainless steel, for the purpose of melting

5%

-

-

 

Heading of “Steel” and “Stainless Steel” under Chapter 72 of the First Schedule to Customs Tariff Act, 1985: -

Steel

Ferrous materials other than those of 7203 which (with the exception of certain types produced in the form of castings) are usefully malleable and which contain by weight 2% or less of carbon. However, chromium steels may contain higher proportions of carbon.

Stainless steel

Alloy steels containing, by weight, 1.2% or less of carbon and 10.5% or more of chromium, with or without other elements.

 

Brief Facts of the Case: -

§         Appellant are engaged in the manufacture of SS Bright Bars and SS Flats. They were importing of stainless steel melting scrap and claiming the benefit of Notification No. 21/2002-Cus dated 1.3.2002.

§         Earlier, before August 2004, the Notification No. 21/2002-Cus, provided equal levy of 5% custom duty on both “Melting scrap of iron/steel (other than stainless steel or heat resisting steel), for use in, or supply to, a unit for the purpose of melting” falling under entry 200 and for “scrap of stainless steel, for the purpose of melting” falling under entry 202.

§         In 2004, the duty of melting scrap of steel at entry 200 was reduced to ‘Nil’ rate but no change was affected for scrap of stainless steel falling under entry 202.

§         In 2006, the duty was again increased to 5% for melting scrap of iron or steel falling under entry 200. Thus, both the goods falling under entry 200 and entry 202 were bearing the same rate of customs duty again.

§         Another change was that in 2006, the specific exclusion of stainless steel scrap from entry 200 was removed. The entry which read as “Melting scrap of iron or steel (other than stainless stell or heat resisting steel), for use in, or supply to, a unit for the purpose of melting” was changed to ‘Melting scrap of iron or steel’.

§         Thereafter on 01.03.2008, the entry at 200 was amended and the duty for melting scrap of iron or steel was reduced to ‘Nil’ rate of duty.

§         The Assessee-appellant sought benefit of ‘Nil’ rate of duty under entry 200 by classifying the stainless steel scrap imported by them. But the Department was of the view that the goods that were imported by the assessee were covered under Entry Serial No. 202 of the said notification.

§         The appellant went for provisional assessment of the Bill of Entry.

§         Thereafter, a show cause notice demanding the differential duty and stating that the goods were covered under Entry Serial No. 202 was issued to the appellant.

§         The Adjudicating Authority confirmed the demand for differential duty and the Commissioner (A) upheld the demand in appeal.

§         Hence, the appellant is before the Tribunal.

 

Appellant’s Contention:-

·         The appellant contended before the Tribunal that the section notes/chapter notes, which are in the nature of definition, would be relevant to when the terms defined in the Section notes/Chapter note appear in an exemption notification.

·         It was submitted that the expression ‘Steel’ appearing in serial no. 200 would cover ‘stainless steel’ also. The specific removal of words ‘other than’ means inclusion of stainless steel in Entry No. 200. The appellant has relied upon the definitions of ‘steel’ and ‘stainless’ as given in Chapter 72 of the Customs Tariff which covered ‘Iron and steel’. It was

·         It was further submitted that the principle of specific over-rides general will not apply when there is more than one entry in exemption notification covering a product. When pluralities of exemption are available the assessee has the option to choose any of the exemption even if the exemption so choose is generic and not specific.

·         It was further submitted that the products imported by the appellants would be covered under Sr. No. 200 and not under Sr. No. 200 of the said exemption notification.

·         Further the appellant contended that for a case where there is an availability of two exemption notifications then it will be on the assessee to choose which is more beneficial to him.

·         For his contentions the assessee relied on the following cases

o         Share Medicine Vs. UOI [2007 (209) ELT 321 (SC)]

o         CCE Vs. Indian Petrochemicals [1997  (92) ELT 13 (SC)]

o         HCL Vs. CCE [2001 (130) ELT 405 (SC)]

 

Respondent’s Contention:-

§         The Revenue contended that the exemption notification has clearly distinguished the Chapter-heading of the goods and classified them in different entries and it is not a case that the description of the goods and chapter heading notes are clearly spelt out by the exemption notification and the goods imported by the assessee are covered under entry 202 of the exemption notification and not entry 200. 

§         Revenue further contended that the cases relied by the appellant were not applicable in this case.

Judgment of the Tribunal:-

The Tribunal held as under: -

 

Ø       The Tribunal considered the legal provisions for the respective notification and the entry as per Notification No. 21/2002. The various amendments made in the entries at serial no. 200 and 202 during the time were also considered.

Ø       The Tribunal considered the main contention of the assessee that steel covers stainless steel also. That they both are steel only. That the only difference is in their composition i.e. the components of carbon and chromium. That the base metal is a steel and stainless steel is only specified steel which is nothing but a form of steel.

Ø       The speech of the Finance Minister on Budget 2008-09 was also considered wherein it was stated that to improve the supply of raw material he proposed to reduce the duty on steel melting scrap and aluminium scrap from 5% to NIL. The Tribunal held that the intention of the Legislature was to improve the supply of raw material and with this intent the duty was reduced to nil. The Tribunal held that there is force in appellant’s contention that specific exclusion of the words ‘other than’ is inclusion of stainless steel.

 

Ø       The Tribunal further considered the cases relied upon by the Appellant. The Tribunal further relied upon the judgments given in the following cases: -

 

§         In the case of Coco Cola India Pvt. Ltd. v/s CCE, Pune–III [2009 (242) ELT 168 (Bom.)], the Hon’ble High Court of Bombay had held that for the provisions which are in the nature of concessions or exemptions then the specific provision override the general one will not be applicable.

§         In the case of IOCL v/s CCE [1991 (53) ELT 347 (Tri)] the Larger Bench of the Tribunal had held that where there are simultaneous Notifications in force, the one beneficial to the assessee will apply.

 

Ø       The Tribunal held that at Sr. No. 200 the entry is melting scrap of iron or steel which earlier excluded the stainless steel and at Sr. No. 202, the entry is scrap of stainless steel for the purpose of melting. As per Chapter 72, it has been clarified that steel covers stainless steel. Therefore, the appellant can claim exemption under the entry no. 200 or 202 as per the ratio of the judgments discussed hereinabove. The appellants herein have claimed the exemption under the entry no. 200 of the Notification No. 21/ 2002, which cannot be denied as per the law laid down by the Apex Court in the case of HCL Ltd.

Decision of the Tribunal:-

Impugned order set aside. Appeal allowed with consequential relief.

Comments:-

The Tribunal rightly upheld the right of the assessee to choose the exemption beneficial to him in case there are two separate benefits available to him. In the field of Taxation, the assessee has been given a right to choose the benefit which is more suitable to him. In this case, the Department was denying the right of choice to the assessee on the ground that steel and stainless steel were included in separate entries in the exemption Notification. However, the Tribunal has upheld the right of the assessee to choose. This is a very welcome judgment of the Tribunal upholding the interest of the assessee.

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

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