Whether it can be inferred that goods are not properly accounted for, simply because of mere overwriting in Form-49 which is required to be filled up for transportation of goods, if there is no discrepancy either on physical verification of goods or in books of accounts - NO: HC

- Assessee's revision allowed: ALLAHABAD HIGH COURT

Whether when assessee dealer had not maintained any books of accounts during assessment year in question, he cannot question justification for rate of tax adopted by Commercial Department - YES: HC

- Assessee's revision dismissed: ALLAHABAD HIGH COURT

ST - The petitioner challenges recovery notices issued to them in respect of alleged non-payment of service tax dues under FA, 1994 which are of respondent no.4 M/s. Photolibrary India Pvt. Ltd. consequent to the order passed by Commissioner of Service Tax - Besides, the petitioners have also challenged the Garnishee Notice issued by Deputy Commissioner of Central Excise to respondent no.3 HSBC Bank in respect of petitioner's bank account for the alleged dues of respondent no.4 - It is an agreed position between the parties that given the above facts and the nature of the dispute between the parties, it would be best adjudicated upon by Commissioner of CGST and CE, Mumbai Central Commissionerate - This adjudication would be on the basis that the impugned communications dated 6th February, 2018, 13th March, 2018, 10th April, 2019, 17th July, 2018 and 4th January, 2019 issued by respondent no.1 would be construed as SCNs to the petitioners - The petitioners would file its representation / reply to the SCNs i.e. the impugned communications herein within a period of 15 days - The Commissioner of CGST and CE would pass an appropriate order on the representation by following due process of law including the principles of natural justice: HC

- Petition disposed of: BOMBAY HIGH COURT

- Appeal dismissed: MADRAS HIGH COURT

CX - Respondent had not registered itself and was not paying any excise duty on the products that it was manufacturing - Search conducted by the Department at the registered office and the factory premises of the respondent led to the recovery of certain material on the basis of which the Department was considering the matter - At that stage, a writ petition was filed in which an order was passed by the High Court on 28.11.2005 directing the Department to decide whether the Department had jurisdiction to proceed in the matter before deciding any other issues on merits - since a direction was issued by the High Court, the Department in deference to such direction did consider the matter and by an Internal Order dated 15.03.2006 prima facie recorded an opinion that the authorities under the Act had jurisdiction to proceed in the matter - Scheme of Section 11A does not contemplate that before issuance of any show cause notice, there must, prima facie, be: (a) a preliminary determination that the process or activity undertaken in the matter amounts to manufacture; and (b) before arriving at such preliminary determination, any hearing to the concerned person is contemplated - Since the provisions of the Act do not contemplate any prima facie determination which must be communicated to the person concerned, the Department was justified in not communicating the Internal Order on its own - The matter was correctly assessed by the High Court on the next occasion when in spite of having directed that a copy of the Internal Order be supplied, it acknowledged that the remedy of the respondent lay in submitting reply to the show cause notice, in which reply it would be open to the respondent to take objections to the jurisdiction of the appellant to proceed against the respondent under the provisions of the Act - neither the Central Excise Act contemplates any such prima facie determination which must be communicated only whereafter the proceedings could be initiated nor was such course undertaken by the Department on its own - Therefore, merely because the Internal Order was communicated to the respondent, it would not afford the respondent a cause of action to file an appeal against said Internal Order - The communication of said Internal Order was only in obedience of the directions issued by the High Court - It was not a decision or determination which was arrived at in terms of sub-section 10 of Section 11A and the respondent, therefore, could not have preferred any appeal against said Internal Order dated 15.03.2006 - The Appellate Authority as well as the Tribunal completely failed to appreciate this basic distinction - ? while issuing a show cause notice under Section 11A of the Act, what is entertained by the Department is only a prima facie view, on the basis of which the show cause notice is issued - The determination comes only after a response or representation is preferred by the person to whom the show cause notice is addressed - In the present case, even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order - The appellant Revenue was therefore, justified in submitting that the appeal itself was pre-mature: Supreme Court [para 9 to 11]

CX - Excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the person concerned must first raise all the objections before the authority who had issued a show cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person - It is thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice - In the present case, no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter - attention of the Court was invited to Circular dated 22.08.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) laying down monetary limits for filing of appeal by Revenue - In the present case, there was no assessment and computation of any duty element - The matter had not gone beyond the Show Cause Notice - The questions in the matter pertained to the correctness of the view whether there was any adjudication in the matter and whether the appeal at the instance of the Respondent was maintainable - Bench views that the issues involved in the matter do not strictly come within the confines of the aforesaid Circular - Bench sets aside the appellate order dated 10.01.2007 and the order under appeal and directs that the proceedings pursuant to show cause notice dated 21.03.2006 be taken to logical conclusion - The respondent shall be entitled to put in its response to said show cause notice within three weeks from the date of this judgment and shall also be entitled to place such material on which it seeks to place reliance, in support of its case - matter shall thereafter be proceeded with in accordance with law - Revenue Appeal allowed: Supreme Court [para 12, 15 to 17]

- Appeal allowed :SUPREME COURT OF INDIA

CX - The only issue to be decided is about the admissibility of Cenvat Credit taken on cement returned back in damage condition - The period in dispute is January, 2011 to August, 2014 - The assessee has shown the decision of Tribunal in assessee's own case on identical issue in which this Tribunal vide Misc. Order dated 03.07.2008 decided the appeal in favour of assessee - Thereafter, again recently for the period January, 2016 to June, 2017 the Department while relying upon the decision of the Tribunal as aforesaid, decided the same issue in favour of assessee - The Deputy Chief Chemist has dealt with the damaged cement relating to some other company, and therefore, the report in relation to some other company cannot be applied on the facts of the assessee's case - Therefore, following the decision of Tribunal, impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

CX - The assessee-company manufactures plastic jerry cans and pet bottles on job work basis for the principal manufacturer - The raw materials are supplied by the principal manufacturer directly from the place of supplier to the job workers - The job workers do not pay duty on the goods manufactured on job work basis and cleared to their principal - The Revenue opined that the principal manufacturer is using job worked goods to manufacture exempted goods - Hence the job worker being a manufacturer was required to pay Excise duty - Hence duty demand was raised.

Held - It is undisputed that the issue namely as to whether a job worker or the principal raw material supplier is required to pay duty, was subject to dispute, with there being several judgments supporting either view - Therefore, the assessee correctly harbored a bona fide belief based on various judgments that excise duty is payable by the principal supplier of raw material - It is settled law that demand raised for extended period of limitation is impermissible when the issue at hand has been referred to the Larger Bench of the Tribunal - Considering the decision of the Tribunal in Dharti Automobiles it is observed that the matter in the present case precedes the judgment of the Larger Bench and before such event was settled in favor of the assessee through many judgments, before finally being settled by the Larger Bench - Hence no mala fide intent can be attributed to the assessee & consequently, the demand raised by invoking extended limitation merits being quashed - The demand raised for the normal period of limitation merits being recomputed - Hence matter remanded to such end: CESTAT

- Case remanded: AHMEDABAD CESTAT