2023-TIOL-84-SC-CX
CCE & ST Vs Pravinbhai Narshibhai Patel
Writ jurisdiction – Tax Appeal – Bar created under Section 35G – Appeal maintainability before High Court – One of the issue/question involved in the Tax Appeals is with respect to rate of duty/value of goods, among other things – Appeal before High Court under Section 35G of the Central Excise Act against impugned common judgment and order passed by the CESTAT held not maintainable.
On plain reading of Section 35G of the Act, if amongst other things, question with respect to determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment arise, an appeal shall not lie to the High Court. In such a situation, the appeal shall lie before the Hon'ble Supreme Court, in light of provision of Section 35L of the Central Excise Act. Therefore, submission made by advocate appearing on behalf of the Revenue that as other issues/questions arise in the present appeal [other than the issue/question with respect to rate of duty/value of goods also], the present Appeals before this Court under Section 35G of the Act be entertained, cannot be accepted. If such an interpretation is accepted, in that case, there shall be two appeals before two different forums against the very/one judgment and order passed by the Tribunal. Under the circumstances, considering Section 35G of the Central Excise Act when it is not in dispute that one of the issue/question involved in the present Tax Appeals is also with respect to rate of duty/value of goods, among other things, the present Appeals before this Court under Section 35G of the Central Excise Act against the impugned common judgment and order passed by the Tribunal shall not be maintainable.
Thus, the preliminary objection raised by the counsel for the respondent is accepted and it is held that the present appeals against the impugned common judgment and order passed in Appeal under Section 35G of the Central Excise Act shall not be maintainable. It will be open for the Department to adopt appropriate recourse to law and approach appropriate forum; as may be available under the provisions of the Central Excise Act.
Having heard the parties, the Supreme Court observed that the Revenue had challenged the order of the CESTAT, and this Court permitted those appeals to be withdrawn with liberty to the Revenue to approach the High Court which they did. The High Court, however, was of the view that since issues of valuation have been involved, the appeals were not maintainable. In these special leave petitions, the Revenue has confined its challenge to the order of the High Court rejecting the appeals on the ground of maintainability. However, the counsel for Revenue sought for permission to apply for restoration of the appeals which were permitted to be withdrawn on various dates. Accordingly, the Supreme Court granted liberty for restoration of appeal.
- Revenue's SLP dismissed: SUPREME COURT OF INDIA
2023-TIOL-78-SC-VAT
Titan Plast Pvt Ltd Vs CTO
Whether when an illustration came to be amended subsequently to bring it in line with statutory provision i.e., Rule 67, it cannot be said that same is illegal and/or contrary to parent act or original industrial scheme - YES: SC
Whether where State Government has provided double the balance period while converting industrial units who earlier availed tax holiday, it cannot be said that State was not aware of interest of industrial units under VAT regime - YES: SC
Whether from date of earlier illustration to Rule 67 of A.P VAT Rules, 2005, which came to be subsequently amended in year 2009, there shall be no interest liability and even penalty for period between Apr 01, 2005 and May, 2009 - YES: SC
- Assessee's appeal partly allowed: SUPREME COURT OF INDIA
2023-TIOL-77-SC-VAT
Addl. Commissioner, Trade And Tax Department Vs Amit Ahuja
Whether mere passing of order of attachment and service on defaulter assessee is not sufficient for constructive notice to general public, unless proclamation of attachment is publicized in manner prescribed by law - YES: SC
Whether however, on a valid attachment being made after following prescribed procedure, doctrine of constructive notice applies, and lack of personal knowledge may not be a good defence - YES: SC
- Revenue's appeal dismissed: SUPREME COURT OF INDIA
2023-TIOL-749-HC-AHM-GST
Vaibhavi Construction Vs Asstt. Commissioner of State Tax
GST - Petitioner has prayed that respondent No.1 and 2 be directed to transfer the proceedings in connection with case of petitioner alongwith documents which are in their possession to respondent no.4 - The first investigation/inspection/inquiry is initiated by respondent no.4 in connection with petitioner and therefore, it is not open for respondents no.1 & 2 to inquire into same aspects - When respondent no.4 has initiated inquiry and inspected the documents and carried out inspection at the place of petitioner and inquiry is going on in connection with five different Firms at present including M/s. J.M. Enterprise, for which, summon was issued by respondent no.1, whereas M/s Galaxy Enterprise, summon was issued by respondent no.2 - Hence, present petition deserves consideration - The respondents no.1 & 2 are directed to transfer papers/documents to respondent no.4 for necessary inquiry/investigation in connection with both Firms viz. M/s. J.M. Enterprise and M/s. Galaxy Enterprise - Petitioner is directed to co-operate with respondent no.4 and produce necessary/required documents demanded by respondent no.4 for the purpose of investigation/inquiry and thereafter, it is open for respondent no.4 to pass an appropriate order/take appropriate action in accordance with the law: HC
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-548-CESTAT-CHD
Kokuyo Camlin Ltd Vs CCE & ST
CX - The issue requires consideration is as to whether Adjudicating Authority was correct in rejecting appellant's claim for value addition in terms of Notfn 56/2002-CE as amended - On an application made by appellants, Commissioner informed the appellants that value addition comes to 45.73% as against the claim of 58.6% or 62.65% by appellants - Appellants have submitted a detailed written reply and a Statutory Auditor's certificate to establish their claim - The commissioner, vide letter dated 20.04.2010, which is a SCN for the purposes of impugned case proposes to fix the value addition @ 45.73% and vide final order totally rejects the claim of appellant - Thus, Adjudicating Authority has gone beyond the scope of SCN - As the proposal and final order are contrary to each other, principles of natural justice have been grossly violated - The only finding that Adjudicating Authority gives is that whereas the application is dated 29.09.2009, Statutory Auditor's report is dated 30.09.2009 and therefore, it cannot be relied upon - The reasoning given by Commissioner is not acceptable for the reason that Statutory Auditor report was submitted before finalisation of value addition by Commissioner - Therefore, Commissioner had no justified reasons to reject Statutory Auditor's certificate - The impugned order does not show any reasons to controvert Statutory Auditor's report - Therefore, calculations and figures as given by Statutory Auditor require to be considered - MRP is a notional value and such value cannot be considered for the purposes of arriving at "Sale Value" in terms of Notfn 56/2002-CE - The actual sale value is to be considered - Therefore, Tribunal is inclined to accept the value addition @ 58.60% as arrived by appellants in their letter on the basis of figures that were certified by Statutory Auditor - Appellants have arrived at a special rate of 60.38% - However, looking into the records of case and application submitted by appellants and Statutory Auditor's report, appellants are eligible for special rate of 58.60% as against the rate of 36% provided in table of said notification - Impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
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