Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

The Narasimha Mills Private Ltd. Versus The Commissioner of Central Excise (Appeals) , The Assistant Commissioner of Central Excise

Rejection of declaration under VCES 2013 - Statutory provision of Appeal under VCES - Adjudicating authority vs Designated authority - Held that:- In similar circumstances, the Punjab and Haryana High Court, in its decision in M/s.Barnala Builders s case [2013 (12) TMI 568 - PUNJAB AND HARYANA HIGH COURT ] , has categorically held that the order passed under VCES is appealable. We are unable to accept correctness of instructions issued by the Central Board of Excise and Customs, for the simple r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cond respondent has been described as a designated authority, however, a perusal of the order, dated 15.11.2013 passed by him clearly shows that he has dealt with the issue on merits regarding the eligibility of the assessee/petitioner to avail the VCES scheme and passed a detailed order, dated 15.11.2013 holding that since the petitioner had been issued with show cause notice dated 8.2.2012 demanding service tax of ₹ 21,44,299/- for the period from 1.4.2007 to 31.3.2011, which was confirm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by settled law that giving or pronouncing a decision or order judicially and thereby, I have no hesitation to hold that the second respondent has acted as an adjudicating authority and not as a designated authority.

The remedy of appeal is a creation of a statute. In fact, making a provision of appeal is the statute is to give a hope of success to the aggrieved party who has been affected by the adverse order of the decision maker, who, while passing such order, might have misapplied .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uthority has become final and conclusive for all the purposes and thereby, giving uncontrolled and unquestionable powers to the said authority by virtue of which, he becomes as monopoly over the statute and will certainly act in an arrogant manner.

Commissioner of Central Excise (Appeals) directed to take up the appeal preferred by the petitioner and dispose of the same in accordance with law - Decided in favour of assessee. - Writ Petition Nos.21799 of 2014, And M. P. No. 1 of 2014 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rent of ₹ 5,00,000/-. The 2nd respondent called upon the petitioner to pay service tax on the lease amount and issued a show cause notice to the petitioner alleging that the petitioner has violated Section 68, 69 & 70 of the Finance Act, 1994 (in short, the Act, 1994) and called upon to submit its explanation to the Additional Commissioner of Central Excise, Coimbatore. The petitioner submitted its reply stating that there is no provision in the lease deed for collection of service tax .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

liance along with penalty of ₹ 5,000/- u/s 77[2] and penalty of ₹ 21,44,299/- u/s 78 of the Act. 3. Aggrieved by the said order, the petitioner preferred an appeal and the 1st respondent vide order dated 27.08.2013, modified the said order by allowing the deduction of the tax. In the meantime, the Government introduced a onetime scheme known as Service Tax Voluntary Compliance Encouragement Scheme, 2013 [ in short, VCES ] which enables to pay tax dues in two installments subject to c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

respondent passed an order dated 15.11.2013 rejecting the declaration of the petitioner holding that show cause notice has been issued during the subject period and as such the petitioner is not eligible to avail the benefit of the scheme as per Section 106[1] of the Act and by relying on the Board's circular No.169/4/2013-St dated 13.05.2013. 4. Aggrieved by the rejection of the declaration by the 2nd respondent, the petitioner preferred an appeal dated 24.01.2014 to the 1st respondent her .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pondent, the petitioner would be denied an opportunity to challenge the correctness of the order passed by the 2nd respondent and the petitioner would be left with no remedy. Hence the Writ Petition. 5. A counter affidavit has been filed on behalf of the respondents. The sum and substance of the counter affidavit is that the Commissioner (Appeals) returned the appeal filed by the petitioner against order of rejection, dated 15.11.2013 as inadmissible on the ground that the VCES does not have a s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

an order of adjudication dated 28.3.2013 by the Additional Commissioner of Central Excise, confirming the service tax liability of the petitioner as demanded in the show cause notice dated 8.12.2012. Therefore, when there had been a notice demanding service tax liability from the petitioner, the petitioner is not entitled to file a declaration under the VCES. Though VCES introduced by way of amendment made by the Finance Bill, 2003, it does not mean that all the provisions of the Act, 1994 are a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ubmitting the declaration as prescribed in it. In this case, Section 106 itself prevented the petitioner from filing declaration under the scheme for availing the benefits. The second respondent acted as designated authority and he is not empowered to decide any lis. Therefore, the order of the first respondent returning the appeal is valid in law and therefore, the respondents sought for dismissal of the writ petition. 6. Heard the learned counsel for the petitioner and the respondents and peru .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

scheme. Therefore, he contended that the as against the order of rejection of declaration under the Scheme, an appeal would lie under Section 85 of the Act, 1994. In support of his contentions, the learned counsel relied upon a decision of the Punjab and Haryana High Court rendered in M/s.Barnala Builders & property Consultant versus The Deputy Commissioner of Central Excise & Service Tax, Dera BHassi and others in Civil Writ Petition No.26929 of 2013. 8. The learned counsel appearing f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

laration in order to avail benefit under the VCES itself has been rejected on the ground that a show cause notice was already issued in respect of the tax dues and therefore, in terms of Section 106(2) of the Act, 1994 and in view of the clarification given in Board s Circular No.170/5/2013-ST, dated 8.8.2013, no appeal would lie before the first respondent. Therefore, the learned counsel sought for dismissal of the writ petition. 9. The only issue involved in this writ petition is, whether an a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lie since the said provision provides appeal only as against the orders passed by the adjudicating authority and in the present case, the 2nd respondent who passed rejection order, cannot be construed as an adjudicating authority, but only as a designated authority. 11. In similar circumstances, the Punjab and Haryana High Court, in its decision in M/s.Barnala Builders s case, (cited supra), has categorically held that the order passed under VCES is appealable. It has been held so as under: The .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ectness of instructions issued by the Central Board of Excise and Customs, for the simple reason that after incorporation of the Service Tax Voluntary Compliance Encouragement Scheme into the Finance Act, all other provisions of the Act except to the extent specifically excluded, apply to proceedings under the scheme. The impugned order passed by the Deputy Commissioner of Central Excise and Service Tax would necessarily be appealable under Section 86 of the Indian Finance Act, 1994. . 12. While .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

designated authority. 13. Section 85 of the Act, 1994 is relevant and it reads as under: 85. Appeals to the Commissioner of Central Excise (Appeals).- (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months fr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the word adjudicating authority has not been defined in the Act, 1994. However, Section 2(a) of the Central Excises and Salt Act, 1944 which deals with the definitions, defines "adjudicating authority" as under : "Adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, Collector of Central Excise (Appeals) or .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lly apply to the Act, 1994. Now it is to be seen that whether the second respondent, the Assistant Commissioner of Central Excise, has acted as an adjudicating authority or as a designated authority? 17. It is pertinent to note that though the second respondent has been described as a designated authority, however, a perusal of the order, dated 15.11.2013 passed by him clearly shows that he has dealt with the issue on merits regarding the eligibility of the assessee/petitioner to avail the VCES .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the second respondent herein has given such a categorical finding on going through the facts and circumstances of the case by applying his mind, his decision, in my considered opinion, would fall within the meaning of adjudication which is meant by settled law that giving or pronouncing a decision or order judicially and thereby, I have no hesitation to hold that the second respondent has acted as an adjudicating authority and not as a designated authority. 18. Further, it is relevant to note t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e itself is construed as part and parcel of the Finance Act, all other provisions of the Act except to the extent specifically excluded would automatically apply to proceedings under the scheme and consequently, I am of the view that the order, dated 15.11.2013 passed by the Assistant Commissioner of Central Excise, the second respondent herein is appealable under Section 85 of the Act, 1994. 19. The remedy of appeal is a creation of a statute. In fact, making a provision of appeal is the statut .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

News: RBI Reference Rate for US $

Forum: Duty Drawback & Input Credit - under GST

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Forum: Input tax credit

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

Forum: Excise duty credit on finished stock at additional place of business.

Forum: Manpower Service provider

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.

News: Anti-dumping duty on import of bus/truck tyres from China

News: Fast-track GST refund, else ₹ 65K cr may be stuck: Exporters

Highlight: It is open to the Settlement Commission to use best judgment in arrival of the figure. Nonetheless it has to explain the manner in which the best judgment figure has been arrived at by the Settlement Commission - HC

Highlight: Deemed dividend u/s 2(22)(e) - advances given to societies - in the absence of legal right of the assessee in the said society the amount advanced cannot be treated as deemed income.

Highlight: When electrical installations are treated as plant and machinery the depreciation has to be allowed @ 25% as per provisions contained u/s 32

TMI Note: Capital Gain - transfer of right in the land or transfer of land itself - addition u/s 50C - Harassment to the honest tax payers

Highlight: Option to avail composition scheme under GST by electronically filing an intimation in FORM GST CMP-02 and FORM GST ITC-03 upto 30-9-2017 - See Rule 3(3A)

TMI Note: Does ICDS apply for the purposes of computing exemption u/s 11 to 13.

Highlight: Voluntary Reporting of Estimated Current Income and Advance Tax Liability - CBDT issues draft notification

TMI Note: Certain ICDS provisions are inconsistent with judicial precedents. Whether these judicial precedents would prevail over ICDS.

Highlight: Provisions of ICDS shall prevail w.e.f. AY 2017-18 to the transactional issues dealt therein over earlier judicial pronouncements.

News: Voluntary Reporting of Estimated Current Income and Advance Tax Liability

TMI Note: In case of conflict between ICDS and other specific provisions of the Income-tax rules, 1962 governing taxation of income like rules 9A, 9B etc. of the Rules, which provisions shall prevail.

TMI Note: Does ICDS apply to computation of Minimum Alternate Tax (MAT) u/s 115JB of the Act or Alternate Minimum Tax (AMT) u/s 115JC of the Act.

TMI Note: Where a term has not been defined under ICDS, nor under the Act, but has different interpretations given to it by the courts in tax cases, and in ICAI Accounting Standards, which interpretation would prevail while interpreting ICDS.

TMI Note: Whether the provisions of ICDS apply to a non-resident who claims the benefit of a double taxation avoidance agreement (DTAA).

TMI Note: In case any of the ICDS provisions is contrary to a circular or press release issued by the CBDT, which would prevail over the other.

TMI Note: ICDS-I requires disclosure of significant accounting policies and other ICDS requires specific disclosures. Where is the taxpayer required to make such disclosures specified in ICDS.

Notification: Income Computation and Disclosure Standards (ICDS) - New ICDS to be effective from AY 2017-18

News: RBI Reference Rate for US $

Highlight: GST - Detention of goods under transport - discrepancy in documents - the statutory provisions provide a mechanism for adjudication following detention of goods including for the provisional release thereof pending adjudication - HC



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version