More Judgements

1. Home
2. More Judgements

GST – Section 65 of the CGST Act, 2017 – Audit of Cancelled dealer – Petitioner applied for cancellation of its registration on the ground that it had ceased to be liable to pay tax due to closure of business - The petitioner’s registration was cancelled on 1 April 2023 - Respondents issued notice dated 21 August 2024 under Section 65 to conduct an audit for the year 2020-21. The petitioner challenge the notice and the subsequent preliminary audit findings - Whether the provisions of Section 65 of the CGST/SGST Act dealing with audit would apply to a person who was registered under the Act for the period for which ... [Read more]

GST – Section 65 of the CGST Act, 2017 – Audit of Cancelled dealer – Petitioner applied for cancellation of its registration on the ground that it had ceased to be liable to pay tax due to closure of business - The petitioner’s registration was cancelled on 1 April 2023 - Respondents issued notice dated 21 August 2024 under Section 65 to conduct an audit for the year 2020-21. The petitioner challenge the notice and the subsequent preliminary audit findings - Whether the provisions of Section 65 of the CGST/SGST Act dealing with audit would apply to a person who was registered under the Act for the period for which an audit is ordered but who ceases to be registered on the date the audit is ordered – HELD - the definition of "registered person" under Section 2(94) of the CGST/SGST Act does not exclude a person whose registration has been cancelled - the objective of Section 65 is to verify the correctness of the records, returns, and other documents maintained or furnished by the registered person, even if such registration is subsequently cancelled. Further, the cancellation of registration under Section 29(3) does not affect the liability of the person to pay tax and other dues, which can be determined before or after the date of cancellation - There is an obligation cast on a person in whose case of audit is conducted to comply with the directions of the tax authorities under Section 65(5) and these obligations are not affected even if registration is subsequently cancelled. This is made clear from the provisions of Section 29(3) of the Act. If the contention of the petitioner that because they are de-registered, they are not covered by the provisions of Section 65 is accepted, then it would lead to provisions of Section 29(3) dealing with discharge of obligation under the Act or the Rules redundant. It is a settled position that any interpretation that will make the Act's provisions redundant or nugatory cannot be accepted - Respectfully disagree with the views expressed by the ld. Single Judge of the Madras High Court in Tvl. Raja Stores case - the provisions of Section 65 would be applicable for conducting the audit of a financial year when a person was registered, even if such person ceases to be registered at the time of ordering the audit – the petition is dismissed [Read less]

Central Excise – Cenvat Credit, GTA Service - Whether the appellant are entitled for Cenvat Credit in respect of service tax paid on outward transportation under reverse charge mechanism in the admitted fact that the sale of excisable goods is on FOR basis – HELD - it is admitted fact that the sale of excisable goods is on FOR basis and in respect of supply of such excisable goods the appellant have availed the service of transportation on which the appellant have paid the service tax which has been availed as Cenvat Credit - on the identical facts, this Tribunal has decided the matter in favour of the assessee and hel... [Read more]

Central Excise – Cenvat Credit, GTA Service - Whether the appellant are entitled for Cenvat Credit in respect of service tax paid on outward transportation under reverse charge mechanism in the admitted fact that the sale of excisable goods is on FOR basis – HELD - it is admitted fact that the sale of excisable goods is on FOR basis and in respect of supply of such excisable goods the appellant have availed the service of transportation on which the appellant have paid the service tax which has been availed as Cenvat Credit - on the identical facts, this Tribunal has decided the matter in favour of the assessee and held that in the case of sale of goods on FOR basis, when the freight is integral part of the assessable value on which excise duty was paid, the assessee is eligible for the Cenvat Credit on outward transportation - the appellant is eligible for Cenvat Credit on outward GTA service - the impugned order is set aside and the appeal is allowed [Read less]

The ratio of the judgment of the Hon’ble Supreme Court in Bharti Airtel case would also apply at the stage of committing error while submitting final return under GSTR-1 - Merely because of an error being committed by a particular company, which causes loss to the purchaser company, the provisions of the Act need not be interpreted to suit them. The law is settled that a person who is engaged in business has to be well versed with the provisions of law including the time frame provided under the said provisions - the writ petition seeking permission to rectify the GSTR-1 return after the expiry of the limitation period i... [Read more]

The ratio of the judgment of the Hon’ble Supreme Court in Bharti Airtel case would also apply at the stage of committing error while submitting final return under GSTR-1 - Merely because of an error being committed by a particular company, which causes loss to the purchaser company, the provisions of the Act need not be interpreted to suit them. The law is settled that a person who is engaged in business has to be well versed with the provisions of law including the time frame provided under the said provisions - the writ petition seeking permission to rectify the GSTR-1 return after the expiry of the limitation period is rejected – the petition is dismissed [Read less]

GST - Anticipatory Bail, IPC offences, Multiple prosecutions - Applicants seeking anticipatory bail in an FIR filed against them for offenses under the CGST Act and the IPC - Petitioners argued that they were already prosecuted under the CGST Act for the same set of facts and that prosecution under the IPC should be barred - Whether prosecution under the IPC is barred when the same set of facts also constitutes an offense under the CGST Act - HELD - there is no absolute bar on prosecution under the IPC merely because the same set of facts also constitutes an offense under the CGST Act. Relying on Section 26 of the General ... [Read more]

GST - Anticipatory Bail, IPC offences, Multiple prosecutions - Applicants seeking anticipatory bail in an FIR filed against them for offenses under the CGST Act and the IPC - Petitioners argued that they were already prosecuted under the CGST Act for the same set of facts and that prosecution under the IPC should be barred - Whether prosecution under the IPC is barred when the same set of facts also constitutes an offense under the CGST Act - HELD - there is no absolute bar on prosecution under the IPC merely because the same set of facts also constitutes an offense under the CGST Act. Relying on Section 26 of the General Clauses Act and various Supreme Court judgments, the court observed that an act or omission can constitute an offense under both the IPC and a special enactment, and the offender can be prosecuted and punished under either or both enactments, though they cannot be punished twice for the same offense - the IPC provides for more severe punishment compared to the CGST Act and the mere fact that the petitioners were earlier prosecuted under the CGST Act does not preclude their prosecution under the IPC – the petitioners are granted anticipatory bail considering that they had already undergone substantial incarceration in the CGST Act case, were not absconding, and the allegations in both the FIR and the CGST Act complaint were overlapping – the petitions are disposed of [Read less]

GST - Sections 17(5)(c) and 17(5)(d) of the CGST Act, 2017 – Construction of immovable property as "plant or machinery" - Whether the construction of immovable property carried out by the petitioner amounts to "plant or machinery" under Section 17(5)(d) of the CGST Act – HELD – the Supreme Court in the Safari Retreats case has held that the question of whether a building or immovable property can be classified as a "plant" under Section 17(5)(d) is a factual determination that has to be made based on the functionality test, i.e., whether the construction of the immovable property is essential for carrying out the act... [Read more]

GST - Sections 17(5)(c) and 17(5)(d) of the CGST Act, 2017 – Construction of immovable property as "plant or machinery" - Whether the construction of immovable property carried out by the petitioner amounts to "plant or machinery" under Section 17(5)(d) of the CGST Act – HELD – the Supreme Court in the Safari Retreats case has held that the question of whether a building or immovable property can be classified as a "plant" under Section 17(5)(d) is a factual determination that has to be made based on the functionality test, i.e., whether the construction of the immovable property is essential for carrying out the activity of the registered person - the petitioner is granted liberty to the issue of whether the construction of immovable property carried out by the petitioner amounts to "plant or machinery" within the meaning of Section 17(5)(d) of the CGST Act in appropriate proceedings – the petition is disposed of [Read less]

Customs - Warehousing, Provisional Release, Re-export - Appellant imported goods declared as "Printed Circuit Board" (PCB) and filed B/E for warehousing the goods - DGI concluded that the consignment was mis-declared with respect to description, quantity, and value. Upon examination, the quantity of PCBs was found to be less than declared, and many were found to be old and used - The goods were placed under seizure, and a show cause notice was issued. The appellant requested permission to re-export the goods, which was granted subject to the execution of a bond for the full value and a bank guarantee - Whether the appellan... [Read more]

Customs - Warehousing, Provisional Release, Re-export - Appellant imported goods declared as "Printed Circuit Board" (PCB) and filed B/E for warehousing the goods - DGI concluded that the consignment was mis-declared with respect to description, quantity, and value. Upon examination, the quantity of PCBs was found to be less than declared, and many were found to be old and used - The goods were placed under seizure, and a show cause notice was issued. The appellant requested permission to re-export the goods, which was granted subject to the execution of a bond for the full value and a bank guarantee - Whether the appellant is eligible for relaxation from the security of Rs.4 Crores demanded in the provisional release order for re-export of the goods – HELD - in the case of re-export of goods, regardless of any alleged offence, there would be no duty implication - in cases where the goods are proposed to be re-exported, the redemption fine and penalty should be minimal or set aside, as the goods are not meant for home consumption - the present case is on a stronger footing as the goods were meant for warehousing in the SEZ, and it cannot be expected that a person operating in the SEZ or warehousing in the SEZ can have a malafide intention to evade duty. Therefore, a bond for the total value of the goods is sufficient for releasing the seized goods for re-export, and the appellant is not required to provide the additional bank guarantee of Rs.4 Crores - the appellant is allowed to re-export the goods only on the execution of a bond for the value of the goods without any bank guarantee or any other security – the appeal is allowed [Read less]

Service Tax - Directors' Remuneration, Employer-Employee Relationship - Whether the remuneration paid to the Directors is liable to service tax under reverse charge basis - Revenue argued that the Directors' names were not appearing in the pay register of the company and provident fund was not deducted, indicating no employer-employee relationship - appellant contended that the remuneration was recorded as salary in the books of account and TDS was deducted under the 'salary' head as per Section 192 of the Income Tax Act, proving the existence of an employer-employee relationship - Whether the remuneration paid to the dire... [Read more]

Service Tax - Directors' Remuneration, Employer-Employee Relationship - Whether the remuneration paid to the Directors is liable to service tax under reverse charge basis - Revenue argued that the Directors' names were not appearing in the pay register of the company and provident fund was not deducted, indicating no employer-employee relationship - appellant contended that the remuneration was recorded as salary in the books of account and TDS was deducted under the 'salary' head as per Section 192 of the Income Tax Act, proving the existence of an employer-employee relationship - Whether the remuneration paid to the directors is liable to service tax under RCM – HELD - the remuneration paid by the appellant to the directors was clearly in the form of salary, as evidenced by the TDS deduction under the 'salary' head in the Income Tax records. The Tribunal is several judgments has held that where the company's records show the payments to directors as salaries, TDS is deducted under Section 192 of the Income Tax Act, the relationship between the company and the directors is that of employer-employee and therefore, the remuneration paid is not taxable under the negative list of services under Section 65B(44) of the Finance Act, 1994 - the remuneration paid by the appellant to the directors is in the form of salary and not liable to service tax under reverse charge basis – the impugned order is set aside and the appeal is allowed [Read less]

GST - Input Tax Credit on Demo Vehicles – Challenge to order passed by the Appellate Authority of Advance Ruling denying the benefit of Input Tax Credit on demo vehicles that were capitalized in the books of account by the authorized dealers – Eligibility of ITC on demo vehicles in cases where such vehicles are capitalized in the books of account by the authorized dealers – HELD - A clarification of availability of Input Tax Credit in respect of demo vehicles, has been issued vide Circular No.231/25/2024-GST, dated 10.09.2024 - as per the provisions of the CGST Act, where the demo vehicles are used by the authorized ... [Read more]

GST - Input Tax Credit on Demo Vehicles – Challenge to order passed by the Appellate Authority of Advance Ruling denying the benefit of Input Tax Credit on demo vehicles that were capitalized in the books of account by the authorized dealers – Eligibility of ITC on demo vehicles in cases where such vehicles are capitalized in the books of account by the authorized dealers – HELD - A clarification of availability of Input Tax Credit in respect of demo vehicles, has been issued vide Circular No.231/25/2024-GST, dated 10.09.2024 - as per the provisions of the CGST Act, where the demo vehicles are used by the authorized dealers to promote further sale of motor vehicles of the similar type, such vehicles appear to be used in the course or furtherance of business of the authorized dealers. Further, where such vehicles are capitalized in the books of accounts by the authorized dealer, the said vehicle falls in the definition of "capital goods" under the CGST Act. Accordingly, the availability of ITC on demo vehicles is not affected by the capitalization of such vehicles in the books of account of the authorized dealers, subject to the provisions of the Act - the petitioner is entitled to the benefit of ITC on the demo vehicles in accordance with the clarifications issued by the CBIC - The AAAR and AAR ruling of denial of benefit of Input Tax Credit to demo vehicles is set-aside and the writ petition is allowed [Read less]

Customs - Remission of Duty, Fire Accident, Duty-free Imports - appellant, a 100% EOU, suffered a fire accident at its manufacturing premises, resulting in the loss of raw materials, semi-finished/finished goods, and capital goods - The appellant applied for remission of Central Excise Duty and Customs Duty on the destroyed goods, which was rejected by the Commissioner - Whether the appellant is entitled to remission of Central Excise Duty and Customs Duty on the goods destroyed in the fire accident under the relevant provisions - HELD - there was no dispute regarding the occurrence of the fire incident and the destruction... [Read more]

Customs - Remission of Duty, Fire Accident, Duty-free Imports - appellant, a 100% EOU, suffered a fire accident at its manufacturing premises, resulting in the loss of raw materials, semi-finished/finished goods, and capital goods - The appellant applied for remission of Central Excise Duty and Customs Duty on the destroyed goods, which was rejected by the Commissioner - Whether the appellant is entitled to remission of Central Excise Duty and Customs Duty on the goods destroyed in the fire accident under the relevant provisions - HELD - there was no dispute regarding the occurrence of the fire incident and the destruction of the goods. The appellant was sanctioned the insurance claim by the insurance company, and there was no evidence of any mischief or negligence on the part of the appellant - the Commissioner had raised various deficiencies in the appellant's application, which the appellant did not have an opportunity to explain. Therefore, the impugned order is set aside and matter remanded to the adjudicating authority for reconsideration of the remission application, providing the appellant with an opportunity to address the queries raised by the Commissioner - the appeals are allowed by way of remand [Read less]

Customs - Refund of 4% SAD on import of parts of the Micro Irrigation System – Benefit of Notification 102/2007-Cus – Appellant sought refund of the SAD under Notification No. 102/2007-Cus dated 14.09.2007 on the ground that the imported parts were subsequently sold in the domestic market on payment of applicable VAT/Sales tax - Eligibility for refund of SAD under Notification No. 102/2007-Cus when the goods attracted a NIL rate of VAT/Sales tax - Whether the appellant is eligible for the refund of SAD under Notification No. 102/2007-Cus even though the imported parts were sold as part of micro irrigation systems and n... [Read more]

Customs - Refund of 4% SAD on import of parts of the Micro Irrigation System – Benefit of Notification 102/2007-Cus – Appellant sought refund of the SAD under Notification No. 102/2007-Cus dated 14.09.2007 on the ground that the imported parts were subsequently sold in the domestic market on payment of applicable VAT/Sales tax - Eligibility for refund of SAD under Notification No. 102/2007-Cus when the goods attracted a NIL rate of VAT/Sales tax - Whether the appellant is eligible for the refund of SAD under Notification No. 102/2007-Cus even though the imported parts were sold as part of micro irrigation systems and not as individual parts - HELD - though the appellant sold the imported parts as part of micro irrigation systems, the parts were sold as such without any further processing - The Tribunal, in Agarwalla Timbers Pvt. Ltd. and Ors. v. CC, Kandla and other similar cases allowed refund of SAD even when the imported goods were subjected to some further processing before sale - as long as the goods imported are subsequently sold, the requirement of the notification is fulfilled and the exemption benefit has to be given, irrespective of any further processing - the appellant is eligible for the refund of SAD even though the goods attracted a NIL rate of VAT/Sales tax - as long as the appropriate VAT/Sales tax is paid, the condition of the notification is satisfied, and the refund of SAD is admissible even if the appropriate rate of VAT/Sales tax is NIL - the impugned orders are set aside and the appeals are allowed [Read less]

Service Tax - Bifurcation of Sale and Service Value - Appellant is a manufacturer of water purification systems - The sale of the water purification systems includes erection, commissioning, and installation services as ancillary activities - appellant discharged excise duty on the total value, including the value of the erection, commissioning, and installation services, without any separate collection of service charges - Whether the total value of sale, which includes the value of erection, commissioning, and installation services, should be artificially bifurcated into sale and service, and the service portion be charg... [Read more]

Service Tax - Bifurcation of Sale and Service Value - Appellant is a manufacturer of water purification systems - The sale of the water purification systems includes erection, commissioning, and installation services as ancillary activities - appellant discharged excise duty on the total value, including the value of the erection, commissioning, and installation services, without any separate collection of service charges - Whether the total value of sale, which includes the value of erection, commissioning, and installation services, should be artificially bifurcated into sale and service, and the service portion be charged to service tax – HELD - As per the facts of the present case, the appellant had discharged the excise duty on the total sale value; therefore, the entire transaction is of sale of goods, and the sale prima facie does not attract service tax either before or after the introduction of the negative list on July 1, 2012 - Demand for service tax on the artificially bifurcated value of the machinery is absolutely incorrect - the Chartered Accountant's certificate, which certifies the correct factual position of the sale of goods, was produced for the first time before the Tribunal and needs to be verified by the lower authority - the matter is remanded to the Adjudicating Authority for passing a fresh de novo order after compliance with the principles of natural justice and consideration of the subsequent judgments on the identical issue – the appeal is allowed by remand [Read less]

Kerala Value Added Tax Act, 2003 - Brand name, Higher tax rate – Assessee sold bakery products under the brand name 'Ojin' which was registered under the Trade Marks Act, 1999 - assessing authority applied the higher tax rate of 14.5% on the sales of these bakery products. On appeal, the First Appellate Authority restricted the higher rate to only those cases where the assessee had purchased and resold the products from Ojin Foods Pvt. Ltd., the owner of the brand - the Appellate Tribunal held that the higher rate of 14.5% would apply to all sales made by the assessee under the 'Ojin' brand name, irrespective of whether ... [Read more]

Kerala Value Added Tax Act, 2003 - Brand name, Higher tax rate – Assessee sold bakery products under the brand name 'Ojin' which was registered under the Trade Marks Act, 1999 - assessing authority applied the higher tax rate of 14.5% on the sales of these bakery products. On appeal, the First Appellate Authority restricted the higher rate to only those cases where the assessee had purchased and resold the products from Ojin Foods Pvt. Ltd., the owner of the brand - the Appellate Tribunal held that the higher rate of 14.5% would apply to all sales made by the assessee under the 'Ojin' brand name, irrespective of whether the products were purchased from Ojin Foods Pvt. Ltd. or manufactured by the assessee itself - Whether the Tribunal was justified in applying the higher tax rate of 14.5% on all sales made by the assessee under the 'Ojin' brand name – HELD - since the bakery products sold by the assessee were under the 'Ojin' brand name which was registered under the Trade Marks Act, 1999, the higher tax rate of 14.5% as per the relevant notification would be applicable, irrespective of whether the products were purchased from Ojin Foods Pvt. Ltd. or manufactured by the assessee itself - the brand name registration covered bakery products and the assessee's use of the brand was sufficient to attract the higher rate, even if the assessee did not own the brand - the assessee's petition is dismissed [Read less]

Central Excise - Cenvat Credit Reversal, Limitation Period, Suppression of Facts –Manufacture of cotton made textile articles and cotton blended processed fabrics. Prior to 31st March, 2008, the appellant was exporting the finished products under the DEPB scheme. From 01.04.2008, the appellant started exporting goods under the duty drawback scheme and reversed the Cenvat Credit on the stock of raw material, stock under process, etc. lying as on 31.03.2008 - During the audit of the appellant's financial records for the period of December 2010 to April 2011, the Department found that the appellant had short-reversed the Ce... [Read more]

Central Excise - Cenvat Credit Reversal, Limitation Period, Suppression of Facts –Manufacture of cotton made textile articles and cotton blended processed fabrics. Prior to 31st March, 2008, the appellant was exporting the finished products under the DEPB scheme. From 01.04.2008, the appellant started exporting goods under the duty drawback scheme and reversed the Cenvat Credit on the stock of raw material, stock under process, etc. lying as on 31.03.2008 - During the audit of the appellant's financial records for the period of December 2010 to April 2011, the Department found that the appellant had short-reversed the Cenvat Credit on various inputs like dyes, chemicals, furnace oil, and packing materials used in the finished goods exported under the duty drawback scheme – SCN demanding Cenvat Credit Section 11A(4) of the Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004 - Whether the demand of Cenvat Credit reversal is barred by the period of limitation – HELD - the appellant had informed the department on 28.04.2008 about the reversal of Cenvat Credit availed on various inputs, and the department was fully aware of the facts. Since the facts were known to both the parties, the allegation of "suppression of facts" cannot be sustained to invoke the extended time proviso under Section 11A(4) of the Act - mere failure to declare does not amount to willful suppression, and there must be some positive act from the assessee to find willful suppression. The show-cause notice and the impugned order-in-original are barred by the period of limitation - the impugned order-in-original is set aside as it was barred by the period of limitation – the appeal is allowed [Read less]

Service Tax - Construction of hostel building for educational institute – Demand under Commercial or Industrial Construction Service – Appellant constructed a hostel building for the Gujarat Adani Institute of Medical Science (GAIMS), an educational institute - Department sought to tax this construction activity under the category of 'Commercial or Industrial Construction Service' and also invoked the extended period of limitation - Whether the construction of a hostel building for an educational institute can be taxed under the category of 'Commercial or Industrial Construction Service' - HELD - the construction of a ... [Read more]

Service Tax - Construction of hostel building for educational institute – Demand under Commercial or Industrial Construction Service – Appellant constructed a hostel building for the Gujarat Adani Institute of Medical Science (GAIMS), an educational institute - Department sought to tax this construction activity under the category of 'Commercial or Industrial Construction Service' and also invoked the extended period of limitation - Whether the construction of a hostel building for an educational institute can be taxed under the category of 'Commercial or Industrial Construction Service' - HELD - the construction of a building for an educational institute cannot be considered as a 'commercial or industrial construction service' - in the cases of N.J. Devani Builders Pvt. Ltd., Maulana Azad National Institute of Technology, and the Rajasthan High Court's decision in Jatan Construction Pvt. Ltd. have consistently held that the construction of buildings for educational institutes is not a commercial or industrial activity and is therefore not taxable under this category – Further, the term 'commercial or industrial construction service' would only cover the construction of new buildings or civil structures for commercial or industrial purposes, and the construction of a hostel building for an educational institution does not fall under this category - since the construction of the hostel building for the educational institute is not a taxable service, the extended period of limitation cannot be invoked - the appellant had a bona fide belief that the construction of a building for an educational institute would not be considered a 'commercial or industrial construction service' and therefore, there was no suppression of facts with an intent to evade tax - the impugned order is set aside and the appeal is allowed [Read less]

Service Tax - Short Payment of service tax, Limitation Period, Penalty - appellant was paying applicable service tax on monthly basis only in cases where they received amount in the name of services provided, but not in cases where they received value of services but no amount was received by them in the name of service tax from the service recipient/client - Whether the quantum of demand should be calculated on the basis of ledgers of the service recipient and not on the basis of the profit and loss (P/L) account of the appellant – HELD - the quantum of demand is based on the gross receipt shown in the balance sheet of ... [Read more]

Service Tax - Short Payment of service tax, Limitation Period, Penalty - appellant was paying applicable service tax on monthly basis only in cases where they received amount in the name of services provided, but not in cases where they received value of services but no amount was received by them in the name of service tax from the service recipient/client - Whether the quantum of demand should be calculated on the basis of ledgers of the service recipient and not on the basis of the profit and loss (P/L) account of the appellant – HELD - the quantum of demand is based on the gross receipt shown in the balance sheet of the appellants, and no documentary evidence has been produced by the appellants to show that the receipt shown in the profit and loss account includes the advance security taken from the labor. Hence, the confirmation of demand of duty short paid is upheld - the appeal is partly allowed by upholding the demand for the normal period of limitation and setting aside the demand for the extended period - Whether the benefit of tax value should be granted to the appellant – HELD - the Commissioner (Appeals) has extended the benefit of tax value to the appellant, observing that the appellant has not charged service tax on certain invoices, and the amounts received by the appellants are the price cum tax. Based on this finding, the confirmed amount of short paid duty has been reduced to Rs. 46,58,132/- as against the amount of Rs. 51,80,982/- as was confirmed by the original adjudicating authority - Whether the extended period of limitation has been wrongly invoked while issuing the show cause notice – HELD - there is no element of suppression or concealment on the part of the appellant, and their bonafide belief that whatever tax was charged was only required to be paid is evident from the fact that they were acting on the advice of their clients. Therefore, the extended period of limitation is not invokable in the present case, and the demand for the period prior to the normal period of limitation is barred by time. [Read less]

GST - Pre-deposit, Payment of IGST – Petitioner claimed that the supplies made by it were inter-state supplies exigible to IGST - Respondent treated the supplies as intra-state and levied CGST and SGST - Whether the petitioner has complied with the pre-deposit requirement for filing an appeal before the GST Tribunal - The petitioner also challenged the vires of Section 19(1) of IGST Act and Section 77(1) of CGST and RGST Act of 2017 – HELD - the refund received by the petitioner with regard to IGST has been deposited with the GST Authorities. With the deposit of the amount, the prerequisite of pre-deposit for filing an... [Read more]

GST - Pre-deposit, Payment of IGST – Petitioner claimed that the supplies made by it were inter-state supplies exigible to IGST - Respondent treated the supplies as intra-state and levied CGST and SGST - Whether the petitioner has complied with the pre-deposit requirement for filing an appeal before the GST Tribunal - The petitioner also challenged the vires of Section 19(1) of IGST Act and Section 77(1) of CGST and RGST Act of 2017 – HELD - the refund received by the petitioner with regard to IGST has been deposited with the GST Authorities. With the deposit of the amount, the prerequisite of pre-deposit for filing an appeal before Tribunal stands complied - the determination of the factual aspects is required to be done at the first instance before the vires of the provisions can be gone into. The petitioner is directed to file an appeal before the GST Tribunal within three months from the date of the constitution of the Tribunal, and the Tribunal shall consider the appeal on merits after being satisfied that the condition of pre-deposit has been complied with - no further proceedings for the recovery of the balance amount shall be taken against the petitioner in case the authorities are satisfied that the condition of pre-deposit for filing the appeal has been complied with - The petition is disposed of [Read less]

Customs - DEPB scrips, Telegraphic Release Advice (TRA), fraud - Appeals by importers, license brokers and traders challenging orders passed by the Tribunal regarding the confiscation of DEPB licenses and TRAs, imposition of customs duty under Section 28(1) of the Customs Act, 1962, and penalties under Sections 112(a) and 114(A) of the Act on the ground that the TRAs and DEPBs were forged and fabricated instruments - Whether the importers, who had no prior knowledge of the forged/fabricated nature of the DEPB licenses and TRAs, can be held liable for the duty and interest – HELD - The conclusions of the CESTAT are based ... [Read more]

Customs - DEPB scrips, Telegraphic Release Advice (TRA), fraud - Appeals by importers, license brokers and traders challenging orders passed by the Tribunal regarding the confiscation of DEPB licenses and TRAs, imposition of customs duty under Section 28(1) of the Customs Act, 1962, and penalties under Sections 112(a) and 114(A) of the Act on the ground that the TRAs and DEPBs were forged and fabricated instruments - Whether the importers, who had no prior knowledge of the forged/fabricated nature of the DEPB licenses and TRAs, can be held liable for the duty and interest – HELD - The conclusions of the CESTAT are based upon the results of investigation which have established conclusively that the DEPB scrips and TRAs were fabricated and forged. The parties were thus held to be liable on the ground of fraud which, rightly has been held to vitiate the transactions in full - The liability for duty and interest is confirmed against the importers as they had failed to exercise due diligence and make inquiries about the genuineness of the DEPB scrips and TRAs before using them - the CESTAT was correct in deleting the penalty on the importers and reducing the penalty on the traders and brokers by 50%. However, the penalty on the importers is restored to 50% of the original penalty, as the CESTAT's complete deletion of the penalty was not justified given the findings on the importers' failure to exercise due diligence - Appeals filed by the individual appellants are disposed [Read less]

Service Tax – Cross-utilisation of CENVAT credit, extended period of limitation – Appellant is engaged in manufacturing winding wire, plastic cable and SS wire, as well as providing turnkey project services and erection and commissioning services – Demand of service tax on the ground that appellant had cross-utilized the CENVAT credit of its manufacturing unit to discharge the service tax liability of its EPC division, which was not permitted under the CENVAT Credit Rules, 2004 – HELD - under the provisions of Rule 3(1) and 3(4) of the CENVAT Credit Rules, 2004, a manufacturer or provider of output service is allow... [Read more]

Service Tax – Cross-utilisation of CENVAT credit, extended period of limitation – Appellant is engaged in manufacturing winding wire, plastic cable and SS wire, as well as providing turnkey project services and erection and commissioning services – Demand of service tax on the ground that appellant had cross-utilized the CENVAT credit of its manufacturing unit to discharge the service tax liability of its EPC division, which was not permitted under the CENVAT Credit Rules, 2004 – HELD - under the provisions of Rule 3(1) and 3(4) of the CENVAT Credit Rules, 2004, a manufacturer or provider of output service is allowed to take and utilize the CENVAT credit for payment of excise duty or service tax - the Gujarat High Court in Commissioner of C. Ex. & ST., Bhavnagar vs. Pipavav Shipyard Ltd. and the Bombay High Court in Commissioner of Central Excise, Pune-I vs. S.S. Engineers, held that cross-utilization of CENVAT credit is permissible and there is no separate criteria for a manufacturer and an output service provider to avail such credit - the appellant's contention that it had maintained a single CENVAT credit register is accepted and the finding of the Dept that the appellant had first transferred the credit from the EPC division to the manufacturing unit, is rejected - Since the cross-utilization of CENVAT credit is permissible, the question of invoking the extended period of limitation does not arise – the impugned order is set aside and appeal is allowed [Read less]

GST - E-way bill, Technical glitch – Petitioner engaged in manufacturing rubber products, imported goods from China after payment of IGST - While transporting the goods from the port to its manufacturing facility, the petitioner could not generate the Part-B of the e-way bill due to technical glitches. The goods were intercepted and a penalty was imposed under Section 129(1) of the CGST Act for non-compliance with e-way bill requirements - Whether the levy of a hefty penalty was justified where the petitioner had no intention to evade tax and the non-generation of Part-B of the e-way bill was due to a technical glitch �... [Read more]

GST - E-way bill, Technical glitch – Petitioner engaged in manufacturing rubber products, imported goods from China after payment of IGST - While transporting the goods from the port to its manufacturing facility, the petitioner could not generate the Part-B of the e-way bill due to technical glitches. The goods were intercepted and a penalty was imposed under Section 129(1) of the CGST Act for non-compliance with e-way bill requirements - Whether the levy of a hefty penalty was justified where the petitioner had no intention to evade tax and the non-generation of Part-B of the e-way bill was due to a technical glitch – HELD - the petitioner had no intention to evade tax as the goods were being transported after clearing customs and paying IGST. The non-generation of Part-B of the e-way bill was a minor lapse due to technical glitches and did not amount to a violation warranting a penalty equivalent to two hundred per cent of the tax payable - in such cases, where the contravention is technical and venial in nature, the penalty prescribed under Section 129(1)(a) of the CGST Act should be limited to Rs. 25,000/- instead of the hefty penalty imposed by the authorities - the impugned order is modified and the penalty is reduced to Rs. 25,000/- - the petition is allowed [Read less]

GST - Section 107 of the CGST Act, 2017 - Appeal, Period of Limitation - Power of Appellate Authority to condone delay - filing of appeal beyond the limitation period and even beyond the condonation period of 30 days under the Act - whether the Appellate Authority was legally correct in rejecting the appeals filed beyond the limitation period – HELD - While the provisions of the Act regarding the limitation period for filing appeals are not condemnable under the Limitation Act, the powers of the High Court under Article 226 of the Constitution to condone the delay in filing appeals are not curtailed - the purpose of the ... [Read more]

GST - Section 107 of the CGST Act, 2017 - Appeal, Period of Limitation - Power of Appellate Authority to condone delay - filing of appeal beyond the limitation period and even beyond the condonation period of 30 days under the Act - whether the Appellate Authority was legally correct in rejecting the appeals filed beyond the limitation period – HELD - While the provisions of the Act regarding the limitation period for filing appeals are not condemnable under the Limitation Act, the powers of the High Court under Article 226 of the Constitution to condone the delay in filing appeals are not curtailed - the purpose of the Act is to provide relief to the businesses, and if the delay in filing appeals is not condoned, it would render the businesses remediless - the Appellate Authority would be bound by the provisions of the Act, but the High Court can exercise its jurisdiction under Article 226 to condone the delay in appropriate cases, considering the facts and circumstances of each case - the delay in filing the appeals is condoned and the Appellate Authority is directed to hear and decide the appeals on merits on merits without going into the question of delay/limitation or pre-deposit – the writ petitions are allowed [Read less]

Tamil Nadu VAT Act, 2006 - Inter-State Stock Transfer, Failure to surrender Transit Pass - Petitioner failed to surrender transit passes in respect of consignments at out check-post - Whether the failure to surrender transit passes creates a presumption that the goods were sold within the State, which can be rebutted by the assessee by producing other reliable evidence – HELD - The Supreme Court and the Tamil Nadu Taxation Special Tribunal have held that the failure to surrender transit passes creates a rebuttable presumption that the goods were sold within the State. The assessee can rebut this presumption by producing ... [Read more]

Tamil Nadu VAT Act, 2006 - Inter-State Stock Transfer, Failure to surrender Transit Pass - Petitioner failed to surrender transit passes in respect of consignments at out check-post - Whether the failure to surrender transit passes creates a presumption that the goods were sold within the State, which can be rebutted by the assessee by producing other reliable evidence – HELD - The Supreme Court and the Tamil Nadu Taxation Special Tribunal have held that the failure to surrender transit passes creates a rebuttable presumption that the goods were sold within the State. The assessee can rebut this presumption by producing reliable evidence to show that the goods were actually transferred as stock transfers outside the State - the assessing authority did not properly examine the material produced by the assessee, including orders of assessment under the Central Sales Tax Act, which showed that the turnover claimed as stock transfers was accepted - the assessee had produced sufficient evidence to rebut the presumption and set aside the impugned assessment order - the impugned assessment order is set aside and the writ petition is allowed [Read less]

GST – Cancellation of registration for non-filing of returns, delay in filing appeal, restoration of registration - The petitioner claimed that due to the partner's heart ailment and hospitalization, he was unable to file the returns and was unaware of the show cause notice and the subsequent cancellation order, which was uploaded on the GST portal - Whether the delay in filing the appeal against the cancellation order should be condoned considering the genuine reason provided by the petitioner – HELD - the reason provided by the petitioner for non-compliance with the relevant provisions of the Act within the stipulate... [Read more]

GST – Cancellation of registration for non-filing of returns, delay in filing appeal, restoration of registration - The petitioner claimed that due to the partner's heart ailment and hospitalization, he was unable to file the returns and was unaware of the show cause notice and the subsequent cancellation order, which was uploaded on the GST portal - Whether the delay in filing the appeal against the cancellation order should be condoned considering the genuine reason provided by the petitioner – HELD - the reason provided by the petitioner for non-compliance with the relevant provisions of the Act within the stipulated time appears to be genuine, as the petitioner was suffering from a health condition and was unaware of the notices and communications sent through the GST portal. Accordingly, the respondents are directed to take suitable steps to enable the petitioner to file the returns and pay the tax/penalty/fine within a specified period, subject to the petitioner complying with certain conditions – the writ petition is disposed of [Read less]

Central Excise – Denial of adjustment of excess duty paid, Levy of interest - Whether Revenue is justified in not allowing the adjustment of excess duty paid by the appellant and thereby charging consequential interest – HELD - the appellant had paid the excess amounts which is would be refundable subject to provisions of Rule 7(6) of Central Excise Rules, 2002 – it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. In the instant case, when the assessee has paid excess duty which is entitled to claim ref... [Read more]

Central Excise – Denial of adjustment of excess duty paid, Levy of interest - Whether Revenue is justified in not allowing the adjustment of excess duty paid by the appellant and thereby charging consequential interest – HELD - the appellant had paid the excess amounts which is would be refundable subject to provisions of Rule 7(6) of Central Excise Rules, 2002 – it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. In the instant case, when the assessee has paid excess duty which is entitled to claim refund, he cannot be taxed with payment of excess duty in the form of interest - the authorities were in error in levying and upholding the levy of interest - the denial of adjustment of excess duty paid by appellant and the consequential charging of the interest by the Revenue is not justified – the impugned order is set aside and appeal is allowed [Read less]

Central Excise - Transit loss of petroleum products, export warehousing – Demand of excise duty on the transit loss up to 1% in Naphtha and ATF cleared during the relevant period meant for export - IOCL had availed the facility of removal of petroleum products without payment of duty from the factory of production to a warehouse or from one warehouse to another warehouse under Rule 20 of the Central Excise Rules, 2002 and Notification Nos. 46/2001 and 47/2001 - Whether petitioner is liable to pay excise duty on transit loss up to 1% on petroleum products cleared from the refinery to the warehouse for export under Notific... [Read more]

Central Excise - Transit loss of petroleum products, export warehousing – Demand of excise duty on the transit loss up to 1% in Naphtha and ATF cleared during the relevant period meant for export - IOCL had availed the facility of removal of petroleum products without payment of duty from the factory of production to a warehouse or from one warehouse to another warehouse under Rule 20 of the Central Excise Rules, 2002 and Notification Nos. 46/2001 and 47/2001 - Whether petitioner is liable to pay excise duty on transit loss up to 1% on petroleum products cleared from the refinery to the warehouse for export under Notification No. 46/2001 read with Circular No. 261 dated 30.10.1985 – HELD – the petitioner is entitled to transit loss up to 1% for non-payment of excise duty as per Circular No. 261 dated 30.10.1985, as Notification No. 46/2001 was still in operation for the purpose of facility of removal of petroleum products without payment of duty for export warehousing - the revisional authority had misinterpreted the Circular No. 804/2005, which pertained only to the storage loss in export warehouse/tanks, whereas IOCL had claimed exemption from payment of excise duty on the transit loss till the products were stored in the warehouse/tanks for the purpose of export - in view of the Notification No.46/2001 not being disturbed by the CBEC read with Circular No.261 dated 30.10.1985, the petitioner would be entitled to transit loss upto 1% for non-payment of duty on the products transferred from the refinery / factory to the place of storage for the purpose of export only - The order passed by the Commissioner (Appeals) is restored to file and the demand raised in order-in-appeal regarding duty, interest and penalty is quashed and set aside – the petition is allowed [Read less]

GST - Chit Funds, Interest, Consideration for supply – Petitioner, engaged in the business of conducting chits, challenge the show cause notice alleging that the interest received from defaulting subscribers to the chits should be subject to GST - Whether the show cause notice issued by the CGST authorities is without jurisdiction – HELD - the relationship between a chit subscriber and a chit foreman is a contractual obligation which creates a debt on the day of subscription. On default, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum. Ther... [Read more]

GST - Chit Funds, Interest, Consideration for supply – Petitioner, engaged in the business of conducting chits, challenge the show cause notice alleging that the interest received from defaulting subscribers to the chits should be subject to GST - Whether the show cause notice issued by the CGST authorities is without jurisdiction – HELD - the relationship between a chit subscriber and a chit foreman is a contractual obligation which creates a debt on the day of subscription. On default, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum. Therefore, the interest received by the foreman from the defaulting subscribers would not be subject to GST, as per the provisions of Notification No. 12/2017-Central Tax (Rate), which provides for a nil rate of tax on transactions by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount – Further, the provisions of Section 15(2) of the CGST Act, 2017 makes it abundantly clear that when interest or late fee or penalty is not on account of delayed payment of any consideration for supply the said amount of interest, late fee or penalty would not partake the nature of consideration for supply - in so far as interest is concerned, the amount charged as interest takes colour from the principal amount upon which such interest is charged and it has no independent existence. In the facts of the present case, the Revenue has no case that the payment of subscription by a subscriber is payment for services rendered by the foreman. Therefore, any interest charged by the foreman on account of delayed payment of subscription cannot partake the nature of consideration for the supply of services – in the instant case, the show cause notice is confined to the interest received from the defaulting subscribers. In such circumstances, it is held that the amount of interest received by the foreman of a chit on defaulting subscriptions cannot be said to be amounts received as consideration for the supply of services – the show cause notices are without jurisdiction and set aside – the writ petition is allowed - Entertainability of writ petition on the ground of availability of an alternate remedy – HELD - where the proceedings are challenged as being without jurisdiction, the availability of an alternate mechanism for resolution of disputes is no ground for the Court to refuse to exercise its jurisdiction under Article 226 of the Constitution - the contention of Revenue that the writ petition is not maintainable due to the availability of an alternate remedy, is rejected. [Read less]

Central Excise – Reversal of Cenvat credit, Manufacture of exempted goods - Demand of 5%/6% of the value of the exempted goods - The Tribunal in its earlier order had remanded the matter to the Adjudicating Authority and directed that the appellant is required to reverse the common Cenvat Credit to the extent that the same pertains to the exempted goods - The Adjudicating Authority concluded that the appellant had correctly worked out the amount of inputs used for manufacturing duty-exempted final products and that the demand of 5/6% of the value of the exempted goods was not legally sustainable. The Revenue appealed aga... [Read more]

Central Excise – Reversal of Cenvat credit, Manufacture of exempted goods - Demand of 5%/6% of the value of the exempted goods - The Tribunal in its earlier order had remanded the matter to the Adjudicating Authority and directed that the appellant is required to reverse the common Cenvat Credit to the extent that the same pertains to the exempted goods - The Adjudicating Authority concluded that the appellant had correctly worked out the amount of inputs used for manufacturing duty-exempted final products and that the demand of 5/6% of the value of the exempted goods was not legally sustainable. The Revenue appealed against the order - Whether the Adjudicating Authority was correct in accepting the Cenvat Credit reversal by the appellant and dropping the balance demand – HELD - the Adjudicating Authority has followed the directions of the earlier Tribunal order and applied the ratio of the relevant case laws, including the Supreme Court judgment in Chandrapur Magnet Works (P) Ltd. v. CCE, Nagpur, wherein it was held that once Cenvat credit is reversed, it is to be considered ab initio not availed - the Adjudicating Authority had verified the documents and the Cost Accountant's Certificate and found that the appellant had correctly worked out the amount of inputs used for manufacturing duty-exempted final products – Tribunal relied on the decision in Mercedes Benz India (P) Ltd. Vs. Commr. of C. Ex., Pune-I, wherein it was held that reversal of Cenvat Credit in respect of the common inputs would be sufficient, and the demand made under 5/6% value of the exempted goods is not legally sustainable - the appeal filed by the Revenue is dismissed by upholding the order of the Adjudicating Authority [Read less]

Central Excise – Larger Bench Order - “Fertilizer” or “Plant growth regulator” - Classification of “Siapton 10L” and “Isabion” Bio-Fertilizer, Bio-Stimulant - Whether the products “Siapton 10L” and “Isabion” would be classifiable under ETI 3101 00 99 as a Fertilizer or under ETI 3808 93 40 as a plant growth regulator; and whether the mode of usage of the product through soil or foliar application is a determinative test for classifying the goods under ETI 3101 00 99 or ETI 3808 93 43 - HELD – The ETI 3101 00 99 and ETI 3808 93 40, when read with the relevant section and Chapter Notes and the HSN... [Read more]

Central Excise – Larger Bench Order - “Fertilizer” or “Plant growth regulator” - Classification of “Siapton 10L” and “Isabion” Bio-Fertilizer, Bio-Stimulant - Whether the products “Siapton 10L” and “Isabion” would be classifiable under ETI 3101 00 99 as a Fertilizer or under ETI 3808 93 40 as a plant growth regulator; and whether the mode of usage of the product through soil or foliar application is a determinative test for classifying the goods under ETI 3101 00 99 or ETI 3808 93 43 - HELD – The ETI 3101 00 99 and ETI 3808 93 40, when read with the relevant section and Chapter Notes and the HSN Explanatory Notes, do not provide a distinction based on the mode of usage of such elements. Thus, the test based on mode of application would not be a correct test - Fertilizers and plant growth regulators are both used in agriculture but serve different purposes. Fertilizers are substances added to the soil or plants to provide essential nutrients like nitrogen, phosphorus, and potassium that plants need to grow. They enhance soil fertility and promote plant growth by providing the necessary elements for healthy development. On the other hand, plant growth regulators are chemicals that influence plant growth and development by affecting physiological processes like cell division, elongation, and differentiation. They can regulate plant growth by promoting or inhibiting certain functions such as flowering, fruit setting, and root development. In a nutshell, fertilizers provide essential nutrients for plant growth, while plant growth regulators control specific aspects of plant growth and development - The two products, namely, Siapton 10L and Isabion merely provide nutrients to the plant. They do not alter the physiological processes in a desired direction. In other words, the amino acids and the nitrogen present help in cell building exercise, and thereby, help the plant grow using the nutrients (nitrogen, phosphorus and potassium). Therefore, the two products Siapton 10L and Isabion are in the nature of fertilizers (bio-stimulants) and not plant growth regulators – Siapton 10L and Isabion merit classification as fertilizers under ETI 3101 00 99 and not as plant growth regulators under ETI 3808 93 40 – the reference is answered accordingly - Conclusion: (i) A plant growth promoter cannot be equated with a plant growth regulator. A plant growth promoter only promotes the growth of the plant and does not inhibit it. On the other hand, a plant growth regulator inhibits, promotes or otherwise alters the physiological processes in a plant. The view to the contrary taken by the Division Bench in the referral order is not correct; and (ii) Siapton 10L and Isabion merit classification as fertilizers under ETI 3101 00 99 and not as a plant growth regulator under ETI 3808 93 40. [Read less]

Service Tax - Renting of Immovable Property, Rent-a-cab Service Facts – Demand of service tax under "renting of immovable property service" for the charges collected from clients for providing a generator during power cuts, and under "rent-a-cab service" for the car rent received from a registered partnership firm in which the appellant's family members were partners - Whether the charges collected by the appellant for providing a generator during power cuts are liable to service tax under the category of "renting of immovable property service" - HELD - the generator charges collected by the appellant from the tenants du... [Read more]

Service Tax - Renting of Immovable Property, Rent-a-cab Service Facts – Demand of service tax under "renting of immovable property service" for the charges collected from clients for providing a generator during power cuts, and under "rent-a-cab service" for the car rent received from a registered partnership firm in which the appellant's family members were partners - Whether the charges collected by the appellant for providing a generator during power cuts are liable to service tax under the category of "renting of immovable property service" - HELD - the generator charges collected by the appellant from the tenants during power cuts cannot be considered as "renting of immovable property service" as the generator is a movable property owned by the appellant and can be placed anywhere in the building. Therefore, the appellant is not liable to pay service tax on the generator charges under this category - the appellant is not engaged in the business of rent-a-cab service, and the amount received from partnership firm was for the day-to-day maintenance of the vehicle owned by the appellant's firm. In these circumstances, the appellant is not liable to pay service tax under the category of "rent-a-cab service" - the appellant is not liable to pay service tax under either of the two categories – the impugned order is set aside and appeal is allowed [Read less]

Central Excise - Rule 8(3A) of Central Excise Rules, 2002 - Default in making duty payment - SCN issued to the appellant alleging that during the period 7th March, 2008 to 21st January, 2009, the appellant was required to pay duty consignment-wise through PLA and was not entitled to utilize Cenvat Credit account during the impugned period - Demand on account of mis-utilization of Cenvat Credit during the defaulted period was confirmed, along with interest and penalty - Whether the appellant can be denied the utilization of Cenvat Credit during the defaulted period under Rule 8(3A) of Central Excise Rules, 2002 – HELD - t... [Read more]

Central Excise - Rule 8(3A) of Central Excise Rules, 2002 - Default in making duty payment - SCN issued to the appellant alleging that during the period 7th March, 2008 to 21st January, 2009, the appellant was required to pay duty consignment-wise through PLA and was not entitled to utilize Cenvat Credit account during the impugned period - Demand on account of mis-utilization of Cenvat Credit during the defaulted period was confirmed, along with interest and penalty - Whether the appellant can be denied the utilization of Cenvat Credit during the defaulted period under Rule 8(3A) of Central Excise Rules, 2002 – HELD - the provision of Rule 8(3A) of Central Excise Rules, 2002 has been declared ultra vires by the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. v. Union of India and the Hon'ble Punjab & Haryana High Court in the case of Sandley Industries v. UOI. Therefore, the Cenvat Credit cannot be denied to the appellant for the utilization of payment of duty during the defaulted period - the demand against the appellant for recovery of Cenvat Credit during the defaulted period is not sustainable, consequently, no penalty is imposable on the appellant - the impugned order is set aside and appeal is allowed [Read less]