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Service Tax - Case Laws
Showing 1 to 20 of 702 Records
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2021 (12) TMI 1436
Rejection of rebate claim - rejection on the grounds that the Applicants had not filed prior declaration in terms of para 3.1 of the notification dated 20.06.2012 - revision application claims that delay in filing of prior declaration is at best a procedural delay and, accordingly, rebate should not be denied - HELD THAT:- In terms of rule 6A, the rebate of service tax, paid on providing services that are exported shall be allowed subject to such “safeguards, conditions and limitations”, as may be specified. Further, on a plain reading, the provisions of para-3.1 of the notification no. 39/2012-ST relating to filing a prior declaration, i.e., a declaration prior to the date of export of service, read with para- 3.2, are in the nature of Safeguards in as much as filing of the prior declaration enables the department to cause necessary verification, so as to satisfy itself that there is no likelihood of evasion of duty, service tax and cess, as the case may be - In the present case, therefore, by not filing the prior declaration, the Applicant has circumvented the safeguards subject to which the rebate is to be allowed in terms of rule 6A. As the sanction of rebate is subject to observance of the safeguards in para 3.1 and as, in the present case, these safeguards have not been observed, the rebate is not admissible.
The Hon’ble Supreme Court, in the case of GOVERNMENT OF KERALA & ANR. VERSUS MOTHER SUPERIOR ADORATION CONVENT [2021 (3) TMI 93 - SUPREME COURT], has, after noting the judgment in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], clarified that in case any ambiguity arises in construction of a beneficial exemption, the benefit of such ambiguity should be granted in favour of what is exempted - In the present case, there is no ambiguity whatsoever regarding the provisions of para 3.1. Therefore, the judgment in Mother Superior case is of no assistance to the Applicants herein. The Applicants are clearly in default of the safeguards specified under notification no. 39/2012-ST and have failed to discharge the burden of proving applicability, as required in terms of Dilip Kumar & Company.
The revision application is rejected.
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2021 (12) TMI 1426
Availment of CENVAT credit without payment of service tax under reverse charge mechanism - Credit availed not utilised - interest also paid for availment of such irregular credit - penalty u/s 77 and 78 of FA - HELD THAT:- In some months, though the appellant had availed Cenvat credit without payment of service tax under reverse charge mechanism, but such irregularly availed credit was not utilized for payment of service tax and also the appellant had discharged the interest liability for availment of such irregular credit. Since, the appellant had compensated the government exchequer by way of payment of interest on the irregularly availed Cenvat credit for the disputed period, it cannot be said that they are liable for reversal of the entire Cenvat credit. Since the credit availed by the department had not been utilized for payment of service tax on the output service and the appellant had paid the interest amount to compensate the Government Revenue for taking of earlier Cenvat credit, the proceedings initiated for denial of the Cenvat benefit and the recovery of the same should not stand for judicial scrutiny.
Levy of penalty under Section 78 - HELD THAT:- The ingredients mentioned in the statute namely, fraud, collusion, willful misstatement etc. are absent in the present case. Taking on irregular cenvat credit, payment of interest thereon and available cenvat credit in the books of accounts were within the knowledge of the department. Hence, invocation of Section 78 will not hold good for imposition of penalty on the appellant.
Penalty imposed under Section 77 ibid - HELD THAT:- The penalty imposed under Section 77 ibid is justified in the circumstances of the present case. Further, the learned Advocate appearing for the appellant also fairly concedes that the case of the appellant is exposed to the penal consequences provided under Section 77 ibid.
The impugned order, to the extent it upheld the recovery of Cenvat demand along with interest and imposition of penalty under Section 78 ibid is set aside and appeal to such extent is allowed in favour of the appellant.
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2021 (12) TMI 1393
CENVAT Credit - input services - Group Mediclaim Insurance - Group Personal Accident Insurance - Insurance on Commercial Vehicle - Insurance on Contractor’s Plant & Machinery - Insurance on Private Cars - period 2011-12 - Rule 2(l) of the Cenvat Credit Rules, 2004 - credit denied on the ground that under the amended definition of Input Service, Group Mediclaim and Group Accident Policies were specifically excluded for consideration as input service.
Group Mediclaim Insurance - Group Personal Accident Insurance - HELD THAT:- The CBEC vide Circular No.943/4/2011-CX dated 29.04.2011 had clarified that if the provisions of service had been completed before 01.04.2011, the credit on such services should be available even if the credit particulars are entered in the Cenvat register after amendment of the definition of input service. Since, on this specific issue, the CBEC has clarified regarding entitlement of credit after the period 01.04.2011 for the services availed prior to such date, the impugned order passed by the Commissioner (Appeals) is denying in Cenvat benefit cannot be sustained. Therefore, the impugned order denying the Cenvat benefit on Group Mediclaim Insurance, Group Personal Accident Insurance, is set aside and the appeal to such extent is allowed in favour of the appellant.
Commercial Vehicle - Insurance on Contractor’s Plant & Machinery - Insurance on Private Cars - HELD THAT:- The appellant did not press for the stand taken in this appeal for allowing the cenvat benefit. Thus, there are no infirmity in the impugned order insofar as the credit on those services was denied to the appellant. Accordingly, the appeal of the appellant to such extent is dismissed.
The appeal filed by the appellant is partly allowed.
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2021 (12) TMI 1269
Maintainability of appeal - pre-deposit of the amount of certain percentage of duty demanded or penalty imposed which was mandatory to be deposited before filing the appeal - section 35F of Central Excise Act, 1944 - HELD THAT:- Perusal of section 35F of Central Excise Act, 1944 makes it apparent and clear that the requirement of this section is mandatory requirement and the failure thereof results in rejection of appeal ‘in limine’ . However keeping in view the acknowledgement of the appellant for pursuing this matter to be adjudicated on merits, it is being reasonable in the interest of justice that the matter be remanded back to the Commissioner (Appeals) with the direction to the appellant to make good the absence of payment of amount of mandatory pre deposit prior for the appeal being heard by Commissioner (Appeals). In nutshell the appellant is allowed an opportunity to make the compliance of the section 35F of Central Excise Act.
Appeal allowed by way of remand.
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2021 (12) TMI 1268
Work contract service - the appellant has received the amount towards the provisions of said services from their service receiver but have not paid the Service Tax on such taxable receipts - extended period of limitation - HELD THAT:- There is no dispute about the fact that the amount of Service Tax for the amount of consideration received by the appellant stand already paid with the Government exchequer, however by the main contractor M/s. Gannon Dunkerley and Co. Ltd. There is also no denial to the fact that during the period there were several pronouncements made not only by this Tribunal but even by the departmental adjudicating authority holding that the sub-contractor is not liable to pay the Service Tax when the main contractor has paid the said Service Tax.
The facts of the case are sufficient to hold that there was no clarity about the individual liability of the sub contractor towards the payment of service tax. Even the Department was not clear on the interpretation of the circulars issued, judgements made and practice followed on sub contractors liability. As such in the case where the main contractor had discharged the Service Tax on entire value of service. These findings are sufficient for me to hold that there cannot be any intentional conduct of the appellant to not to pay the service tax during 2013-14. Alleging fraud mis-statement or suppression of facts upon the appellant in view of prevalent situation is opined to be definite error on part of the Adjudicating Authority below. The onus was otherwise on the Department to prove that short payment of service tax has been made with intent to evade such payment. Apparently and admittedly in the present case the service tax stands already paid with respect to the amount involved in the present appeal, i.e. the amount of consideration received by the appellant/ sub contractor for providing ‘works contract services’ to main Contractor M/s. Gannon Dunkerley & Co. Ltd. The question of any positive evidence proving evasion does not at all arise.
The impugned show cause notice is held to be barred by limitation - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1233
Extended period of limitation - input service credit - it is alleged that the service has been used for construction of properties which do not attract output service tax - HELD THAT:- The instant issue can be decided on limitation itself. The appellant has informed the entire facts relating to availment of credit to the Department. The Appellant has duly informed to the Department with regard to the above disclosure at the time of adjudication as well as in the first appeal, which has not been dealt by both the authorities below. In the said letters, they have categorically stated that they are availing Cenvat credit of input and input services and that the same would be utilised for payment of output liability arising at the time of Renting of properties and in case the properties are sold out, they would reverse the portion of credit attributable to such sale.
The authorities below have not disputed the fact of disclosures made by the Appellant vide the above letters. The Ld. Commissioner (Appeals) in the impugned appeal order has merely reiterated the findings of the original authority without specifically dealing with the submissions made by the Appellant on limitation - there are no positive evidence has been adduced in the SCN dated 16.04.2015 to show any wilful suppression of fact on the part of the Appellant with an intent to evade payment of tax.
The entire period in dispute in the instant case is covered under the extended period of limitation, which is not available to the Department in the absence of any element of fraud or wilful suppression - the impugned demand cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1232
Refund claim - time limitation - Service tax was paid on advance received - later the order was cancelled - refund claim was rejected holding that the same is filed beyond one year of the date of payment of service tax - Section 11B of the Central Excise Act, 1944 - principles of unjust enrichment - HELD THAT:- In this case, the appellant was required to pay service tax in terms of Rule 3 of Point of Taxation Rules, 2011 on advances received in respect of any services to be provided. The said advances so received is required to be adjusted against the amount of service provided by the appellant. Admitted, in this case, no such service has been provided by the appellant. The service tax paid by the appellant is only a provision for payment of service tax on the services which were to be provided later. Therefore, in terms of Section 11B (5) Explanation B (eb) which provides that in case where the duty of excise is paid provisionally under this Act or the Rules made there under, the date of adjustment of duty after the finalization of assessment thereof is the relevant date.
Admittedly, the service tax paid by the appellant was provisionally for the services to be provided later on, but later on, no service has been provided by the appellant and the purchase orders were cancelled. In those circumstances, the amount so paid provisionally is required to be adjusted when the purchase orders were cancelled and the date of which the purchase orders were cancelled is the relevant date for filing the refund claim - it is clear that the refund claims were required to be filed within one year from the date of cancellation of the purchase orders in terms of Section 11B (5) Explanation B (eb) of the ACT, 1944.
The relevant date for filing the refund claim is the cancellation of the purchase orders in terms of Section 11B (5) Explanation B (eb) of the Act - If the refund claims are filed within one year from the date of cancellation of the purchase orders, the same shall be entertained as the refund claim are filed in time.
The issue of passing the bar of unjust enrichment shall be examined by the adjudicating authority based on documents placed by the appellants - matter remanded back to the adjudicating authority who shall entertain their refund claims.
Appeal allowed by way of remand.
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2021 (12) TMI 1188
Time Limitation - CENVAT Credit availed under wrong category - maintenance of proper records or not - penalty - HELD THAT:- Admittedly the appellant have maintained proper books of accounts and there is no allegation that they have filed incomplete statutory return or have left any relevant column of the return blank, which they are required to fill.
Extended period of limitation is not invokable in the facts and circumstances of the case. Further, as substantial proposed demand have been dropped by the Adjudicating Authority and also a large amount have been reversed and not contested, prior to the issuance of the show cause notice. Penalty also set aside.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1103
Maintainability of appeal before the HC - Levy of service tax on commission received in advance, debit card income, Renting of immovable property, services rendered by the Jammu and Kashmir Branch, and business auxiliary services - Recovery of CENVAT Credit with interest and penalty - CESTAT [2020 (2) TMI 1579 - CESTAT BANGALORE] has set aside the demand - HELD THAT:- In the light of the provisions and the judgment [2011 (4) TMI 500 - KARNATAKA HIGH COURT], it is clear that the order passed by the Appellate Tribunal relating to determination of any question having relation to the rate of service taxes which is nothing but taxability of services for the purpose of assessment would lie before the Hon’ble Apex Court under Section 35L(b) of the Act and not to the High Court under Section 35G.
The appeal is not maintainable under Section 35G before this Court. - Decided against the Revenue.
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2021 (12) TMI 1052
Time limitation - time barred assessment - no justification for passing the assessment order under the extended period of limitation - non-filing of return - challenge has been made on the ground that the assessment had become time barred; there was no justification for passing the assessment order under the extended period of limitation - HELD THAT:- The above ground is not a sufficient ground for invoking our writ jurisdiction under Article 226 of the Constitution of India when there is a statutory alternative remedy in the form of provision for appeal i.e., Section 85 of the Finance Act, 1994. That being the position, we decline to entertain the writ petition and relegate the petitioner to the forum of appeal, as provided under the statute. To enable the petitioner to file the appeal, we direct that for a period of three weeks from today, no coercive action shall be taken against the petitioner.
Petition disposed off.
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2021 (12) TMI 1051
Reversal of CENVAT Credit - capital goods or not - lease rentals - set top boxes and other CPE’s supplied to the consumers on the rental basis - HELD THAT:- The issue in respect of the CPE, provided by the appellant on rental basis, which upon deactivation of service have not been returned back by the customer, to the appellants have been dealt by the tribunal in various cases - reliance can be placed in the case of VIDEOCON D2H LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX [2020 (2) TMI 1254 - CESTAT MUMBAI] where it was held that In the absence of any specific statutory provision requiring such reversal along with absence of further availment of credit by any other assessee, it is held that the impugned order is erroneous in its presumption and in application of law.
Reversal not required - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1050
CENVAT Credit - availment and utilization of credit on the basis of the invoices addressed to the assessee, other than the registered office premises - contravention of the rule 3 (i) of the Cenvat Credit Rules 2004 or not - extended period of limitation - HELD THAT:- The issue involved in the present case is squarely covered by the decision of the Tribunal in the case of KINETIC ADVERTISING (I) PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-II [2018 (6) TMI 257 - CESTAT MUMBAI], wherein the Tribunal relying on the decision in MANIPAL ADVERTISING SERVICES PVT. LTD. VERSUS CCE., MANGALORE [2009 (10) TMI 434 - CESTAT, BANGALORE] has held that Appellants are eligible for the credit availed by them on the invoices issued to their branch offices.
However, on perusal of the ST-3 Returns enclosed, it is found that, the appellant has in column of ‘Cenvat Credit Taken’ indicated the credit taken ‘nil’ throughout. Although in the column of ‘Credit utilised’, they have indicated the utilization of credit in each of the Return for every month. Undisputedly, the show cause notice has been issued to them for denial of the credit taken., whereas the appellant has summarized the utilization of the credit as not the credit taken. They have not substantiated their claim by ST-3 Returns to the effect that they have not taken the credit by producing the relevant cenvat credit register - Para 41 of the impugned order cannot be faulted with as the appellant has failed to produce the cenvat credit register before the concerned adjudicating authority. However, this issue becomes irrelevant.
As the demand of service tax is being set aside, so is the demand of interest and penalty imposed on the appellant - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1049
CENVAT Credit - input - non-submission of service tax invoice or some information was missing - short paid tax - suppression of turnover/non-disclosure of true turnovers in the Service Tax Return - levy of interest and penalty - invocation of extended period of limitation - HELD THAT:- The cenvat credit of ₹ 3,780/- with respect to the input service already received from the D.P. Khandelwal & Co is allowed - So far the credit for service tax of ₹ 55,282/- received from N.K. Buildcon is concerned, matter remanded to the Original Adjudicating Authority with directions-if the assessee produces a certificate from N.K. Buildcon in support of this amount along with reference to Bill and Invoice No., the Adjudicating Authority shall accordingly allow this credit.
Short payment of tax - Allegation of suppression of turnover/non-disclosure of true turnovers in the Service Tax Return - HELD THAT:- The appellant has successfully reconciled their turnover figure as per Profit & Loss Account and as per taxable turnover in the Service Tax Return. Accordingly, this ground is allowed and the demand of ₹ 5,50,450/- is set aside.
Invocation of extended period of limitation, whether correctly done - Levy of interest under Section 75 and penalty under Section 78 - HELD THAT:- The appellant is a State Government Undertaking, where 100% shares are owned by the State Government through the Governor of the State. The appellant maintains proper books of accounts, which are subjected to audit. There may be some clerical error in maintaining their records, or as stated, the documents got mis-placed due to shifting of the office. Further, the appellant is working as a nodal agency for the Government Project(s) and are not a Commercial Organisation in the true sense. Further, there is no allegation of suppression or any falsification of the accounts. From the allegations and facts on record, it is observed that these are attributable to the clerical error and lack of proper reconciliation at the time of audit, and before the court below - the extended period of limitation is not invokable. Accordingly, penalty under Section 78 is set aside.
The appeal is allowed and only the issue as regards cenvat credit of ₹ 55,282/- (N.K. Buildcon) is remanded to the Original Adjudicating Authority - Appeal allowed in part and part matter on remand.
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2021 (12) TMI 1048
Classification of services - security services or not - providing armed security guards to public sector banks / undertakings and government departments, and collection of charges for the same - HELD THAT:- The appellant is performing statutory duties and the amount so collected is being deposited in the government treasury. CBEC has issued a Circular No.89/7/2006-ST dated 18.12.2006 clarifying that wherever the charges collected by any sovereign public authority for carrying out any statutory function, the same is not liable to levy of service tax.
Further, there is a CESTAT decision THE DEPUTY COMMISSIONER OF POLICE JODHPUR, SUPERINTENDENT OF POLICE VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, JAIPUR- [2016 (12) TMI 289 - CESTAT NEW DELHI], where it was concluded that the police department which is in the agency of State Government cannot be considered to be a person engaged in the business of running security services. The CESTAT in the said decision has held that the activity undertaken by the police is not covered by the definition of security agency under Section 64(94) of the Finance Act, 1994 - same view has been expressed by the Mumbai Bench of the Tribunal in the case of MUMBAI POLICE VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2018 (4) TMI 418 - CESTAT MUMBAI].
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1015
Refund of tax paid - rents charged on the space which remained unregistered as premises from which ‘output service’ was rendered - after examining the two claims for refund, the file was sent for ‘pre-audit’ and objection, of wrongful availment of credit of tax on rentals paid by the assessee, originating there prompted rejection of the claims- rule 5 of CENVAT Credit Rules, 2004 - HELD THAT:- The scheme of rule 5 of CENVAT Credit Rules, 2004 is abundantly clear. To the extent of eligibility, the assessee cannot be denied refund and the disallowed portion, if any, remains in the credit of the assessee for debit of future tax/duty liability. Therefore, denial of refund does not extinguish the credit but restores it in the account. In the impugned order, there is no finding of disallowance and, on the contrary, the denial has been on the ground of ineligibility for CENVAT credit which is permissible to be ordered only in proceedings initiated under rule 14 of CENVAT Credit Rules, 2004 after issuing notice to the assessee. Neither of the two is evident in the records.
The denial of refund CENVAT credit is incorrect in law in the absence of recovery of credit for ineligibility - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1014
Dropping of demand under Rule 6 of the CCR, 2004 - appeal against the option of reduced penalty of 25% given by the Ld.Commissioner (Appeals) - reversal of Rule 6 of CCR, 2004 on the abated value of Restaurant Services by taking the same as exempted services and applying 6% on the value of exempted services so determined to raise the demand of recovery of common Cenvat credit - HELD THAT:- The issue is no more res-integra in view of CBIC’s CIRCULAR NO 213/3/2019-Service Tax, dated July 05, 2019 wherein it has been clarified by the board that there is no requirement of reversal under Rule 6 of the CCR, 2004 for provision of restaurant services. Thus, the Revenue’s appeal to that extent is liable to be dismissed.
Imposition of penalty on the amounts of Service Tax already paid by the Respondent during the course of audit before issuance of SCN - HELD THAT:- Both the lower authorities have erred in confirming the penalty as it is a settled principle that when tax is paid along with interest before issuance of SCN (other than cases of suppression or willful mis-statement), the Department cannot issue SCN in terms of section 73(3) of the Finance Act, 1994 - In the instant case of the Respondent, the Department has mechanically issued SCN alleging suppression of facts without according any reasons for such allegation.
The appeal of the Revenue to the extent of imposition of penalty on the Respondent is also dismissed - The Departmental appeal is dismissed in entirety and the order of the first appellate authority is modified to the extent of deleting the imposition of penalty - decided against Revenue.
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2021 (12) TMI 960
CENVAT Credit - capital goods - case of department is that since the appellant has transferred the credit from Mumbai to Surat the same is not eligible to them on the ground that they have not complied with the provision of Rule 10(2) of Cenvat Credit Rules, 2004 - HELD THAT:- The appellant initially requested for amendment for the registration as except the change of address there was no change in the constitution of the company or nature of service however, the department has rejected their request therefore, they had no option except to obtain a fresh registration which they had obtained at Surat. As regard availment of credit of 50%, since the 50% of credit was due in the year 2014-15 they have availed this credit in the said year at Surat as their business activity was being carried out at Surat. Therefore, this cannot be treated as transfer of credit from Mumbai to Surat.
From the reading of the aforesaid Rule 10(2) it is absolutely clear that the Rule 10(2) applies only when a provider of output service shifts or transfers his business on account of change in ownership or on account of sale, merger, amalgamation lease or transfer of the business to joint venture with specific provision for transfer of liabilities of such business. In the present case even though the appellant have taken registration in Surat but there is no transfer of business on account of change in ownership the registration taken in Surat is by the appellant themselves. Therefore, Rule 10(2) clearly does not apply in the facts of the present case. Moreover if we read rule 10(1), a manufacture of final product if shifts his factory to another site he has to apply for transfer of the credit but there is no similar provision for service provider in Rule 10(2) that merely because a service provider transferred his business to a different location is operated under his own name, the rule 10(2) does not apply.
As regard the allegation that appellant instead of showing the credit shown opening balance, there are nothing wrong in that because whether it is shown as opening balance or shown as credit the same amount of credit will be available to the appellant - the appellant's taking credit of 50% on capital goods at Surat is absolutely legal and correct and the same cannot be denied.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 959
Classification of services - supply of man power and recruitment services or not - independent contractor carrying out the manufacturing activity in the premises of the service recipient - HELD THAT:- The issue has already been decided by this Tribunal in G. RAMAKRISHNAN, K. BALAKRISHNAN, P. KANNUSAMY, M. ARULPRAKASAM, R. ATHINARAYANAN, S. SUBBURAYALU VERSUS CCE & ST MADURAI [2019 (3) TMI 42 - CESTAT CHENNAI] where it was held that Merely taking such licence or abiding by such labour law, it cannot be said that the contract for executing works within the manufacturing activity would be supply of man power.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 848
Refund of service tax - condonation of delay in filing of claim - carrying out authorized operations in their SEZ unit - service tax paid under reverse charge mechanism for the taxable services received for carrying out authorized operations in SEZ - refund of service tax distributed to SEZ Unit under ISD Invoices under Rule 7 of Cenvat Credit Rules, 2004 - Para 3 (III)(e) of Notification No.12/2013-ST - HELD THAT:- As regard the issue that the respondent is required to file only one refund claim for each quarter in terms of Clause (f) of Para 3 (III) of the notification, firstly, the respondent have admittedly filed only one refund claim for each quarter therefore, it cannot be said that the respondent have filed more than one claim in each quarter. Secondly in the facts that the respondent have filed refund claim in quarter July 2017 to September 2017 which includes the claim of the invoices which are for the period from August 2013 to October 2017 even if, it is assumed that the refund claim for the part of the invoices which were pertaining to earlier quarter filed in the quarter July 2017 to September 2017 only on this ground, refund cannot be denied.
It is settled law that discretion exercised by a statutory authority who is empowered to exercise such discretion cannot be interfered with lightly or routinely. The mere fact that the committee of Commissioners found the reasons assigned to be not convincing, without any basis it is not sufficient for filing a review as the reasons given in exercise of its statutory powers of exercising discretion. In the grounds of appeal there is no averment by the revenue that the reasons assigned suffer from any perversity or are premised on non-existent facts so as to warrant interference with the exercise of the discretion - In the present case it is not only the Deputy Commissioner who has extended the period by recording the reasons but the learned Commissioner (Appeals) also endorsed the said reasoning.
As per the ground of appeal of the revenue, the main contention is that the respondent have not complied with the contention of Para 3(III)(e) of the Notification No.12/2013-ST in as much as the refund claim in case of refund claimed under Table-II of Form A-4 of Notification, the refund claim was filed beyond one year from the date of actual payment of service tax made by the respondent to the registered service provider.
In the present case there is no dispute that the respondent has filed the refund claim within one year from the date of ISD Invoices. It is clear that without the ISD Invoices, refund cannot be filed. As per the format of Table-II in such case it is impossible to file a refund claim from the date of actual payment of service tax to the service provider therefore, the condition prescribed under clause (e) of Para 3 (III) is applicable only in respect of Table-I of Form A-4 - clause 3(III)(e) of Notification No.12/2013-ST is not applicable in respect of refund claim made on the basis of ISD Invoice in Table-II of Form A-4 apended to the said notification.
As per the condition Para 3(III)(e) of notification, the claim for refund shall be filed within one year from the end of the month in which actual payment of service tax was made by such developer or SEZ Unit to the registered service provider. From this condition, it is mandatory that the payment of service tax has to be made by the SEZ Unit. In the present case, only the services covered under the Invoices which are exclusively used by the SEZ Unit and refund of which claimed under Table-I payment of service tax is directly made by the SEZ to the service provider. However, in case all the services which are attributed to the SEZ Unit as well as DTA Unit of the respondent company the payment was made by the Head Office of the respondent SEZ Unit and the credit related to service attributed to the SEZ unit was distributed through ISD Invoice to the respondent’s SEZ Unit - Legislators intention is very clear that one year period is applicable only in case of payment directly made by SEZ Unit and not in a case where the Head Office of the SEZ unit is making the payment.
In the case of expenses of all services received by SEZ Unit can be ascertained only on the basis of input service distribute invoices, on the basis of which the SEZ unit’s books of accounts can be maintained properly and correctly therefore, the ISD Invoice is the only document for all the purposes for the SEZ Units - The words used in clause (e) of Para (III) of notification that prescribes one year from the date of payment by the SEZ Unit should be construed directly and according to which the one year period for filing refund shall apply only in case where the payment is directly made by SEZ Unit for which Table-II is prescribed for claiming the refund in that condition (e) shall be applied in case of refund made in Table-II of Form A-4 accordingly, the condition of Para 3(III)(e) of notification is clearly not applicable in case of refund claim made by the respondent in Table-II of Form A-4 apended to the notification.
In the present case, the main issue is that there is a delay in filing the refund claim which as per the department is in violation of Clause (e) of Para 3 (III). This being a procedural lapse cannot be the ground for denying the substantial benefit of the exemption notification which is granted by way of refund of service tax in the SEZ - it is settled that in case of violation of condition of the notification which is in the nature of procedural lapse, the substantial benefit of the exemption notification cannot be denied.
Even though there is a delay the same was condoned by the lower authority - there are no infirmity in the impugned order.
Appeal dismissed - decided against Revenue.
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2021 (12) TMI 847
CENVAT Credit - input service - capital goods - motor vehicles - proper documents in terms of Rule 9 of Cenvat Credit Rules - period 2011-12 and 2012-13 - HELD THAT:- Admittedly M/s Shivam Motors is a Authorised dealer of M/s Tata Motors Limited and thus a representative of the manufacturer of the motor vehicle. Admittedly, the appellant have produced the invoices of the dealer alongwith invoice-cum-challan issued by M/s Tata Motors Limited, when they initially cleared the goods to their specific counterpart mentioning on the invoice – ‘internal customer’ - the details of excise duty and cess as per the invoice of M/s Shivam Motors is not in dispute, as have been taken notice of in para 2.1 of the show cause notice and also in para 2.2 of the order-in-original.
There is an error on the part of Revenue in appreciating the documents, where a provider of service has received the capital goods manufactured by M/s Tata Motors Limited through its authorised dealer - the show cause notice is mis-conceived and no case of wrong cenvat credit taken as alleged, is made.
Appeal allowed - decided in favor of appellant.
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