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Service Tax - Case Laws
Showing 1 to 20 of 24 Records
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2021 (5) TMI 983 - GAUHATI HIGH COURT
Petitioner awes certain amount to the Government of India on account of settlement of certain dispute which was resolved under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - petitioner approached the authorities for allowing him to pay the due amounts in instalments, which, however, did not elicit any positive response from the authorities - HELD THAT:- This Court is of the opinion that it may not necessary to dwell on the aggregate amount the petitioner is supposed to pay, except the amount which the petitioner has admitted and willing to pay in this petition. As regards other liabilities, if any, it is a matter to be considered by the authorities on its own merit in accordance with law. However, as far as the amount of ₹ 12,36,844.40/- is concerned which is the subject matter of consideration in this petition, the petitioner shall pay the aforesaid admitted amount of ₹ 12,36,844.40/- within 45 days from today. As regards the dues mentioned by Mr. Keyal, it is for the petitioner to approach the competent authority for payment and in instalments, if the authorities agree.
It is made clear that till payment of the aforesaid amount of ₹ 12,36,844.40/- within the aforesaid 45 days, no coercive action shall be taken against the petitioner as regards the said amount.
Petition disposed off.
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2021 (5) TMI 972 - MADRAS HIGH COURT
Maintainability of appeal - appropriate Forum - Refund of the amount already remitted - Allegation is that mandatory formalities such as issuing notice were not complied with - Questions of facts involved - HELD THAT:- Since factual aspects are involved, the petitioner can as well avail the alternative remedy of appeal. Taking note of the facts and circumstances of the case, if the appeal is filed before the appellate authority within a period of three weeks from the date of receipt of a copy of this order, the appellate authority will entertain the same without reference to limitation.
Petition dismissed.
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2021 (5) TMI 954 - CESTAT CHANDIGARH
Refund of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess filed by them lying unutilized in their cenvet credit account - Time Limitation - GST credit or not - HELD THAT:- As the appellant has reversed the said amount in their GST account, in terms of the amendment to Section 140 of the CGST Act, 2017 on 30.08.2018, the said amount shall remain lying unutilized in their cenvat credit account on account of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess as good as on 01.07.2017. Further, as admitted by both the sides that in terms of Section 140 of the Act, the amount of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess cannot be transferred to GST account then it is only a cenvat credit of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess lying unutilized as on 01.07.2017 in their cenvat credit account. Therefore, the contention of the ld. AR that it is a GST credit, is not acceptable when the provision of law is very much clear that the said credit cannot be transferred to GST Regime.
Whether the refund claim filed by the appellant is barred by limitation or not? - HELD THAT:- The amendment to Section 140 came after one year of the switching to the GST Regime on 30.08.2018 which is applicable retrospectively. In that circumstances how the appellant could have filed the refund claim within one year from 01.07.2017 till 30.08.2018, when there was no provision of law existed, when amendment itself takes on 30.08.2018, therefore, the relevant date of filing the refund claim shall be 30.08.2018 and within one year of the said date, the refund claim has been filed by the appellant - the refund claim filed by the appellant is not barred by limitation.
Whether the decision in the case of M/S BHARAT HEAVY ELECTRICALS LTD. (EXCISE & TAXATION DIVISION) VERSUS COMMISSIONER CENTRAL GOODS SERVICE TAX, CENTRAL EXCISE & CUSTOMS, BHOPAL (MADHYA PRADESH) [2019 (4) TMI 1896 - CESTAT NEW DELHI] can be relied in this case or not? - HELD THAT:- In the case of M/s Bharat Heavy Electricals Ltd, this Tribunal laid down in law That Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess cannot be transferred to GST account and as they were lying unutilized in their cenvat credit account on 30.06.2017, the assesee is entitled to claim the refund thereof. In other words, if the appellant could have filed the refund claim before 30.06.2017 of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess, the same is admissible to the appellant.
The appellant is entitled to file the refund claim; accordingly, the impugned order is set aside - refund claim is allowed which is subject to verification of the records - appeal allowed - decided in favor of appellant.
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2021 (5) TMI 952 - CESTAT CHANDIGARH
Interest on delayed Refund of service Tax - time limitation - calculation of interest on refunds after three months from the date of filing of the claim of refund - HELD THAT:- The decision of the Hon’ble Apex Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], wherein the Apex Court has cleared that if the assessee filed the refund claim and the same is to be sanctioned within three months from the date of filing of the refund claim and the same is not sanctioned, then the Revenue has to pay the interest thereon on till its realization after three months from the date of filing of the refund claim although there may be litigation in the matter..
Admittedly, the appellants have filed the refund claims during the period 2006-09 and 2009-10 respectively and the same have not sanctioned within three months from the date of filing of the refund claim. In these circumstances, the appellants are entitled to claim interests on delayed refunds after three months from the date of filing of the refund claim till its realization.
The claim of interest is allowed - appeal allowed - decided in favor of appellant.
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2021 (5) TMI 923 - KARNATAKA HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - compliance with the requirement to ascertain amount claimed as pre-deposit with respect to the dispute, that the amount of pre-deposit has not been appropriated for any other demand other than the demand reflected in the show-cause notice and that there have to be verification as to the factual assertions of the petitioner by looking into the challans of the petitioner - HELD THAT:- This court has disposed of W.P.No.11485/2020 on 17.02.2021 [2021 (3) TMI 1018 - KARNATAKA HIGH COURT] examining in detail the aspect relating to adjudication of pre-deposit and accordingly, no detailed order as regards to the legal contentions advanced in common in the present petition as were raised in W.P.No.11485/2020 is required while observing that legal aspects have been elucidated in the said order - While taking note of the observations made in W.P.No.11485/2020, the estimate made in Form SVLDRS-2 and 3 are set aside. The first respondent to re-work the statement in SVLDRS-3 after arriving at a conclusion regarding the deposit over and above the amount of ₹ 20,27,249/- that has already been given credit as per the earlier SVLDRS-2 form, which is now set aside. Insofar as other deposits are concerned, the respondents to verify after taking note of the submissions at Annexure-'E' to the petition and affording an opportunity of personal hearing for the purpose of clarification by the petitioner and then arrive at a fresh statement in SVLDRS-3.
While taking note of the observations made in W.P.No.11485/2020, the estimate made in Form SVLDRS-2 and 3 are set aside. The first respondent to re-work the statement in SVLDRS-3 after arriving at a conclusion regarding the deposit over and above the amount of ₹ 20,27,249/- that has already been given credit as per the earlier SVLDRS-2 form, which is now set aside. Insofar as other deposits are concerned, the respondents to verify after taking note of the submissions at Annexure-'E' to the petition and affording an opportunity of personal hearing for the purpose of clarification by the petitioner and then arrive at a fresh statement in SVLDRS-3.
Petition disposed off.
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2021 (5) TMI 869 - CESTAT NEW DELHI
Liability of Interest - point of taxation - point of time when liability to pay service tax on re-insurance services provided under the pool agreement arises - extended period of limitation - penalty.
Extended period of limitation - HELD THAT:- Even when an assessee has suppressed facts, the extended period of limitation can be evoked only when “suppression’ is shown to be willful and with an intent to evade payment of service tax - Commissioner has not recorded any finding that even if the appellant had suppressed the fact of having received the amount, it was willful and with an intent evade payment of service tax. In fact, the Commissioner observed that there was no malafide intention on the part of the appellant to suppress this fact - the extended period of limitation could not have been invoked. Any demand up to March 2013 would, therefore, barred by limitation.
Delay in Payment of Service Tax - HELD THAT:- Section 64VB (5) of the Insurance Act read with rule 59 of the Insurance Rules, clearly excludes re-insurance from the general rule that no risk should be assumed until the premium is paid. The consideration in re-insurance policies can be like in any other contract (past, present or future).
The issue, therefore, that arises for consideration is when service is rendered and service tax is due but the appellant is not able to pay it until the accounts are squared up and thereby delays paying the service tax, than whether in such a situation the appellant is liable to pay interest on the delayed payment, considering that the delay is not on account of the fault of the appellant - A similar issue comes up often in Central Excise matters when the transaction value of the goods is unknown, either partly or fully when the goods are cleared. This happens with Government contracts which fix the price based on a formula, several elements of which (say cost of raw material or minimum wages of the labour) are not known at the time of clearance. Later, when they get the details, they pay the differential excise duty.
Although this is a service tax matter, the provisions are pari materia and if service tax is due on a date but is paid much later because data is not available with the assessee, interest has to be paid. Thus, the demand of interest from the appellant for the period post March 2013 upto March 2014 is justified.
Penalty - HELD THAT:- While dealing with the issue as to whether the extended period of limitation under the first proviso to section 73 of the Finance Act could have been invoked in the facts and the circumstances of the case, it has been found as a fact that the suppression of facts was not willful nor was there any intent to evade payment of service tax. Thus, for all the reasons stated while dealing with the extended period of limitation, penalty under section 78 of the Finance Act could not have been imposed upon the appellant. The Commissioner was, therefore, not justified in imposing penalty under section 78 of the Finance Act as there was no deliberate suppression of facts with intention to evade payment of service tax.
In the result it is held that since the extended period of limitation could not have been invoked the demand of any interest up to March 2013 is not justified. However, the demand of interest for the period post March 2013 up to March 2014 is sustained. Penalty could also not have been imposed under section 78 of the Finance Act - Appeal allowed in part.
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2021 (5) TMI 836 - CESTAT AHMEDABAD
Refund of excess service tax paid - Demand of differential rate of tax on Preferred Location Service - CENVAT Credit - input services - Renting of Immovable Property Service - HELD THAT:- The issue of Preferential Location Charges and natural bundling thereof with main service under Section 65(3) of the Finance Act, 1994 has been decided in the case of M/S SJP INFRACON LIMITED VERSUS THE COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, NOIDA [2018 (12) TMI 253 - CESTAT ALLAHABAD] where it was held that In the present case construction of residential complex service is the service which gives essential character to the package of the service and, therefore, the charges are essentially required to be bundled with the single service namely construction of residential complex service - thus, the Preferential Location Charges were correctly subjected to Service Tax at same rate as that of Construction of Residential Complex Service by the Appellant and the differential demand of Service Tax alongwith interest and penalty therefore must be quashed and set aside. The Appellant also becomes entitled to consequential relief in form of refund as claimed for by them on this count, in terms of Section 11B of the Central Excise Act, 1944.
Renting of immovable property service - HELD THAT:- The SCN itself suggests that the demand is raised since the service availed is essentially a business entity and the property is to be used for accommodation of Directors/Senior Management personnel. This in itself is not sufficient to hold that the nature of service was that of Renting of immovable property for commercial use. The Appellant has adduced evidence in form of Electricity bills and Certificate from Co-Op Housing Society, which shows that only one Director was permanently residing at the leased accommodation premises and the property had not commercial use. There is no dispute as such that the leased premises was used only as residential dwelling of the Director - the demand on this count also must be quashed and set aside.
Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 834 - CESTAT NEW DELHI
CENVAT Credit - denial on the ground that the subject goods being attached to earth, are immovable in nature - whether the finding of the Tribunal that the towers, shelters and accessories used by the appellant for providing ‘business support services’ are immovable property is correct or not? - HELD THAT:- The finding recorded by the Delhi High Court in VODAFONE MOBILE SERVICES LIMITED, INDUS TOWERS LIMITED, TOWER VISION INDIA PRIVATE LIMITED, BHARTI INFRATEL LIMITED, VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (11) TMI 713 - DELHI HIGH COURT] where it was held that machine or apparatus annexed to the earth without its assimilation by fixing with nuts and bolts on a foundation to providing for stability and wobble free operation cannot be said to be one permanently attached to the earth and therefore, would not constitute an immovable property - It is seen that the decision of the Bombay High Court in M/S. BHARTI AIRTEL LTD. (EARLIER KNOWN AS BHARTI TELE-VENTURES LTD.) VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2014 (9) TMI 38 - BOMBAY HIGH COURT] was considered by the Delhi High Court.
Whether the assessees are entitled to claim CENVAT credit on the towers and shelters either as capital goods or inputs in terms of Rule 2 (a) and (k) of the CENVAT rules and whether towers and shelters would qualify as “accessories”? - HELD THAT:- The finding recorded by the Delhi High Court in VODAFONE MOBILE SERVICES LIMITED on this issue and held that There is actual use of tower and shelters in conjunction with the Antenna and the BTS equipment in providing the output service, which also includes provision of the Business Support Service.
Whether the Tribunal erred in applying the nexus test with reference to MS angles and channels as according to the appellant what was bought to the site were towers, shelters and accessories in CKD/SKD conditions for providing services? - HELD THAT:- Delhi High Court in VODAFONE MOBILE SERVICES LIMITED has held that the CESTAT erred in applying the nexus test and therefore, credit has to be extended to the duty paid MS angles and channels.
Whether the appellant was justified, in terms of rule 4(1) of the CENVAT Rules, in claiming CENVAT credit of excise duty paid by the manufacturer of towers and shelters after receipt of such towers and shelters at the premises? - HELD THAT:- Delhi High Court in VODAFONE MOBILE SERVICES LIMITED has held that The entitlement of CENVAT credit is to be determined at the time of receipt of goods. The fact that such goods are later on fixed/fastened to the earth for use would not make them a non-excisable commodity when received. Therefore, this question is answered in favour of the assessee and against the Revenue.
Whether emergence of immovable structure at intermediate stage (assuming without admitting) is a criterion for denial of CENVAT credit? - HELD THAT:- Delhi High Court in VODAFONE MOBILE SERVICES LIMITED, INDUS TOWERS LIMITED, TOWER VISION INDIA PRIVATE LIMITED, BHARTI INFRATEL LIMITED, VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (11) TMI 713 - DELHI HIGH COURT] that towers and pre-fabricated shelters form an essential ingredient in the provision of telecommunication service as they are used for the purpose of supplying the service and would qualify as ‘inputs’ and, therefore, CENVAT credit can be availed.
Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 833 - CESTAT AHMEDABAD
CENVAT Credit - input services - services of commercial and industrial construction availed by them for construction of their premises - HELD THAT:- The issue regarding admissibility of Cenvat credit on Commercial and Industrial Construction Service used for construction of building which in turn are used for renting purpose has been settled by Hon’ble High Court of Madras in THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI VERSUS M/S. DYMOS INDIA AUTOMOTIVE PRIVATE LIMITED [2018 (9) TMI 1135 - MADRAS HIGH COURT] where it was held that as construction service is an eligible service for credit for providing output service of renting of immovable property and without construction of the building, the renting of immovable property cannot be provided, the credit remains allowed.
It is noticed that the renting of Immovable Property Service came into existence with effect from 01.06.2007 and therefore credit of Commercial and Industrial Construction Service for the period prior to levy of service tax on Renting of Immovable Property Service cannot be allowed. The credit of services availed after 01.06.2007 is however admissible.
Cenvat credit for prior period - other output services namely Banking and Financial Services, Goods Transport Agency Service, Management and Maintenance and Repair Service and Sponsorship Service - HELD THAT:- The services specified above have no relation to the building. If at all these services are only be provided from very small part of the building the rest of the building has been rented by the appellant which at the material time was not taxable service. Thus, the admissibility of credit needs to be examined from that aspect.
Moreover it is also not clear if the said services Banking and Financial Services, Goods Transport Agency Service, Management and Maintenance and Repair Service and Sponsorship Service were provided from same premises or from elsewhere. Admissibility of the credit is the question of law and therefore the appellant’s can raised at the stage of first appellate level also. Since this aspect has not been examined by the lower authorities the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration after taking note of above observations.
Appeal allowed by way of remand.
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2021 (5) TMI 832 - CESTAT AHMEDABAD
Levy of service tax - remuneration paid by a company to the Managing Director and the whole time Executive Director - salaries or not - Managing Director and whole time Executive Director of the appellant company - employees or not - scope of Service under section 65B(44) of the Finance Act, 1994 - HELD THAT:- The Learned Commissioner despite the submission of the appellants that the remuneration paid by the appellants to the managing director and the executive director of the company was shown as “Salary” and declared in Form- 16 which is a income tax return for the salary income decided that the remuneration paid is not a salary but directors remuneration. Therefore, the same is liable to service tax in the hands of the appellant - though in the Income tax return the remuneration was declared as salary income but it is a self declaration. However, whether such income is a salary income or otherwise the same can be established on the basis of employment conditions for employment of directors as company’s employees. In the entire proceedings the appellant have not produced the appointment order of the directors as employees containing the terms and conditions of the employment.
The matter needs to be reconsidered taking into account not only the position of income tax but also on the basis of terms and conditions of the employment - appeal allowed by way of remand.
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2021 (5) TMI 802 - CESTAT AHMEDABAD
Classification of services - Manpower Recruitment Agency Service - conversion of raw material to soap and detergent on behalf of M/s Nirma Limited in the factory of M/s Nirma Limited - HELD THAT:- Very identical issue in the appellant's own case for the previous period i.e. June 2005 to June 2010 was considered by this Tribunal in Service Tax Appeal Nos. 2327 of 2011, 768 of 2011 and 10391 of 2013. In these appeals this Tribunal has passed a Final Order in MESSERS SUREEL ENTERPRISE PVT. LTD., M/S. SUREEL ENTERPRISE P. LTD. VERSUS C.C.E. & S. T- AHMEDABAD-III [2019 (10) TMI 1245 - CESTAT AHMEDABAD] whereby it was held that the appellant's activities amount to manufacture and does not amount to service of Manpower Recruitment Agency Service. Accordingly, the appeals were allowed.
This Tribunal following various judgment namely, RAMESHCHANDRA C. PATEL VERSUS COMMR. OF SERVICE TAX, AHMEDABAD [2011 (11) TMI 415 - CESTAT, AHMEDABAD], JUBILANT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD [2013 (9) TMI 358 - CESTAT NEW DELHI] and Shiv Narayan Bansal [2013 (12) TMI 733 - CESTAT NEW DELHI] held that contract between the appellant and M/s Nirma Limited is of contract manufacturing hence demand under manpower supply cannot be made.
Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 559 - MADRAS HIGH COURT
Levy of Service Tax - works contract service - construction of additional godowns as accorded by the Government of Tamil Nadu vide G.O.(Ms).No.119, Cooperation, Food and Consumer Protection Department, dated 05.11.2014 - HELD THAT:- Though clause No.12(a) was withdrawn from the Mega Exemption Notification, it was reintroduced vide notification No.6/2015, dated 01.03.2015 issued by the department of Revenue and Finance Ministry, Government of India. The withdrawal notice was issued on 01.03.2015 but it came into effect on 01.04.2015. Since there was still some ambiguity as regards the treatment of the subject matter for the period from 01.04.2015 to 01.03.2016, to deal with the same, Section 102 of the Finance Act, 2016 was brought in.
The second respondent clearly erred in proceeding on the premise that the exemption on which, the appellate order was predicated no longer held good. On this sole ground, the order impugned in the writ petition has to go. When the order suffers from a patent illegality, it is certainly open to the aggrieved party to invoke the writ jurisdiction of this Court - petitioner is a public sector undertaking. It is funded entirely by the Government. Even for the construction activities in question, the allocation was made only by the Government of Tamil Nadu. Such construction activities have been explicatively exempted by the Mega Exemption Notification issued on 20.06.2012. Of course, for a short duration, exemption was not available.
Petition allowed.
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2021 (5) TMI 462 - TELANGANAN HIGH COURT
Defaulter under the SVLDRS scheme or not - failure to pay the amount mentioned in SVLDRS-3 in time - Seeking adjustment of refund under Income Tax with amount payable under SVLDRS - modification of garnishee notice based on Form No.SVLDRS-3 issued by 2nd respondent - seeking restraint on respondent nos.1 and 2 from taking any coercive or punitive actions against petitioner-Company’s officials and directors - HELD THAT:- The 3rd respondent is a creature of the Income Tax Act, 1961 and is obliged to discharge his functions strictly in accordance with the provisions of the Income Tax Act, 1961; and he is not entitled to act in violation of the said provisions of the said Act by allowing a set off of Income tax refund due to the petitioner against Service tax dues of the petitioner under the Finance Act, 1994 - Merely because the Principal Chief Commissioner of Income Tax, Hyderabad vide letter dt.20.11.2020 accorded approval for adjusting income tax refund against dues to the Service Tax Department, the action of the 3rd respondent, which is per se illegal and in violation of Section 245 of the Income Tax Act, 1961, does not get validated.
It would be a travesty of justice to allow the plan of respondent No.s 1 to 3 to somehow or other ensure that petitioner gets the tag of a ‘defaulter’ in payment of Service Tax dues, to succeed.
The petitioner shall be deemed to have made payment of ₹ 18,91,37,548/- determined under Form No.SVLDRS-3 dt.28.01.2020 before 30.06.2020; the respondents are restrained from declaring that the petitioner had committed a default under the SVLDRS Scheme 2019 and also restrained from taking any coercive action against the Directors, officials of the petitioner or against the petitioner; the respondents 1 and 2 are directed to release to the petitioner the amount of ₹ 12,01,23,118/- out of the Income Tax refund amount of ₹ 30,92,60,666/- payable to it within four (4) weeks; the 3rd respondent shall pay petitioner interest on the sum of ₹ 30,92,60,666/- from 21.5.2020 ( the date of expiry of the 3 month period as per Section 243 (1) (b) of the Income Tax Act,1961) till 24.11.2020 at 15% per annum within four (4) weeks; the respondents 1 and 2 shall also pay petitioner interest at 15% per annum on ₹ 12,01,23,118 ₹ 30,92,60,666/- less ₹ 18,91,37,548/- = ₹ 12,01,23,118/- from 25.11.2020 till date of payment within four (4) weeks; costs of ₹ 10,000/- shall also be paid by respondent no.1 and respondent no.3 to the petitioner within four (4) weeks.
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2021 (5) TMI 440 - CESTAT KOLKATA
Levy of service tax on freight charges - GTA Services - Goods Transport Agency or not - Appellant being manufacturer - No consignment note was issued by any of the transporters - consignment notes as per Rule 4B of the Rules - HELD THAT:- In the premises, as per legal principles decided by different Benches of the Tribunal, delivery of the goods by the transporters in the instant case does not fall under GTA services in terms of Section 65(105)(zzp) of the Act. Consequently, the said transporters cannot be said to be “Goods Transport Agency” within the meaning of Section 65(50b) of the Act.
As per legal principles decided by different Benches of the Tribunal, delivery of the goods by the transporters in the instant case does not fall under GTA services in terms of Section 65(105)(zzp) of the Act. Consequently, the said transporters cannot be said to be “Goods Transport Agency” within the meaning of Section 65(50b) of the Act. - Reliance can be placed in the case of M/S. EAST INDIA MINERALS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUNANESWAR-II [2020 (3) TMI 851 - CESTAT KOLKATA].
The impugned order of the lower appellate authority is unsustainable - Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 401 - MADRAS HIGH COURT
Rejection of application under SVLDRS - Rectification of mistake - Sabka Vishwas (Legacy Dispute Resolution) Scheme SVLDRS, 2019 - As returns filed for the period December, 2015 to June, 2017 contained a short fall in remittance of tax, as a result that the petitioner decided to take advantage of (Scheme), which extended benefits to an errant tax payer, in the settlement of tax, interest and penalty dues under various indirect tax enactments - issue raised on merits is that no opportunity of hearing has been granted to the petitioner prior to the impugned rectification - as per defence reading of Section 127(2) with Section 128 reveals that a notice is called for only in those cases where the estimate arrived at by the Designated Committee exceeds the estimate arrived at by the declarant and in the present case, the impugned notices only constitute rectification of apparent errors for which no notices is required.
HELD THAT:- According to the petitioner, the application would have to quantify the tax payable month wise, since the half yearly returns filed take into account the tax payable, per month. This argument has however to be rejected in the light of Section124(1)(c)(iii) as per which computation of ‘tax due’ is based upon the return filed under the respective indirect tax enactment. The Finance Act, 1994, in terms of which service tax is levied, provides for a half yearly return. The tax dues would thus be as per Section 124(1)(c)(A) and not 124(1)(c)(B) as computed by the petitioner.
Section 128 grants power to the Designated Committee to correct an arithmetical or clerical error apparent on the face of record, either suo moto or upon such error being pointed out by the declarant. The impugned rectifications do not fall within the ambit of an arithmetic or clerical error and enhance the quantification of tax dues under Section 127. Hence, a notice ought to have been issued to the petitioner in this matter, prior to revising the SVLDRS. The legal argument of the petitioner is accepted. A conscious of the position that a rectification can be effected only by the Designated Committee and would normally not have undertaken this exercise.
Detailed submissions have been heard by me on the nature of the dispute and the difference in computation and I believe that it would not be appropriate that I remand these matters on the technical issue of lack of opportunity.
The stand of the petitioner has, as noticed by me at paragraph 9 above, no legal sanction and the interpretation put forth does not merit acceptance.No justification to relegate the petitioner to the authority, particularly seeing as this litigation pertains to an amnesty scheme where proceedings should, as far as possible, be fast tracked and not delayed.
These writ petitions are dismissed. Liberty is granted to the petitioner to approach the authorities seeking some more time to remit the dues contemplated under the revised SVLDRS. Such representation, if made, within a period of two (2) weeks from date of receipt of order, shall be disposed after hearing the petitioner, within a period of four (4) weeks from date of receipt of the application.
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2021 (5) TMI 352 - CESTAT CHANDIGARH
Maintainability of application - non-compliance with the requirement of pre-deposit - Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 - HELD THAT:- As the appellant has made the compliance of the condition of pre-deposit as prescribed under Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944, therefore, the impugned order qua dismissal of appeal on the ground of non-compliance of the provisions of Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 for non deposit of mandatory pre-deposit is set aside.
The ld. AR also submitted that they want to file cross examination but as the impugned order is only discussed about the dismissal of appeal for non-compliance of mandatory pre-deposit, therefore, the cross examination shall not help the ld. AR to raise the issue of non-consideration of limitation by ld. Commissioner (Appeals) as Revenue has not challenged the impugned order. Therefore, the request of ld. AR to file the cross examination is rejected.
Matter remanded back to the ld. Commissioner (Appeals) to decide the issue only on merits in view of various judicial pronouncements on the issue - appeal allowed by way of remand.
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2021 (5) TMI 287 - JHARKHAND HIGH COURT
Principles of natural justice - service of order in original - levy of service tax - refund of amount paid under protest - HELD THAT:- This Court is of the view that the dispute, as to whether the petitioner was earlier communicated or not communicated the order dated 20.3.2017 cannot be considered by this Court in writ jurisdiction, particularly when it has been recorded in Annexure 11 that the same was earlier delivered to the petitioner at their business address as well as residential address. However, if the petitioner is disputing the delivery, it is for the petitioner to demonstrate the same before the appropriate authority.
This Court is not inclined to entertain the present writ petition against the order in original dated 20.3.2017 Accordingly, the present writ petition is dismissed as not maintainable.
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2021 (5) TMI 283 - CESTAT CHANDIGARH
Reversal of excess availed CENVAT Credit - inadvertent mistake/clerical mistake of the appellant while filing ST-3 return ending March 2014 - HELD THAT:- It is a fact on record that for the period ending 31.03.2014, the appellant shown the balance in cenvet credit as 1,05,705/- in their ST-3 return and opening balance on 01.04.2014 was shown as 4,71,397/-. In these circumstances, it is crucial to examine the records of the appellant pertaining to cenvet credit account whether the appellant has inadvertently made a mistake while filing the ST-3 return for the quarter ending March 2014 or intentionally has taken the excess cenvet credit on 01.04.2014. These facts can be verified from the records of the appellant. The said ascertainment of the said fact was to be done by the adjudicating authority which the adjudicating authority has not done at the time of adjudication after issuance of show cause notice to the appellant.
The adjudicating authority is directed to verify the records of the appellant within a reasonable time. The matter is remanded back to the adjudicating authority to verify the records and pass an appropriate order - Appeal disposed off by way of remand.
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2021 (5) TMI 223 - MADRAS HIGH COURT
Recovery of admitted dues of service tax to be paid by the petitioners - petitioner would fairly state that the arrears are admitted and the orders of assessment giving rise to such demands have attained finality - HELD THAT:- In light of the fact that the impugned notice is only for collection of admitted dues that have become final and no legal flaw or infirmity has been raised in this regard, this writ petition has no merit and is dismissed.
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2021 (5) TMI 164 - PUNJAB AND HARYANA HIGH COURT
Rate of interest on delayed payment of service tax - at what rate petitioner is liable to pay interest i.e. 15% or 24%? - HELD THAT:- Admittedly, the petitioner firm started its service after completing registration formalities in July, 2011 and the respondents have calculated the interest liability from the first quarter of Financial Year 2011-12. If the petitioner firm has started its services in July 2011, there cannot be any demand for the first quarter of 2011-12. As per the contention of respondents, petitioner made delayed payment of service tax between August, 2016 and February, 2017, i.e. the time when aforesaid notification was in force i.e. 14.05.2016.
The notification fixed the rate of simple interest @ 24% in case where any amount is specifically collected as service tax and still not deposited with the Central Government on or before the date on which such payment became due whereas rate of 15% is fixed for any other situation - In the case in hand, it is the specific stand of petitioner that it did not specifically collect the tax from the service recipients. The respondents have quantified interest 24% per annum on the basis of Notification dated 01.03.2016 presuming that the petitioner has specifically collected some amount as service tax and still not deposited with Central Government, whereas the petitioner, in the invoices issued during the period in question did not collect any amount specifically mentioning it as service tax. The grant of benefit of cum-tax value in M/S BALAJI MANPOWER SERVICES, FARIDABAD VERSUS UNION OF INDIA AND ORS [2019 (10) TMI 540 - PUNJAB AND HARYANA HIGH COURT], further supports the case of the petitioner.
The action of the respondents to charge interest @ 24% in accordance with Notification dated 01.03.2016 is arbitrary and not sustainable in the eyes of law - the impugned order modified to the extent of charging interest @ 15% - petition allowed in part.
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