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Service Tax - Case Laws
Showing 41 to 60 of 76 Records
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2021 (7) TMI 629 - CESTAT CHENNAI
Maintainability of appeal - non-compliance of pre-deposit under Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - It is argued by the Ld. Consultant that amount deposited by the appellant towards the service tax should be considered as payment towards mandatory predeposit and the appeal ought to have been considered on merits - HELD THAT:- The appellant has not been given the benefit of Sabka Vishwas Scheme as there was delay in payment of the service tax under the said scheme. Since the amount paid by the appellant is towards the service tax confirmed under the Order-in-Original dt. 24.06.2019, the said payment ought to have been considered towards compliance of pre-deposit having been made before the appeal is taken up for hearing. The Commissioner (Appeals) has issued reminders to the appellant to make pre-deposit by online on several dates even though they have made deposit of more than ₹ 5 lakhs which would suffice 7.5% of total tax demand as required under Section 35F of the Central Excise Act ibid.
Needless to say that even if debit is made in Cenvat account, the same can be considered as sufficient compliance of pre-deposit. This being so, the Commissioner (Appeals) should not have insisted on making further pre-deposit over and above ₹ 5,74,103/- already paid by the appellant.
The view taken by the Commissioner (Appeals) that the appellant has not complied with mandatory pre-deposit cannot sustain - matter is remanded to Commissioner (Appeals) with a direction to decide the case on merits without insisting on any further pre-deposit - Appeal allowed by way of remand.
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2021 (7) TMI 628 - CESTAT BANGALORE
Refund of unutilised cenvat credit of service tax - export of services - receipt of convertible foreign excahnge through third party - rejection of refund on the ground of non-fulfilment of conditions prescribed under Rule 6A of Service Tax Rules, 1994 - ineligible input services or not - HELD THAT:- The appellant have entered Sourcing Service Agreement with WMGS Services Ltd. Located in British Virgin Island and WMGS Netherlands located in the Netherlands and as per the JV agreement, the appellant was directed to raise the invoices in the name of WMGS China JV and accordingly the appellant have been raising invoices directly to WMGS China JV. Further after perusing the terms of both the agreements placed on record by the appellant, it is found that the appellant is providing services to WMGS BVI and WMGS Netherlands in accordance with the Sourcing Agreement without any deviation as per the JV agreement. The appellant has complied with the conditions prescribed under Rule 6A(1)(b) of Service Tax Rules, 1994 because the service recipient is located outside India and further as per Rule 3 of Place of Provision Rules, place of provision of the impugned services will be the location of the service recipient. Also, the appellant have been receiving foreign inward remittances on their export invoices which were coming to the appellant in terms of JV agreement from a designated bank account specifically opened for the said purpose - the appellant cannot be denied the benefit of export of services simply on the ground that payment has been routed through a 3rd party which is also based outside the country.
Denial of refund on Works Contract Service - HELD THAT:- It is found from various invoices submitted by the appellant that the said input service was used towards renovation of the premises occupied by the appellant and the said premises was used towards provision of output services and therefore eligible for the purpose of claiming cenvat credit - Further the Board’s circular dt. 29/04/2011 relied upon by the appellant has clarified that the input service used in modernisation, renovation or repair is eligible for credit and the same thing has been held in the case of M/S ION EXCHANGE I LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, SUARAT-II [2017 (12) TMI 151 - CESTAT AHMEDABAD].
Refund on Insurance Auxiliary Service - HELD THAT:- The learned counsel did not press for the same as the amount involved is small.
Interest on delay in refund - HELD THAT:- As per the decision in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], appellant is also entitled for grant of interest on delayed refund claim beyond the period of three months - the appellant is entitled for the interest on the delayed sanction of the refund.
Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 606 - CESTAT CHANDIGARH
Maintainability of appeal - time barred in terms of Section 85(3) of the Finance Act, 1944 - HELD THAT:- As the issue has already been decided by this Tribunal in the case of M/S DEEP COMMUNICATION AND M/S LALLI COMMUNICATION, M/S CHIK SHACK CABLE NETWORK, M/S DJ COMMUNICATION, M/S UNITED COMMUNICATION VERSUS C.C.E & S.T. LUDHIANA [2021 (3) TMI 1227 - CESTAT CHANDIGARH] where it was held that if we consider the time consumed by the appellants before the Hon’ble High Court is to be excluded than also appeals have been filed before the Ld. Commissioner (Appeals) beyond the time limit prescribed in statute, in that circumstances, I hold that the appeals filed by the appellants are highly time barred.
The appeals are rightly dismissed as time barred by the Ld. Commissioner (Appeals) - Appeal dismissed.
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2021 (7) TMI 573 - CESTAT CHENNAI
Refund of service tax - Service Tax was erroneously paid by SIPCOT on developmental charges - rejection on the ground of time limitation - HELD THAT:- The issue involved is no more res integra as the same issue has been dealt with by the Chennai Bench of the CESTAT in M/S. DYNAMIC TECHNO MEDICALS PVT. LTD. VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE [2021 (4) TMI 888 - CESTAT CHENNAI] where reliance placed in the case of Teknomec Vs. CGST & CE, Chennai [2019 (7) TMI 1416 - CESTAT CHENNAI], where this Tribunal held that when claim has been filed within reasonable time from the date when appellant received intimation from SIPCOT, the refund has to be granted.
The Adjudicating Authority shall ascertain whether the date of refund application satisfies the time limit under Section 11B of the Central Excise Act, 1944 and if so, then the refund shall be issued with consequential benefits - appeal allowed by way of remand.
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2021 (7) TMI 528 - BOMBAY HIGH COURT
Consolidated application seeking leave to amend the petition and for interim relief - HELD THAT:- It is not proper to file such consolidated application. In any case, on this occasion, we grant leave to the petitioners to amend the petition. Amendment to be carried out within three weeks and amended copies of the petition to be supplied to the learned counsel for the respondent within the same period.
A stay is granted to the operation of the adjudication order dated 18/2/2021 subject to the petitioners depositing with the Commissioner of Central Goods and Service Tax 10% of the demanded amount within a period of four weeks from today. It is made clear that if there is failure to deposit within this period, then, the interim relief now granted will stand vacated without any further reference to this Court - application disposed off.
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2021 (7) TMI 520 - MADRAS HIGH COURT
Challenging the order of the settlement application - erroneous demand of interest - HELD THAT:- This Court is of the considered opinion that admittedly the application filed under Section 32E of the 1944 Act, for settling the issues, was entertained by the Settlement Commission. The Settlement Commission also adjudicated the issues with reference to the informations and particulars provided by the assessee. The Settlement Commission accepted the terms of reference and finally granted immunity to the applicant/petitioner from prosecution and the order was passed. The petitioner has no grievance in respect of the other orders passed, except the interest portion directed to be paid by the petitioner.
It is clear that it is an admitted fact that the applicant/petitioner has raised bill on the service recipient charging 100% of the applicable rate of service tax. Having charged service tax at 100% and paying only 50% of the tax to the Government clearly establishes short payment by service provider, attracting interest. Under these circumstances, the Settlement Commission held that interest is chargeable from the date on which the service tax became payable by the applicant/petitioner, as alleged in the show cause notice, as contended by the jurisdictional Commissioner. Thus, the Settlement Commission settled the service tax liability and interest liability at ₹ 81,59,255/- and ₹ 14,61,006/- respectively.
This Court is of the opinion that the order passed by the Settlement Commission, pursuant to the admission made by the parties, need not be interfered with. However, if there is any error apparent on record or if there is any factual error regarding the admitted statements, the Settlement Commission is empowered to rectify such mistakes by following the procedures contemplated. In this regard, the petitioner is at liberty to file an application, if required.
Petition disposed off.
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2021 (7) TMI 465 - MADRAS HIGH COURT
Sabka Viswas (Legacy Dispute Resolution) Scheme - quantification of the amount to be paid - defence taken is that investigation in the matter is still on-going and that the duty component has not been quantified - Circular No.1071/4/2019-CX dated 27.08.2019 - HELD THAT:- The doubt that arises from the quantification in the statement is as to whether the amount is a sum of ₹ 98.00 lakhs or ₹ 75.00 lakhs. This would hinge upon the status of the petitioner as SSI unit or otherwise. Subject to a decision on this aspect, a quantification of duty in both instances has been made at the time of recording of statement seen in the light of Section 121(r) of the Scheme read with clause 10(g) of the Circular dated 27.08.2017.
The matter remanded to the file of R1, who shall complete the exercise by determining this aspect of the matter alone. Had the respondent afforded proper opportunity as required in terms of Section 127 of the Scheme, heard the petitioner and passed a speaking order, this litigation might well have been avoided altogether - petition allowed by way of remand.
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2021 (7) TMI 426 - MADRAS HIGH COURT
Principles of natural justice - contention of the petitioner is that the petitioner has not submitted their explanation or defence statement and requested time on the ground that some Writ Petitions are pending - HELD THAT:- This Court is of the considered opinion that in all other Writ Petitions where the show cause notices are questioned before this Court, this Court passed an order, directing the petitioners to submit explanations and by following the procedures as contemplated under the Act, the final order is to be passed. In view of the said order, the present Writ Petition is also to be remanded back for a fresh consideration by the authorities.
The matter is remanded back to the respondent for fresh consideration by providing an opportunity to the writ petitioner to submit their explanations, documents and evidences and by affording opportunity of personal hearing and thereafter, pass final orders in the manner known to law - Petition allowed by way of remand.
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2021 (7) TMI 415 - CESTAT NEW DELHI
Levy of service tax - Agreeing to the obligation to tolerate the Act - providing maintenance services to the appellant - declared services - whether the Machine Availability clause of agreement dated 17.12.2014 creates the service tax liability upon the appellant? - HELD THAT:- It is clear from the facts that there is no denial on the part of the department, as is apparent from para 4 of the Show cause notice to the fact that the appellant/ service recipient, has already suffered service tax on the invoices raised by M/s. SGSL from time to time. The credit note issued by M/s SGSL, service provider is a refund of excessive amount paid by the appellant on account of defined service to be provided by M/s SGSL. It does not represent any service rendered by the appellant to M/s SGSL so as to attract any service liability of the appellant. The basis of transaction between the parties is the agreement dated 17.12.2014. Perusal thereof makes it abundantly clear that the appellant is service recipient and M/s SGSL is service provider. Hence the payment of service tax can be the liability only and only of M/s. SGSL.
The Machine Availability clause in the present case, to my opinion when read with the entire agreement, there is an apparent intent that the terms of agreement shall not be violated and that the service provider shall not compromise with the quality of service else the commercial interest of the appellant shall remain safeguarded in the form of compensation to be paid by M/s. SGSL. Hence, it cannot, by any stretch of imagination, be stated that the recovery of sum by invoking the said clause is the reason behind the execution of agreement for a accrued consideration.
The amount received by the appellant in terms of Machine Availability clause, from the service provider with reference to maintenance of WTG due to shortcoming in said service is merely an amount to safeguard the loss of appellant. The said amount cannot be called as consideration for the tolerance of service provided and some lacunae thereof nor it makes the appellant the service provider. Infact once the appellant receives compensation for the downfall in service quality, it is because he is not inclined to tolerate the loss as he may suffer on account of said downfall - The concept of ‘Declared Services’ has therefore been wrongly invoked by the Department and the adjudicating authority below.
The findings in order under challenge are not at all sustainable - Appeal allowed.
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2021 (7) TMI 402 - PRINCIPAL COMMISSIONER OF CUSTOMS & CENTRAL TAX (APPEALS-I) HYDERABAD
Sabka Vishvas (Legacy Dispute Resolution) Scheme, 2019 - non-filing of the statutory returns with intent to evade payment of service tax - non-speaking order - circular No. 1072/05/2019- CX dated 25th September 2019 - HELD THAT:- The appellant company filed an application on 31.12.2019 under SVLDRS under voluntary disclosure category by declaring their total service tax liability for the impugned period. The appellant company field the said application after their premises was searched on 20.12.2019 by DGGI, Hyderabad Zonal Unit for alleged evasion of service tax. Therefore, the application filed by the appellant company under SVLDRS was alleged to be in contravention of the provisions of Section 125(1)(f)(i) of the Finance (No 2) Act, 2019, which bars a person from making voluntary disclosure under the Scheme after being subjected to any enquiry or investigation or audit. The appellant company, however, contended that in all cases where enquiry / investigation / audit is not pending as on 30.06.2019 and where tax liability is not quantified, the designated committee is empowered to verify the eligibility in the light of facts of the case.
In the instant case, the premises of the appellant company was searched by DGGI, HZU for alleged evasion of service tax on 20.12.2019 i.e., much after the relevant date i.e., 30.06.2019. Therefore, the appellant company’s case does not fall under the category of cases who have been barred from filing a declaration in terms of Section 125(1)(f)(i) of the Finance (No 2) Act, 2019. It is not the case of the appellant company that they have been barred from filing such declaration under SVLDRS by the department. Indeed they have filed such declaration and the designated committee as per evidence available on record, has also determined t e amount to be paid under the Scheme in the prescribed form called SVLDRS-3. Such Form SVLDRS-3 was issued by the Designated Committee concerned on 09.01.2020. However, since the appellant company failed to pay the tax dues indicated in From SVLDRS-3 within 30 days after its issue, as per the Scheme announced by the Government, the discharge certificate SVLDRS-4 was not issued by the designated committee.
The grievance of the appellant company that when the original authority has taken up the show cause notice for adjudication, as an adjudicating authority he should have considered all their arguments while arriving at the correct tax liability including their eligibility for Cenvat Credit, to be legally tenable - Matter remanded to the original authority with a direction to allow CENVAT credit to the appellant company subject to the conditions laid in the Cenvat Credit Rules, 2004 including production of invoices on which credit was claimed by the appellant company; work out their net service tax liability for the impugned period and pass an appropriate order accordingly.
Extended period of limitation - Penalty - HELD THAT:- The appellant company during the impugned period provided taxable services and also collected service tax. However, they failed to pay the service tax so collected to the Government Exchequer. The appellant company also failed to file ST-3 returns for the impugned period. As rightly held by the original authority, the appellant company’s claim that they did not pay the tax on account of financial crisis is not acceptable in the light of the fact that they had collected the service tax from their customers over and above the service consideration - there are no justifiable reason to differ with the findings of the original authority to the extent of invoking proviso to Section 73(1) of the Finance Act, 1994 for recovery of service tax payable by the appellant company and imposing consequential penalty on them.
When the appellant company collected service consideration along with service tax on the taxable services provided by them during the impugned period, there are no justifiable reason for retaining the service tax so collected without paying it to the Exchequer. Such action of the appellant company clearly reveals culpable mind of the said three persons to evade payment of service tax as they were at the helm of affairs of the appellant company and directly responsible for the activities of the appellant company. As per appellant company’s own admission itself such net service tax evaded is quite huge i.e., more than ₹ 70 lakhs.
The appeal filed by the appellant company is remanded to the original authority - appeal allowed by way of remand.
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2021 (7) TMI 385 - MADRAS HIGH COURT
Seeking direction to Revenue to accept payment pursuant to issuance of Form 3 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 towards full and final settlement of tax dues - HELD THAT:- There are no reason to keep this writ petition pending any more in the light of the position that the petitioner has, according to it, remitted the balance of the amount under its declaration. The petitioner is permitted to make a representation for acceptance of its application under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 within a period of one week from today, accompanied by a copy of this order to the Board and the Board is directed to consider the same and pass appropriate orders within a period of four (4) weeks from receipt thereafter.
Petition disposed off.
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2021 (7) TMI 379 - CESTAT KOLKATA
Refund of service tax - export of goods made under Bills of Export - denial on the ground that the conditions as prescribed in Clause (i) of Paragraph 3 of the Notification No.41/2012-ST dated 29.06.2012 has not been complied with - non-submission of certificate of the Chartered Accountant as prescribed in sub-clauses (A) & (B) - HELD THAT:- The learned Deputy Commissioner of Service Tax has passed a detailed order incorporating the shipping Bill number, date, name of the service provider, invoice number, date etc.etc.. In short he has gone through all the documents and has discussed the conditions of the Notification or eligibility of the refund claim and after making a point-wise observation, has finally sanctioned the refund - The learned Commissioner(Appeals) could have called for the copy of the Cross Objection filed by the assessee as well as copy of the Chartered Accountant’s Certificate. This cannot be the ground to reject the assessee’s claim of refund.
It can be seen that there is no dispute as to the fact that the goods were exported by the appellant assessee. Once it is not in dispute that the services are specified for refund purpose, and since Service Tax was actually paid on specified services pertaining to export activity, in terms of the broad scheme of refund under Notification No. 41/2012-ST as amended with clarifications, refund must be granted to the exporter. It is my considered view that the order passed by the learned Commissioner(Appeals) cannot be sustained as substantive benefit should not be denied to an assessee if conditions are fulfilled.
The impugned order is set aside and the order passed by the learned Adjudicating authority is upheld - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 374 - CESTAT BANGALORE
Refund of service tax paid - claim hit on the ground of time limitation - allegation also that appellant did not produce documentary evidence to prove that the burden of service tax paid by him had not been passed on to their customers - principles of unjust enrichment - HELD THAT:- There is no dispute regarding the taxability of the impugned activity. Further, even before the issuance of the said Circular by the Board, the Tribunal Chennai in the case of Indian Hume Pipe Company Limited vs. CST, Trichy [2008 (7) TMI 71 - CESTAT, CHENNAI] has held that the impugned activity is not taxable under the category of “Erection, Commissioning and Installation Service”.
Unjust enrichment - HELD THAT:- The appellant has placed on record the letters issued by both the service recipient i.e., BSNL and TATA Teleservices in Annexure - D and E which makes it abundantly clear that no service tax has been charged and collected in respect of work orders during the relevant period. Further, on perusal of the work orders in Annexure - F issued by BSNL for the relevant period, it clearly suggests that no service tax was neither charged nor collected by the appellant.
Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 360 - CESTAT NEW DELHI
Refund of service tax - booking of flat cancelled - principles of unjust enrichment - Department formed an opinion that appellant will gain unjust enrichment, as the service tax has already been collected from the customer - time limitation - reckoning of time limit of one year from the relevant date.
Principles of Unjust enrichment - HELD THAT:- It is apparent that Shri K.K. Agarwal had agreed to purchase the residential unit from the appellant and accordingly, had paid the sale consideration of ₹ 8,50,000/- alongwith the amount of ₹ 38,250/- towards Service Tax liability of the appellant. Apparently and admittedly, said amount of service tax has been paid by the appellant to the Department. The another apparent fact is that the deal for sale of the said residential unit stands cancelled and the appellant has returned the amount of sale consideration i.e. ₹ 8,50,000/- to the buyer of the flats Shri K.K. Agarwal. ₹ 38,250 were also supposed to be refunded to him in the given circumstances, though the same has not yet been paid by the appellant. From that perspective it appears to be a case of unjust enrichment to the appellant - But there is enough acknowledgment on part of appellant that the said amount has to be returned to the customer, once it is refunded. As the said amount stands already paid to the Department, the Department is liable to refund the same. Hence it is held the Commissioner (Appeals) has erred while refusing the refund on ground of unjust enrichment.
Time Limitation - HELD THAT:- There are no doubt the service tax was deposited by the appellant on 4th October, 2016 and 24 October, 2016 and the refund claim has been filed on 7th May, 2018 which is absolutely beyond one year from the date of deposit. But admittedly post the said deposit the circumstances arose due to which the transaction value against which the aforesaid service tax was paid, was got returned to the customer due to sale of the flat being not finalized - the date of adjustment in the present case is the date when the money received by appellant need to be refunded alongwith the amount of service tax.
The period of one year, in the given facts and circumstances, shall reckon from 15.10.2017 when appellant returned the amount of sale consideration to Shri K.K. Agarwal instead of 04.10.2016. The refund claim filed on 7th May, 2018 therefore, stands very much within the period of one year.
Thus, both the grounds taken by the Commissioner (Appeals) for rejecting the refund claim are held to be against the appreciation of the relevant facts of the present case. The order, accordingly, is hereby set aside - the appellant is directed to return the amount to Shri K.K. Agarwal within 15 days of receiving the said amount from the Department against the intimation thereof to the Department.
Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 326 - CESTAT BANGALORE
Refund of service tax - Transition of credit to GST - rejection of refund claim on the ground of non-submission of document - also refund claim was filed after the expiry of relevant date - Section 11B of the Central Excise Act - HELD THAT:- Initially the appellant filed the ST-3 returns on 31/08/2017 for the period from April 2017 to June 2017 and utilized the entire cenvat credit and the closing balance was ‘nil’ and in the transitional return in form GST Tran-1, he filed the ‘nil’ value and did not carry forward any unutilized balance of cenvat credit. Subsequently, he realized that he did not avail the cenvat credit and KKC totally amounting to ₹ 16,50,384/- and filed a revised return in view of Section 142(9)(b) of CGST Act, 2017 but the original authority issued to the appellant, a show-cause notice proposing to deny the refund for non submission of documents and on the ground of limitation under Section 11B of the Central Excise Act.
It is found that after the reply to the show-cause notice, appellant reduced the claim of cenvat credit for refund to the tune of ₹ 15,74,893/- by surrendering some amount of cenvat credit and KKC and restricted the refund to ₹ 15,74,893/-. Further both the authorities have not considered the submissions of the appellant that primarily the appellant is claiming the refund of cenvat credit in terms of Section 142(9) (b) of the CGST Act, 2017. Both the authorities have held that refund is time-barred in view of Section 11B of the Central Excise Act, 1944.
The words “notwithstanding anything contrary contain in said law” means that the provisions of this Section will prevail over provisions of existing law except provision of Section 11B(2) of Central Excise Act, 1944. The Section 11B(2) of Central Excise Act, 1944 contains provisions relating to granting of refund in case of unjust enrichment. Thus, as far as conditions of Section 142(9)(b) of CGST Act, 2017 is concerned, the appellant has fulfilled the said conditions and hence is entitled for refund - it is a settled law that whenever two options are available, the assessee may choose the option which is more beneficial for them and in the present case the assessee/appellant has chosen to file the refund claim under Section 142(9)(b) of CGST Act, 2017 which has a overriding effect over Section 11B of Central Excise Act, 1994. The appellant did not choose to carry forward the credit in Tran-1 and preferred to claim cash refund as provided under Section 142(9) (b) of CGST Act, 2017.
The impugned order holding that appellant is entitled for cash refund in view of Section 142(9) (b) of the CGST Act is set aside - case remanded back to the original authority for the limited purpose of verification of the invoices/documents - appeal allowed by way of remand.
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2021 (7) TMI 309 - KARNATAKA HIGH COURT
Failure to remit the service tax - issuance of a pre-show cause notice - violation of the Master Circular dated 10.03.2017 and the Circular dated 19.11.2020 - HELD THAT:- In the present case, it is seen that every attempt made by the respondent to secure information/document from the appeal were stonewalled by the appellant. Though the show cause notice issued by the respondent which was impugned before the learned Single Judge was not preventive in nature but yet an offence report was registered against the appellant - If the appellant desired to seek the benefit of the Master Circular dated 10.03.2017, he is expected to comply with the summons issued by the respondent seeking explanation/documents that were summoned by the respondent. The benefit of the Master Circular cannot be a one-way traffic and the appellant cannot milch the Master Circular to his advantage.
The appellant was not entitled to pre-show cause notice as contemplated under Master Circular dated 10.03.2017 - Appeal dismissed.
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2021 (7) TMI 297 - CESTAT BANGALORE
Refund of Service Tax paid - principles of unjust enrichment - Service tax was paid under wrong head - rejection of claim solely on the ground that certificate of the Chartered Accountant alone is not sufficient to establish that portion of taxes have not been passed on to the buyer - period from 01.04.2008 to 31.03.2009 - HELD THAT:- In the present case, the stand of the appellant from the very beginning was that they are not liable to pay service tax but a SCN was issued to the sister concern demanding the service tax and thereafter the appellant paid the service tax but later on found that they were not liable to pay the service tax and filed the refund claim - it has been consistently held by various Courts that free services rendered by authorized service stations on behalf of the manufacturer are not covered under the definition of taxable service.
The only ground on which the impugned order has rejected the refund claim is that Chartered Accountant certificate alone is not sufficient whereas in the present case the appellant filed the Chartered Accountant certificate and also filed the audited statements of accounts where the service tax paid was written off and the appellant has also produced a certificate from manufacturer which has also certified that the appellant had not made any claim of service tax on free service charges - besides the Chartered Accountant certificate, the appellant has also produced audited statements of accounts as well as the certificate from the manufacturer which should be sufficient to hold that the appellant has not passed the incidence of tax to any other person and hence entitled to claim refund.
Tribunal in the case of CC, Guntur Vs MP Sugar and Chemicals [2006 (12) TMI 349 - CESTAT, BANGALORE] held that certificate issued by the Chartered Accountant has an evidentiary value and should not be rejected lightly because the said certificate has been issued after the verification of the accounts of the assessee.
The impugned order denying the refund is not sustainable in law - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 260 - BOMBAY HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - while granting second personal hearing, typographical / clerical error crept in SVLDRS-2B - principles of natural justice - HELD THAT:- The petitioners’ claim of having deposited a sum of ₹ 50,00,000/- towards service tax liability pursuant to show-cause notice is not denied; and it is required to be ascertained as to whether the payment claimed by the petitioners is towards said liability and as such, hearing was necessary, a room for which is given in the scheme, particularly under section 127. According to the petitioners, they had applied for adjournment in Form SVLDRS-2A and in response even Form SVLDRS-2B had been assigned for such purpose. The revenue as well, as a matter of fact, has referred to that Form SVLDRS-2B had been issued, albeit, there has been typographical / clerical error in the same. It is not denied that on 03/03/2020, the petitioners had requested for hearing on 05/03/2020 and in response thereto, found Form SVLDRS-2B had been issued with error showing hearing to be held on 09/03/2021 but on 07/03/2020 itself impugned order Form SVLDRS-3 has been passed.
It is a peculiar case wherein personal hearing under the scheme could not take place for the errors which are not attributable to the petitioners, resulting in an order running adverse to petitioners’ interest where they have claimed that more than 90% chunk of the amount payable had already been deposited. Thus, this is a case wherein it would not be improper to intervene in the matter and set aside the impugned Form SVLDRS-3.
The matter restored before the Designated Committee for, hearing the petitioners and verification of records and issue a revised Form SVLDRS-3, on verification of factual position of payment of ₹ 50,00,000/- towards liability under the show-cause notice - petition allowed by way of remand.
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2021 (7) TMI 258 - MADRAS HIGH COURT
Levy of service tax - Membership of Clubs and Association Service - HELD THAT:- This issue has been dealt with by the Supreme Court in STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] which judgment the assessing authority did not have the benefit of, at the time when the impugned order-in-original was passed.
The matter remitted to the file of the Assessing authority to be redone afresh - Petition allowed by way of remand.
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2021 (7) TMI 257 - MADRAS HIGH COURT
Seeking Revenue to accept payment pursuant to issuance of Form 3 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - whether original time of 30 days from issuance of Form 3 has been overridden by the Department - N/N. 13 of 2016 dated 01.03.2016 - HELD THAT:- Though the decision of the Board was sought for specifically, an affidavit has been filed by the Commissioner/R5 stating that since the petitioner has not made the remittance within the due date of 30.06.2020, the application ought to be treated as lapsed.
There are no reason to keep this writ petition pending any more. The petitioner is permitted to make a representation within a period of one week from today, accompanied by a copy of this order to the Board and the Board is directed to consider the same and pass appropriate orders within a period of four (4) weeks from receipt thereafter.
Petition disposed off.
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