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Service Tax - Case Laws
Showing 1 to 20 of 71 Records
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2021 (2) TMI 1347
Maintainability of appeal - HELD THAT:- The appellant has made out a prima facie case for entertaining this appeal.
Accordingly, the Civil Miscellaneous Appeal is admitted to consider the following substantial questions of law:
1. Whether the cryptic final order dated 03.03.2020 passed by the Tribunal without considering any of the pleas raised by the appellant including the preliminary objections taken out by them in their written arguments supported by judicial pronouncements apart from traversing beyond the scope of the show cause notice contrary to the pronouncements of the Hon'ble Apex Court is maintainable in law?
2. Whether the Tribunal was right in overlooking the communication received from the revenue authorities accepting the classification of their impugned activities under the taxable "Information Technology Software Services" and accordingly asking the appellant to pay the tax under the said entry after amending their registration certificate and also closing the dispute thereafter on the appellant remitting the tax as informed to them so as to confirm the order of the 1st appellate authority sustaining the demand, without giving any set off to the amount already paid by them for the same period is proper and correct?
3. Whether the Tribunal was right in not considering the decision of the co-ordinate Benches of the Tribunal in similar matter holding the issue in favour of the appellant herein inspite of the said decision having been specifically brought to its notice?
List the appeal on 03.06.2021.
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2021 (2) TMI 1259
Rejection of application filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking rectification of the alleged mistake apparent from the records - HELD THAT:- The Petitioner had already filed an Application for rectification of alleged mistake under Section 74 of the Chapter V of the Finance Act 1994 on 13/07/2018. It is not in dispute that the Assessing officer has rejected the said application on 20/02/2019. On 08/04/2019, the Petitioner preferred an Appeal under Section 85 of the said Finance Act 1994 much prior to Notification issued by the Central Government on 01/09/2019 introducing the said Scheme.
It is not disputed by the Respondents that against an assessment Order, an assessee can file an application for rectification under Section 74 of the Finance Act 1994. The said application for rectification filed under Section 74 came to be rejected by the assessing officer. It is not in dispute that the said Order passed by the Assessing Officer refusing to allow application for rectification filed under Section 74 was appealable under Section 85 of the Finance Act 1994. The said appeal was admittedly pending as on 30/06/2019 - if the said application for rectification would have been allowed partly or fully by the assessing Officer, under Section 74 (7), the assessing officer was required to give effect and implement the said Order, if any, on the application for rectification. A perusal of the said Section 74 (7), indicates that where any such amendment has the effect of enhancing the (liability of the assessee) or reducing the refund already made, the (Central Excise Officer) shall make an order specifying the sum payable by the assessee and the provisions of said chapter shall apply accordingly.
It is clear beyond reasonable doubt that any Order allowing the said application for rectification partly or fully would modify the Order in original passed by the Assessing Officer in pursuance of show cause notice issued by the assessing Officer. Such Order of rectification has to be read with the Order in Original. The said Order is also appealable under Section 85 of Finance Act, 1994 - In this case the Petitioner had already filed the appeal against the Order passed by the Assessing Officer under Section 74 of the Finance Act, 1994 rejecting the application for rectification. There is no merit in the submission of the Mr. Mishra, the learned counsel for the Respondents that the declaration form filed by the Petitioner could only fall under “arrears category” within the meaning of Section 121 (c) on the ground that the Petitioner had not filed any appeal against the Order in original.
The view taken by the respondents is not only contrary to various principles of law laid down by this Court in catena of decisions referred to aforesaid but also contrary to the objects and intent of the Central Government in introducing the said scheme for the benefit of the assessee and to bring them out of litigation forever pending under pre-GST regime. The view taken by the respondents thus deserves to be quashed and set aside with the order of remand.
The impugned Order dated 06/03/2020 passed by the Designated Committee requiring the Petitioner herein to pay the amount of ₹ 13,18,433.20/- placing the declaration form submitted by the Petitioner under “arrears category” is quashed and set aside - declaration form SVLDRS filed by the Petitioner on 15/01/2020 is to be placed before the Designated Authority. The designated authority is directed to consider the said declaration under ‘litigation category’ and shall issue discharge Certificate within 30 days from the date of the Petitioner paying the amount as reflected in SVLDRS-1 - Petition allowed.
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2021 (2) TMI 1225
Levy of penalty - appropriation of amount paid by the petitioner during the course of investigation towards the tax liability - benefit of waiver from payment of Parenti under section 73 (3) of the Finance Act, 1994 - HELD THAT:- Though no counter has been filed, this writ petition is liable to be dismissed. The petitioner has been issued with the impugned show cause notice only. It is for the petitioner to file reply to the same and participate in the adjudication process under the Finance Act, 1994.
No comments made on the merits of the case - petition disposed off.
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2021 (2) TMI 1217
Applicability of the doctrine of mutuality - HELD THAT:- The High Court relying upon the decision of 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] proceeded to allow the special appeal without adjudicating, much less recording a clear finding on the factum of applicability of the doctrine of mutuality in the fact situation of the present case. To observe sobriety, it is noted that the impugned judgment does not stand the test of judicial scrutiny.
The appeal is restored to the file of the High Court, to be considered afresh on its own merits and in accordance with law - Appeal disposed off.
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2021 (2) TMI 1211
Rejection of declaration filed under the amnesty scheme- Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - settlement of Service tax dues - rejection of the declaration filed by the Petitioner on account of Petitioner’s eligibility relates to quantification of tax dues prior to the ‘relevant date’ - HELD THAT:- The Special Leave Petition under Article 136 of the Constitution of India need not be entertained - SLP Dismissed.
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2021 (2) TMI 1167
Maintainability of appeal - Appropriate forum - question of law or question of facts involved - HELD THAT:- The subject matter of this appeal has something to do with the classification of services. This appeal should have been filed before the Hon'ble the Supreme Court under Section 35L of the Act, 1944.
This tax appeal on the ground that the same is not maintainable before this High Court.
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2021 (2) TMI 1150
Levy of service tax - recovery of certain amounts from its supplier which in view of the Revenue are in the nature of liquidated damages for compensating the appellant against the poor quality of material supplied to the appellant by its supplier - Section 66(E)(e) of the Finance Act, 1994 - HELD THAT:- The facts are not in disputed that amount recovered by the appellant is towards the poor quality of goods purchased by them.
The appellant have taken the ground before the Adjudicating Authority as well as Commissioner (Appeals) that the amount which they have received is in the form of “liquidated damage” and not in the form of “consideration” towards any service for the reason that the said amount is for supply of lower quality of goods and thus the effect is only reduction in the transaction value of the goods. However, this vital point raised by the appellant has not been considered either by the Adjudicating Authority or by the first appellate authority. Both the authorities also have not dealt with the distinction between the ‘liquidated damage’ as claimed to have received by the appellant and the ‘consideration’, which department want to impose. Both the terms have been defined legally separately in the Indian Contract Act, 1872.
Time Limitation - HELD THAT:- The same has also not been considered on its true facts and the legal issue involved in the present case.
Since the issues have not been dealt in a proper manner by both the lower authorities, the matter needs to be reconsidered as a whole - Appeal allowed by way of remand.
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2021 (2) TMI 1122
Scope of two SCN - different subject matter in both SCN - Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS), 2019 - petitioner contends that since the contracts of the petitioner with CIPL were the subject matter of the first show cause notice, the second show cause notice with respect to “free of cost” supplies under the contract with CIPL and/or with respect to constitution of NOIDA does not constitute a different matter but is the same matter - HELD THAT:- Though it is also the contention of the counsel for the petitioner that in any case, qua “free of cost” supplies there is no taxation element as held in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] has been held to be a corporation and thus the said questions are no longer res integra but we are of the opinion that in the challenge at this stage, we are not required to go into the merits of the grounds urged in the impugned show cause notice.
The counsel for the respondents seeks time to show case law on, how the words ‘same matter’ or ‘different matter’ are to be interpreted in the context of the SVLDRS i.e. liberally or restrictively.
List on 15th March, 2021.
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2021 (2) TMI 1118
Seeking reconsideration of declaration of the petitioner filed under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - eligibility of the petitioner or maintainability of its declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit on the ground that the service tax dues of the petitioner for the related period was not quantified on or before 30th June, 2019 - HELD THAT:- The issue decided in the case of THOUGHT BLURB VERSUS UNION OF INDIA AND ORS. [2020 (10) TMI 1135 - BOMBAY HIGH COURT] where it was held that petitioner was eligible to file the application (declaration) as per the scheme under the category of enquiry or investigation or audit whose tax dues stood quantified on or before 30th June, 2019.
In the present case, Petitioner has stated that it received the email of the said letter dated 15.06.2019 on 29.06.2019 and the physical copy on 01.07.2019. Respondents have taken the stand that because the physical copy was received by the petitioner on 01.07.2019 the quantification would be construed to have been done on 01.07.2019 which was beyond the cut off date of 30.06.2019, thus rendering the petitioner ineligible. In our view, such a construction does not conform to the letter and spirit of the scheme as we have discussed above. The scheme talks about quantification of the tax dues and not communication thereof. The quantification having been done vide letter dated 15.06.2019, receipt of copy thereof whether email or physical becomes immaterial. It is the date of quantification which is relevant because in this case the quantification has been done by the authority. That apart, it was clarified by the Board that since 30.06.2019 was a public holiday being a Sunday, therefore, in terms of section 10(1) of the General Clauses Act, 1897 the relevant date should be considered as 01.07.2019 instead of 30.06.2019.
Allegation that the letter dated 15.06.2019 did not indicate complete quantification as per letter of the Anti Evasion Wing dated 20.11.2019 - HELD THAT:- In the present case, there is a clear demand made by the respondents upon the petitioner and there is no reason not to accept the said figure as the amount of service tax dues payable by the petitioner for the period under consideration.
Opportunity of personal hearing - HELD THAT:- The declarant had accepted the determination of tax dues by the designated committee and thus there was no question of providing any personal hearing because no such hearing would be required. In fact in Form SVLDRS No.2A, it is found that the same is a form pertaining to written submissions, waiver of personal hearing and adjournment under section 127 of the Finance (No.2) Act, 2019 read with Rule 6 of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules 2019. From a perusal of the said form, we find that the petitioner had clearly mentioned that it agreed with the estimate made in SVLDRS Form No.2. In such circumstances, the question of availing any personal hearing did not arise.
The rejection of the declaration of the petitioner was not justified - matter remanded back to the respondents (designated committee) to consider afresh the declaration of the petitioner dated 13.11.2019 as a valid declaration in terms of the scheme under the category of investigation, inquiry and audit and thereafter grant the consequential relief(s) to the petitioner. Petitioner shall be afforded an opportunity of hearing where-after a speaking order shall be passed - petition allowed by way of remand.
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2021 (2) TMI 1099
Levy of Service Tax - supply of tangible goods - transfer of right to use or not - petitioner was providing material handling object, namely, cranes to Bharath Heavy Electricals Limited (BHEL), the sixth respondent herein, on “transfer of right to use” basis - Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The petitioner has rendered service. It was supplying tangible goods, viz. 10T Mobile Cranes numbering 11/12 on daily rental basis. These material handling equipments were hired by the sixth respondent BHEL as per the agreement dated 07.12.2011. The terms of the agreement which has been extracted above indicate that the petitioner has not transferred the Mobile Cranes to the sixth respondent BHEL. On the other hand, the petitioner has provided its driver for operating the Cranes. It was under the supervision of the sixth respondent BHEL. The agreement further states that crew of the petitioner who worked during the first shift shall not be engaged in the second shift - Under the agreement, the petitioner was merely required to supply required number of cranes for the purpose of material handling and for the purpose of loading/unloading. The facts that the lifts will be operated by the drivers of the petitioner and that the crane will not be parked inside the 6th respondent BHEL premises after the stipulated working hours make its clear that it is the petitioner who was in effective control of these material handle equipments / cranes. Further, the agreement also indicates that trip register should be maintained by the petitioner's driver and that in case the loss of original trip register, the sixth respondent BHEL should not entertain the claim of the petitioner.
In RASHTRIYA ISPAT NIGAM LTD. VERSUS COMMERCIAL TAX OFFICER, COMPANY CIRCLE, VISAKHAPATNAM [1989 (12) TMI 325 - ANDHRA PRADESH HIGH COURT], the the Andra Pradesh High Court came to a conclusion that the transfer of right to use goods necessarily involves delivery of possession by the transferor to the transferee and transfer to effective control.
There is neither transfer of effective control nor transfer of possession over the material handling equipments / cranes in favour of the sixth respondent BHEL under the agreement - Petition allowed - decided in favor of petitioner.
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2021 (2) TMI 1093
Classification of services - Manpower Recruitment or Supply Agency Service or not - period 16.6.2005 to 2007 – 08 - Department was of the view that for the period prior to 2008, as per the agreements entered by the appellant with various clients, the appellants have rendered MRSA services to the clients - appellant claims that the services are nothing but Information Technology Software Services for which they have been paying service tax after 2008 and that these activities will not fall under the definition of MRSA - suppression of facts or not - extended period of limitation - HELD THAT:- it can be seen that the control and supervision of the staff / qualified personnel supplied to the premises of the client (ABN AMRO Bank) is with the appellant (contractor) only. Though certain personnel are supplied to the premises of the client for carrying out work / job of the client, it cannot be said that the activity would fall under MRSA.
The discussion in para 12.3 of the order in original indicates that mere supply staff / qualified personnel to premises of client is construed as MRSA by the lower authority which is erroneous. Even if parties agree that consideration will be based on the number of persons employed, what has to be looked into is whether the agreement is to execute the work for the client or merely supply the work force. What has to be examined is the core activity for which the agreement is entered between parties. The clients are not in IT related fields. They need services in the nature of annual maintenance of systems, testing, developing of software etc. The disputed transactions as per agreement do not reflect ingredients required for MRSA.
There is no iota of evidence to show that the appellants were rendering MRSA service during the disputed period. On merits, the issue is settled by the decision in the case of Cognizant Tech Solutions [2010 (3) TMI 328 - CESTAT, CHENNAI] where it was held that The assistance in recruitment and imparting of specialized training for the recruited personnel cannot be held against the appellants’ claim that they have not supplied the manpower but have merely recruited and retained the same for providing specialized services to Pfizer utilizing such manpower - The demand under MRSA cannot sustain and requires to be set aside.
The Hon’ble High Court has remanded the matter to reconsider the issue on limitation also. The entire demand is raised invoking the extended period. In Coromandel Infotech India Ltd. [2019 (1) TMI 323 - CESTAT CHENNAI], the Tribunal had occasion to consider the issue of limitation when there were two conflicting views on the very same issue. Moreover, in the case before us, apart from bald allegation that the appellant has suppressed facts with intention to evade payment of service tax, there is no positive act brought out before us to establish the allegation of suppression.
It is evident that the appellant was all along responding and cooperating with the department. The show cause notice is issued only on 23.4.2010. There are no evidence to support the allegation that the appellant has suppressed facts with intention to evade payment of service - the appellant succeeds on limitation also.
Appeal allowed - decided in favor of appellant.
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2021 (2) TMI 1078
Renting of immovable property service - Failure to file periodic ST-3 returns - service pertaining to commercial development of vacant rail land by construction of multifunctional complexes - HELD THAT:- The non-registration of appellant under service tax has been heavily objected. However, it is acknowledged that Development Agreement with respect to Sarai Rohilla Railway Station has got terminated and that the said termination will have an effect upon quantum of liability. Accordingly, the request of learned Counsel for appellant for remanding the matter for fresh decision has been acknowledged.
The matter remanded back to the respective adjudicating authority and order accordingly with the direction to the Adjudicating Authority to re-adjudicate the issue after taking into consideration the termination of the said Development Agreement and subsequent proceedings - Appeal allowed by way of remand.
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2021 (2) TMI 1036
Reopening of matter - case closed for the purpose of statistics holding that the both sides are at liberty to file application before the Tribunal to reopen the matter as and when the case is disposed by the Hon'ble High Court or in case of any change of circumstance - applicability of provisions of Section 35C of the Central Excise Act, 1944 - HELD THAT:- The writ petitions were heard by the learned Single Bench and by order dated 09.03.2012, this Court directed that the personal hearing of the respondent-assessee scheduled to be held on 09.03.2012, shall not go on until further orders. When this matter was brought to the notice of the Tribunal, the Tribunal has disposed of the appeal by the impugned order with liberty to the parties to file an application to reopen the matter - the correct approach would be to keep the appeal pending before the Tribunal, because the interim order is only to the effect that the personal hearing should not go on.
The appeal may be kept pending before the Tribunal and should not be disposed of till the writ petitions are disposed of in one way or another or if any interim orders are passed in the writ petitions - The substantial question of law is answered in favour of the Department and the appeal is restored to the file of the Tribunal awaiting the orders passed in the writ petitions, either interim or final orders.
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2021 (2) TMI 1023
Levy of service tax - Export Pass fee and Import fee - Storage License Renewal fee - Excise Staff Salary and Overtime charges - Permit fee paid to the State Excise department - Reverse charge Mechanism - Section 117 of the Finance Act, 2019 - HELD THAT:- The learned Commissioner has wrongly considered the fee paid by the appellant to the State Excise department and various other Government departments/agencies as having an element of a quid pro quo in it and hence services provided by the State Excise department. We also note that the fee charged for grant of license is not a consideration for service, but a price charged for “exclusive privilege” parted by the State, the export fee does not have an element of service and therefore not a service and accordingly not subject to levy of service tax. The State Legislature is empowered to make laws in terms of Article 246 read with the Seventh Schedule of the Constitution of India. The State Legislature is empowered to make laws in respect of Entries 8 and 66 of the State List which cover production, manufacture, possession, transport, purchase and sale of intoxicating liquors and fees in respect of any of the matters in this List excluding fees taken in any court. We further note that to deal with intoxicating liquor is part of the State responsibility and it is in exercise of these privileges, State has exclusive rights to manufacture, possession, consumption, transport etc. of liquor within its territory and to grant licenses and permits to ensure compliance - in August, 2019, the Finance Act, 2019 was enacted amending Section 66B of the Act, to the effect that service tax was not leviable on services provided by the State Government by way of grant of liquor licenses against consideration in the form of license fee or application fee “by whatever name called”, during 01.04.2016 to 30.06.2017 along with this amendment the dispute regarding the leviability of service tax on fee paid to State Government in relation to alcoholic liquor for human consumption has come to an end and it is clear that service tax is not leviable on the said fees from April 2016 to June 2017. Specific inclusion of word “by whatever name called”, the Legislature made it abundantly clear that any fee paid under the purview of State Excise legislation would not be leviable to service tax. Further, it is pertinent to note that the word “License Fee” is defined by Oxford Dictionary to mean “a fee paid to an organization for permission to own, use or do something”.
Levy of service tax on Storage License fee - HELD THAT:- The learned Commissioner has observed that the said license is issued to the appellant by the State Excise department for the specific purpose of storing CO2. The appellant has paid the fee against the renewal of license for storing CO2 which fact is admitted by Ashish Jain, Manager of appellant in his statement dated 05.02.2018. The learned Commissioner has rightly upheld the demand of service tax on Storage License Renewal fee which cannot be considered as fee paid towards grant of liquor license - the demand of service tax on Storage License fee for CO2 along with interest is upheld.
Liability on license fee and other application fee paid to the State authorities - HELD THAT:- The issue with respect to tax liability on license fee and other application fee paid to the State authorities continued to be an issue under GST as well and the GST Council in its 26th meeting on 10.03.2018 recommended that GST was not leviable on license fee and application fee, “by whatever name called”, payable for alcoholic liquor for human consumption and that this would apply mutatis mutandis to the demand raised by the Service Tax/Excise authorities on license fee for alcoholic liquor for human consumption in the pre-GST era i.e. for the period from April 2016 to 30th June 2017.
The appellant is not liable to pay service tax on Export Pass fee, Import Pass fee, Permit fee, Excise Staff Salary and overtime allowances/charges - the service tax demand on Storage License fee for CO2 which the appellant is liable to pay along with interest is confirmed - appellants are not liable to pay penalties in view of the fact that demand itself is not sustainable - appeal allowed in part.
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2021 (2) TMI 1022
Manpower Recruitment or Supply Agency Service - seconded employees - demand on the ground that the appellants have not paid service tax on receipt of Manpower Supply Service and had not complied with the conditions prescribed in Notification No. 12/2013-ST dated 01.07.2013 - HELD THAT:- In order to classify any service under the manpower recruitment or supply agency service the following conditions need to be satisfied:
i. The agency must be any person
ii. It must be engaged in providing a specified service
iii. The specified service is recruitment or supply of manpower
iv. The service can be provided “temporarily or otherwise’
v. The service may be provided directly or indirectly
vi. The service may be provided in any manner
vii. The service must be provided to any other person.
An identical issue was decided by this Tribunal in the case of Target Corporation India Ltd. [2021 (1) TMI 712 - CESTAT BANGALORE] where it was held that in the case of seconded employees, service tax is not leviable under the category of manpower recruitment or supply of manpower service.
Appeal allowed - decided in favor of appellant.
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2021 (2) TMI 987
Liability of service tax - reverse charge mechanism - case of applicants is that the writ-applicant is a cooperative society and not association of the individuals. Therefore, the liability to pay the service tax would be of the recipient of the services and that would be the ONGC - HELD THAT:- By amendment, which has been permitted to be carried out, it is brought to the notice of this Court that the service recipient being ONGC Ltd. had already deposited the requisite service tax with the concerned authority and the payments were then made to the writ-applicant society.
This writ-application is not entertained as the impugned order is appealable under Section 107 of the Act. However, we would like to seek the responsibility of the respondent no.2 as regards the case put up by the writ-applicant that the service recipient being ONGC Ltd. and ONGC having deposited the requisite service tax, the liability could be fasten upon the writ-applicant once again towards the service tax.
Let Notice be issued to the respondents returnable on 8th March 2021.
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2021 (2) TMI 982
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - short payment of service tax - declaration was rejected by respondent No.4 on the ground of ineligibility with the remarks that the amount of service tax liability was not quantified finally before 30.06.2019 and that investigation was going on - HELD THAT:- In response to summons dated 10.04.2019, petitioner had submitted letter dated 04.06.2019 furnishing details of royalty paid to the government and service tax / GST paid on the said royalty payment, the details of which have been mentioned at page 43 of the paper-book which comes to the total figure of ₹ 47,37,377.00. However, at page 43 we find a note that the said service tax liability was not acceptable to the petitioner. From these two documents, no acknowledgment or admission of service tax liability by the petitioner is discernible. Also, the petitioner has stated about the details of royalty paid to the government and service tax / GST paid on the said royalty payment - Though learned counsel for the petitioner would like to submit that it was a clerical and inadvertent mistake as instead of the word 'paid' it should have been 'payable', we do not find any such indication either in the writ petition or in any of the documents annexed to the writ petition. The only time such a statement was made was when the petitioner wrote to the designated committee on 10.01.2020 explaining that ₹ 47,37,377.00 was the service tax liability for the period from 2016-17 and April, 2017 to June, 2017. But there is no pleading to that effect.
There are no acknowledgment or admission by the petitioner of its service tax liability for the period under investigation prior to 30.06.2019 which is the cutoff date under the scheme - decision of respondent No.4 dated 04.03.2020 to reject the declaration of the petitioner dated 31.12.2019 on the ground that service tax liability of the petitioner was not quantified prior to 30.06.2019 cannot be faulted - petition dismissed.
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2021 (2) TMI 980
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - eligibility of the petitioners or maintainability of the declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit on the ground that service tax dues of the petitioners for the related period was not quantified on or before 30th June, 2019 - HELD THAT:- In Thought Blurb Vs. Union of India [2020 (10) TMI 1135 - BOMBAY HIGH COURT], this court faced with a similar issue referred to provisions of the Finance (No.2) Act, 2019 and to the circular dated 27th August, 2019 of the Central Board of Indirect Taxes and Customs, where it was held that there are no hesitation to hold that petitioner was eligible to file the application (declaration) as per the scheme under the category of enquiry or investigation or audit whose tax dues stood quantified on or before 30th June, 2019.
Thus, it is evident that all that would be required for being eligible under the above category is a written communication which will mean a written communication of the amount of duty payable including a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit. For eligibility under the scheme, the quantification need not be on completion of investigation by issuing show-cause notice or the amount that may be determined upon adjudication.
Though petitioners had made a mistake in not disclosing this figure of ₹ 6,13,91,021.00 in the first declaration, the situation was rectified by filing the second declaration before rejection of the first declaration disclosing the aforesaid figure. We find that the second declaration was filed on 10.01.2020 whereas the first declaration was rejected on 12.02.2020 - the quantum of service tax liability of the petitioner was the amount of service tax liability of the petitioners quantified in terms of the scheme on admission of the petitioners prior to the cut off date of 30.06.2019 i.e. ₹ 6 crores approximately which roughly corresponds to the declared figure of ₹ 6,13,91,021.00 in the second declaration. In such circumstances, rejection of the second declaration of the petitioners on the ground of ineligibility is not justified.
The matter remanded back to respondent No.4 to consider the declaration of the petitioners dated 10.01.2020 afresh as a valid declaration in terms of the scheme under the category of investigation, enquiry and audit and thereafter grant the consequential relief(s) to the petitioners - petition allowed by way of remand.
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2021 (2) TMI 942
Invocation of Extended period of limitation by third SCN - Imposition of penalty on Directors - Cleaning Activity - services to government hospitals, educational institutes and non-commercial organizations, though a sizable portion of the revenue was generated from Sanjay Gandhi Post Graduate Medical Institute, Lucknow [SGPGMI] - HELD THAT:- The Department was aware of the facts when the first show cause notice was issued and, therefore, the extended period of limitation could not have been invoked in the third show cause notice.
The Additional Director General has ignored the order passed by the Tribunal on November 20, 2018 on the first and the second show cause notices for the reason that the said notices or the order of the Tribunal had not been submitted by the Appellant. The Appellant in reply to the show cause notice had made a specific reference to the two show cause notices by giving the number and the dates and the order passed by the Tribunal. Even if it is assumed that the Appellant had not placed the two show cause notices and the order passed by the Tribunal, nothing prevented the Additional Director General from perusing the records of the Department for examining the two show cause notices and the order passed by the Tribunal. The Additional Director General could have even asked the Appellant to produce the two show cause notices and the order passed by the Tribunal. The important documents referred to by the Appellant that went to the root of the matter could not have been ignored in this manner.
What also needs to be noted is that the amount charged for the exempted service that were provided by the Appellant was being repeatedly shown by the Appellant in the ST-3 returns filed in 2014 and 2015, and it is not a case where the Appellant had suppressed any information from the Department regarding the amount it had charged for the exempted services. It cannot, therefore, be urged that the Appellant had suppressed information or facts from the Department - What is further important to note is that on July 05, 2016, the Department also issued a notice to the Appellant for conducting an audit for the period 2012-13 to 2015-16. The Appellant was required to furnish all the relevant documents, including documents relating to details of the exempted services. The audit report does not mention that the Appellant had provided any service which was not exempted under the various Notifications and the audit report was also approved by the Deputy Commissioner (Audit).
A Division Bench of the Tribunal in TRANS ENGINEERS INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2015 (9) TMI 787 - CESTAT MUMBAI] also examined whether the extended period of limitation could have been invoked when the audit report did not raise any query in respect of the payment of the service tax as alleged in the show cause notice where it was held that Revenue authority cannot invoke the extended period of limitation, when the records of the assessee were audited by the officers once but did not find any short payment from records. The 2nd audit party, doing the audit of same period or over lapping period, cannot allege that appellant has miss-stated (sic) or suppressed the facts from the departments.
The Additional Director General has also observed that the Appellant had collected the service tax from most of the service recipients, but had mentioned in the ST-3 return that they were exempted services. This finding is also not based on the basis of records as nothing has been brought on the record to indicate that the Appellant had actually collected service tax for the exempted services. Merely because the Appellant collected an amount inclusive of taxes does not mean that service tax was included because there are many other taxes that are required to be paid - thus, it is not possible to sustain the demand of service tax raised against the Appellant as the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act could not have been invoked.
In this view of the matter, penalty could also not have been imposed upon the two Directors of the Appellant.
Appeal allowed - decided in favor of appellant.
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2021 (2) TMI 893
Site Formation and Clearance Excavation and Earth Moving and Demolition Services - benefit of the mega Exemption Notification No. 25/2012-ST dated 20 June, 2012 - availability of exemption under Serial Number 13(a) and 14(a) could not be taken up before Commissioner due to lack of proper representation by the Advocate - HELD THAT:- From the description of the contracts in the Show Cause Notice as well as order in original, it is found that it is quite likely that many of them may relate to roads, canals and railways. If that is the case then the Appellant might be entitled to benefits under Serial Number 12, 13 and 14 of the Service Tax Notification in respect of services provided by them subject to fulfillment of the other necessary conditions. The learned Counsel for Appellant has pointed out that the matter was not represented properly before the lower authority by Advocate. These exemption granted in entries at Serial Number 12, 13 and 14 of Notification No. 20/2012-ST dated 20 June, 2012 could not be examined by the original adjudicating authority as the Advocate failed to point them out.
Provision of service directly to the Government - Reliance on the decision of Tribunal in case of M/S SARITHA INFRA & GEO STRUCTURES VERSUS PRINCIPAL COMMISSIONER OF CENTRAL TAX VISAKHAPATNAM CENTRAL GST COMMISSIONERATE [2019 (5) TMI 75 - CESTAT HYDERABAD] - HELD THAT:- The said decision was not before the original adjudicating authority. The matter also needs to be re-examined in light of the decision cited by the Appellant.
The matter needs to be re-examined and, therefore, in the interest of justice, the impugned order is set aside and matter is remanded to the Commissioner for fresh adjudication keeping all the issues open - Appeal allowed by way of remand.
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