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Service Tax - Case Laws
Showing 61 to 76 of 76 Records
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2021 (7) TMI 256
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Time limitation - application has been filed in 2019 and Form 3 in this case is dated 03.01.2020 - HELD THAT:- The petitioner has filed a representation, which contains two dates, 30.03.2021 and 05.04.2021, before the Chairman, Central Board of Indirect Taxes, for which there is no acknowledgement, even for dispatching the same, praying for a permission to remit the tax under the Scheme - That apart, the petitioner has instituted this Writ Petition only on 16.06.2021, nearly a year after the last date stipulated by the Board for payment of tax. In such a situation, this Court is not in a position to intervene in this matter and it is left to the petitioner to pursue its representation, if at all filed, before the Board.
Petition dismissed.
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2021 (7) TMI 251
Taxability - convenience fee - fee charged on its customers for online booking of movie tickets - online information and database access retrieval system [OIDAR] services or not - period 01.04.2007 to 31.12.2011 - extended period of limitation - demand of interest and penalty as well.
Invocation of extended period of limitation - suppression of facts or not - whether wilful suppression of facts is necessary or just suppression (unknowingly) is also sufficient for invocation of extended time? - HELD THAT:- It is clear from the facts that as far back as on 27.07.2009 the Department was aware that the appellant had been collecting convenience fees from customers and by 11.08.2010 the Department was also aware of the quantum of convenience fees collected, which amount has also been mentioned in the show cause notice dated 14.06.2012. It is, therefore, more than apparent that the Department was aware of the collection of convenience fees by the appellant much before one year from the date of issue of the first show cause notice dated 14.06.2012. It cannot, therefore, be said that the appellant had suppressed facts relating to collection of convenience fee from the Department and, therefore, the confirmation of demand by the Commissioner for the period 01.04.2007 to 31.03.2011 is clearly not warranted.
The Supreme Court and the Delhi High Court have held that suppression of facts has to be “wilful’ and there should also be an intent to evade payment of service tax - It would also be useful to refer to a decision of the Tribunal in Shiv-Vani Oil & Gas Exploration Services Ltd.[2016 (10) TMI 878 - CESTAT NEW DELHI], wherein the Tribunal after making reference to the decision of the Supreme Court in Cosmic Dye Chemical vs. CCE, Bombay [1994 (9) TMI 86 - SUPREME COURT], observed that there should be an intent to evade payment of service tax if the extended period of limitation has to be invoked.
It is, therefore, clear that even when an assessee has suppressed facts, the extended period of limitation can be invoked only when “suppression’ is shown to be wilful with intent to evade the payment of service tax - even suppression of facts has to be wilful and in any case, suppression has also to be with an intent to evade the payment of service tax. There is no finding by the Commissioner as to whether suppression of facts was wilful and in the context of intent, the Commissioner held that there is no necessity that suppression of facts has to be with an intent to evade the payment of service tax.
The confirmation of demand of service tax of ₹ 1.27 crores on convenience fees for the period commencing 01.04.2007 to 31.03.2011 is beyond the prescribed period of one year contemplated under section 73(1) of the Finance Act and, therefore, this demand deserves to be set aside.
Whether the convenience fees that is charged by the appellant from each user over and above the prescribed value of the movie ticket can be subjected to service tax under OIDAR? - HELD THAT:- A conjoint reading of the clauses of the Terms & Conditions of the contract would indicate that the purpose for charging convenience fee is to receive a consideration for offering a facility of online booking and in the facts of the present case would relate to online booking of tickets. It needs to be noted that the purpose of the transaction is to book and procure a ticket online by a user, though the website may provide for various other information like the current movie being exhibited, the upcoming movies and the timing of the movies. These information are even otherwise available through newspaper advertisements or other advertisements and no charge is leviable for the same - It is clear that the pith and substance and the dominant intention of the arrangement is not to access/retrieve data/information but it is an arrangement by which the facility of online booking is made available to users.
There is no manner of doubt that the essential characteristic of the arrangement under consideration in these appeals is availing the facility of online booking of ticket and not accessing/retrieving any data/information. Service tax under the category of OIDAR, therefore, cannot be levied upon a user merely because he receives a code for getting a printout of the ticket from the cinema hall.
The inevitable conclusion that convenience fee is not charged by the appellant for any access/retrieval of information or data base. Service tax under OIDAR cannot, therefore, be levied upon the appellant for the period prior to 01.07.2012. The appellant has stated that it started discharging service tax on convenience fees under the negative list regime after July 1, 2012 under the category of “other taxable services” - the confirmation of demand of service tax of ₹ 1.27 crores for the period 01.04.2007 to 31.03.2011 out of the total demand of ₹ 2,02,31,146/- covered under the two show cause notices dated 14.06.2012 and 15.03.2014 cannot also be sustained for the reason that it is for a period beyond the prescribed period of one year contemplated under section 73(1) of the Finance Act and the extended period of limitation could not have been invoked.
Demand of interest and penalty - HELD THAT:- As the confirmation of demand under the two notices cannot be sustained, the imposition of penalty and interest under sections 78 and 75 of the Finance Act cannot also be sustained.
The impugned order confirming the demand of service tax under the two show cause notices dated 14.06.2012 and 15.03.3013 is liable to be set aside and is set aside - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 230
Interest on services tax - an adjudication was conducted and final order was passed on 17.09.2014, by the Settlement Commission seeking interest - error apparent on the face of record or not - 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 partial immunity from penalty to the applicant and further, granted immunity from prosecution and the order was passed.
The interest is chargeable based on certain admitted facts and circumstances placed before the Settlement Commission. If at all there is any error apparent in respect of such findings with reference to the original records, the petitioner is at liberty to approach the Settlement Commission for clarification or for rectification of any such error apparent regarding the facts admitted or pleaded. However, such an adjudication cannot be done by the High Court in a writ proceedings, which require examination of original records and the admission statements made by the parties before the Settlement Commission with reference to the application filed under Section 32E of the 1944 Act.
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 - Petition disposed off.
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2021 (7) TMI 222
Sabka Vishwas (Dispute Resolution) Scheme, 2019 - Recovery of erroneous double service tax liability - Works Contract Service - deposit of service tax was ignored - HELD THAT:- The position appears to be that the payment of ₹ 32,12,000/- during the proceedings after show cause notice from time to time has not been denied at all nor is there any allegation that the challans are non-existent or forged. It is claimed by the petitioner that challans in respect of payment aggregating to ₹ 32,12,000/- were produced before the adjudicating authority and the same had also been communicated to the designated authority and further that the department is wary of that and the office of respondent No. 3 had submitted a verification report dated 20.02.2020 stating the factual position as per challans submitted by the petitioner, the total service tax paid was ₹ 2,73,00,045/-.
It is not a case at all that the payment is denied or the challans of payment are not available. There is no explanation with regard to the appropriation or receipt of amounts under challans. In such a case, while there is a report on record stating that going by the challans, the total amount paid by the petitioner towards service tax was ₹ 2,73,00,045/- comprising the amount of ₹ 32,12,000/-, the matter will have to be properly verified at the end of the respondents which would be necessary and pertinent. The authorities are not expected to go-about hyper-technically and/or unmindful of claims of assessees based on material while determining the estimated amount of payment in the matter.
Respondent No. 2 is directed to re-consider the petitioner’s SVLDRS1 and after verifying the claim of ₹ 32,12,000/- having been paid towards the service tax referred to in the show cause notice issue revised SVLDRS-3 - petition allowed.
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2021 (7) TMI 216
Taxability - Banking and other financial services - services rendered by ICICI Econet Internet and Technology Fund floated by the Settlor - trust is a legal entity or not - whether obtaining registration under any statute entails the trust to a Tax liability - Mutuality of Interest between Trust and Members - service provider-receiver relationship - tax liability on Carry Interest and performance fee - time limitation - computation errors - penalty - Revenue Neutrality - VCF established in the form of a trust - amorphous entity or not - doctrine of mutuality - VCFs equal to Clubs or not - Validity of the value taken for the purposes of working out service tax demand - Inclusion of Carry Interest.
Mutuality of Interest - Does the doctrine of mutuality of interest exist between the trust and the contributors/beneficiaries - HELD THAT:- The OIO contending the claim of the appellants that the Fund is neither a corporate entity nor does it have a personality distinct from Contributors/ Subscribers/ Investors, records that the arguments of the appellants is not acceptable as per the facts of the case which indicate that the main object of the assess is capital appreciation through the investment of contributors/ Subscribers/ Investors in the schemes devised by the appellants to gain profits/income; the motive of the fund is purely commercial; the Fund has independent identity and distinct personality of its own which is evident from the fact that the Fund is established as a Trust by ICICI Ltd. and is registered with SEBI; the Fund made investment in various companies; only a legal obligation with respect of ownership of property rests with the Fund is not true as the appellant is involved in the activity of capital invested by Contributors/ Subscribers/ Investors; the Fund also collects KYC Forms from the Contributors; therefore the Fund acts as a commercial concern.
A Trust are essentially mutual funds engaged in Portfolio management etc. It could be seen that though these mutual funds are named Trusts, the essential function of the Trust was of commercial concerns that is maximizing the profit.
Similarly, it is mentioned clearly in various places that the Trust Fund shall be managed by the Trust and the object of the Trust is to carry on the activity of a Venture Capital Fund. It is interesting to notice that to enable the funds, to distribute the dividends and other amounts payable on or in respect of Units, a mechanism in the form of Private Placement Memorandum and/or Scheme Document are created. Thus, the profit motive of the Trust is evident. All these Trusts have registered themselves under VCF Regulations, 1996 issued under SEBI Act, 1992 - Taxation Law being a specific legislation just as the SEBI Act, 1992 should prevail over the general Trust Act and the definition given thereof.
The impugned trusts have violated the principles of mutuality by concerning themselves in commercial activities and by using the discretionary powers to benefit a certain class of investors or nominees or employees or subsidiaries. They can no longer be treated as trusts for the purposes of taxation statutes at least - the learned special counsel has rightly submitted that VCFs bear no comparison to members of club, which, by its very incorporation, is a grouping of individuals who have chosen to be members of a particular institution or club for fulfilment of certain human needs social, sporting, recreational etc that cannot be fulfilled except in such oragnised collectives.
Whether the appellants Rendered Taxable Services? - HELD THAT:- The argument that the banks need not pay service tax as the entities where they are further investing their monies are paying service tax. In a typical commercial activity various entity in the chain of activity needs to pay service tax and the subsequent entity may however, avail the credit of tax paid by the preceding entity. As long as the Trusts are performing the taxable services, they are liable to pay service tax. It has been demonstrated above by the learned Special Counsel for the Department and also found by us that the funds are managing the money invested by Subscribers/ Contributors/ Investors - the Trusts are not amorphous entities and the mutuality of interest is no longer applicable in the instant case; Funds are rendering the service of Portfolio Management or Asset Management under BOFS to the Subscribers/ Contributors/ Investors and the consideration is in the form of withholding the dividends/ profits distributable Subscribers/ Contributors/ Investors.
The Appellants have relied on Circulars No. 94/5/2007- Service Tax dated 15.05.2007 and Circular No. 96/7/2007-ST dated 23.08.2007 which is claimed to have clarified that the entry load and exit load charged by mutual fund being for management of asset or not liable to service tax - These are huge amounts retained and distributed to the AMCs or their nominees subject to achieving certain levels of performance thus it is a variable expenditure and cannot be equated to entry or exit load. Moreover, it is found that the appellant’s Trusts are managing Venture Capital Fund and not the mutual funds therefore the Circular is not applicable.
Applicability of Board’s Circular No. 86/04/06 - commercial concern or not - HELD THAT:- In the case at hand, it is seen that the totality of the activities and objective of the assessee is to effect capital appreciation of the investments of the consumers/ subscribers/ investors who are mentioned as customers in terms of their policies. Further, schemes are devised to generate income/ profit/ gains to the benefit of the consumer/ subscribers/ investors. Therefore, the said Circular is not applicable in the instant case.
Quantification of Demand - HELD THAT:- The Trusts are floated for drawing Contributors/ Subscribers/ Investors and to facilitate such persons to earn profits or gains out of the acquisition, holding and subsequent disposal of assets by the Trust/ Fund. The principal liability and responsibility of managing the Trust/ Fund rests with the appellants. Any amount retained out of income distributable to subscribers is nothing but charge or fee for the services rendered - It is agreed that CI is paid subject to realizations generated by exiting portfolio investments and credited to the class B or C (special Units holders) only when the net realization recognized by selling and exiting portfolio investments exceeds the sum total of the capital committed and the appreciation gained as per the pre-agreed preferred rate of return.
Levy of service tax - performance fee - carried interest and other expenses - HELD THAT:- The fact that the AMC, Settlors and Trustees are all ICICI Group concerns would further give credence to the inference. It is also seen the roles of different companies are rotated. One company is AMC in one Trust and a settlor in other funds - service tax has been rightly demanded on the amounts shown as performance fee, carried interest and other expenses.
Loss of sale of investment - Accrued interest considered doubtful - Loss on revaluation of assets - HELD THAT:- The bench cannot decide over such calculations. It will be in the fitness of the things to remand the matter to the adjudicating authority to verify the veracity of the claims.
Time Limitation - HELD THAT:- This is a matter of interpretation and all the information being in public domain, suppression of any material fact with intent to evade payment of duty cannot be alleged - It is not the case of the appellants that the material information available in the form of various contracts/ agreements and balance sheets/ ledgers have been submitted to the Department suo moto by the appellants. It is only after investigation has been initiated, the necessary documents were submitted. Thus, the information available in the public domain is of no avail - the Department was in its right to invoke the extended period for the issue of SCN.
Penalties - HELD THAT:- The appellants have not obtained registration; have not paid applicable service tax and have not filed due returns. Therefore, the penalty under Section 77 is imposable. It is found that extended period is invokable; material facts have been deliberately suppressed by the appellants before the jurisdictional service tax authorities. Therefore, the imposition of penalty under Section 78 of the Finance Act, 1994 is justified.
Revenue Neutrality - HELD THAT:- All the SCNs and annexures mention carried Interest to be includible in the Gross Consideration for the demand of duty. Therefore, we find that the OIO has not traversed beyond the SCN. Learned Counsel for the appellants also raised an issue that this is a standalone Show Cause Notice issued to the appellants alone, though there are many similar funds floated my others during the relevant time.
All the appeals are disposed of, by way of remand to the adjudicating authority, subject to the following conditions:
(i). Penalties imposed under Section 76 of Finance Act, 1994 are dropped.
(ii). the adjudicating authority shall verify the following claims of the appellants, with documentary proof that may be submitted by the appellants, and give due allowance to the same, if found otherwise in order as per law, while computing the duty liability.
(a). the claim that the amounts on account of ‘Loss of sale of investment’, "Accrued interest considered doubtful", "Loss on revaluation of assets", etc, are not actual expenses but are only accounting adjustments; and allow deduction if found in order.
(b) claim of the appellants on the admissibility of the CENVAT (c)claims of the appellants on the cum duty benefit.
(iii). The appellants shall submit necessary documentary proof with reference to the above claims within 4 weeks of the receipt of this order and the adjudicating authority shall complete the exercise within further 12 weeks of receipt of the documents from the appellants.
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2021 (7) TMI 195
Levy of Service Tax - security agency service or not - Home Guards department - scope of the term ‘person’ - It is the case of the appellant that the term ‘person’ does not include the Government or Governmental entities and, therefore, they are not covered by the definition of security agency - HELD THAT:- The term ‘person’ appearing in the definition must be construed to be a natural person and by no stretch of imagination will include the State or its officers or the posts created under a statute as held by the Constitution Bench of the Hon’ble Supreme Court in the case of STATE OF WB. PLAINTIFF VERSUS UOI. [1962 (12) TMI 64 - SUPREME COURT].
Since State cannot be a person, it cannot be a “security agency”. Therefore, no service tax under the head security agency service can be charged on the amounts collected by the Police or Home Guards or any officers of the Government for providing security.
The appellant is not liable to pay service tax - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 164
CENVAT Credit - input services - sub-contract of assembling / installation services - post-manufacturing activity or not - HELD THAT:- It is seen from the Statement of Demand as well as the earlier show cause notices referred in para-2 of the Statement of Demand that the main allegation raised against the appellant is that the credit is not eligible for the reason that the assembling / installation activity sub-contracted by them is a post-manufacturing activity.
When there is no allegation against the appellant, mere findings recorded in the order is of no consequence to deny the credit.
The credit has been wrongly disallowed - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 160
Revised refund claim - barred by time limitation or not - refund pertains to the period from 01.04.2016 to 22.08.2016 - HELD THAT:- Admittedly, the denial of refund by the First Appellate Authority pertains to the period from 01.04.2016 to 22.08.2016 and it is the case of the Revenue that the refund claim for this period was clearly made after a lapse of ONE year and hence hit by limitation in terms of paragraph 3(g) of the N/N. 41/2012-ST dated 29.06.2012.
This Bench of the Tribunal, in the case of M/s. Ashok Granites Ltd. v. Commissioner of Central Excise & Service Tax, Salem [2016 (7) TMI 1078 - CESTAT CHENNAI], under almost similar facts, has held that The imposition of period of limitation, without statutory amendment, through a notification, therefore, cannot prevail.
The above view clearly supports the case of the assessee rather than supporting the view of the revenue - denial of refund on the ground of time-limit is not in order and therefore, the impugned order is set aside - decided in favor of assessee.
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2021 (7) TMI 125
Settlement under SVLDR scheme was opted - date of payment has been extended - HELD THAT:- The petitioner had tendered payment on 30/06/2020 and the amount accordingly had been debited from the account of the petitioner, however, the same came to be recredited in its account. The efforts of the petitioner to pay and have its acknowledgment have been in vain and thus, the petitioner is before this court.
It appears that there is no dispute on aforesaid facts and particularly on the tender of payment being made on 30/06/2020. For no fault of the petitioner, the amount was not being accepted.
Petition disposed off.
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2021 (7) TMI 102
Refund of unutilized cenvat credit - validity of SCN - SCN was challenged on the ground of Order-in-Original has traversed beyond the show-cause notice inasmuch as the ground for rejection did not form part of the show-cause notice and other grounds were also taken - refund claim was rejected for the reason that the appellant had transitioned the credit for the said period into GST regime and consequently the appellant has not complied with the conditions of N/N. 27/2012-CE dt. 18.06.2012 - HELD THAT:- It is not in dispute that the appellant is an exporter and does not have any domestic services at all. Appellant availed input services for the purpose of rendering output service exporting to his foreign company for which he pays service tax and take cenvat credit. Since the appellant was unable to utilize the cenvat credit for payment of its output liability, the appellant filed a refund claim for the period April 2016 to June 2016 which was rejected by the original authority on the ground that appellant has not debited the refund amount in cenvat credit and service tax return and consequently the refund was rejected on the ground that the appellant has transitioned the input tax credit into TRAN-1 and as per Section 142(4), the refund is liable to be rejected once the cenvat credit is transferred to TRAN-1.
The appellant has proved that he has actually reversed the amount of refund claimed in its cenvat credit account maintained in the books of accounts as prescribed in the Notification before filing the refund claim and Exhibit B clearly shows the reversal of cenvat credit but Commissioner(Appeals) has not appreciated that aspect and has wrongly observed in para 9.1 of the impugned order that the assessee has failed to debit the refund amount in cenvat account. As per the Notification No.27/2012, there is no requirement to debit in the service return, the only requirement under Condition 2(h) of Notification No.27/2012 dt. 18/06/2012 is that the amount i.e. claimed as refund under Rule 5 of the said Rules shall be debited by claimant from his cenvat credit account at the time of making the claim and this condition has been followed by the appellant before filing the claim of refund but the impugned order has misconstrued and misinterpreted the requirement of Notification No.27/2012 - Further it is found that appellant by sheer inadvertent mistake has transitioned the cenvat credit into TRAN-1 during the GST regime. As soon as, he realized his bona fide and unintentional mistake and the reversal was done in GSTR-3B returns in May 2018 itself.
Scope of SCN - HELD THAT:- The impugned order has also travelled beyond the show-cause notice because all the submissions made by the appellant during the adjudication proceedings were not considered by both the authorities below. It is also found that the act of inadvertent transition of refund amount to GST regime and voluntarily reversal of such amount made by the appellant has been submitted before the adjudicating authority by the appellant vide his letter dt. 13.05.2018 which is much before the issuance of the adjudication order in October 2018 but the same was not considered by the adjudicating authority.
The transition of refund amount into GST regime was merely inadvertent error and the same was made good by the appellant by reversing the credit into GSTR-3B filed in May 2018 - the appellant has not violated conditions of the N/N. 27/2012 dt. 18/06/2012 - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 95
Delayed payment of service tax - completion certificate valid or not - residential complex constructed by the appellant from Gram Panchayat, Chota Bangarda - levy of interest - time limitation.
Completion certificate dated 5.2.2013 received in favour of the residential complex constructed by the appellant from Gram Panchayat, Chota Bangarda is valid certificate or not? - HELD THAT:- Though on the date when completion certificate was issued in favour of the appellant by the Gram Panchayat, Chotta Bangarda, the impugned area, the jurisdiction thereof got vested with IMC, Indore. But once the said notification got quashed in February, 2014 the jurisdiction stands revested in Gram Panchayat itself. Thus the Show Cause Notice of October, 2017 should not have been issued. Except for 17 days i.e. with effect from 5.2.2013 to 22.2.2013 Gram Panchayat, Chota Bangarda was not the competent authority in terms of Section 66E (b) of the Finance Act. Rather the said Gram Panchayat was the, competent authority when it issued the permission to construct the said residential complex. The competence of said Gram Panchyat got retained from the order of High Court of February, 2014 - the completion certificate dated 22.2.2017 as was issued by Gram Panchayat was absolutely valid, at the time the Show Cause Notice was issued to the appellant - SCN is void.
Levy of interest on account of late payment of service tax - HELD THAT:- It is observed that the appellant herein has issued the receipt of installment as and when the installment was received no invoice was ever issued by the appellant. The sale deed is a legal documents of the title of property hence cannot be termed as invoice. Also the date of completion of service will be the date when possession of the property is given to the purchaser which shall only be after receipt of sale consideration and the date of receiving final installment, therefore, later will be the relevant date for determination of point of taxation. The calculation placed on record reveals that the service tax liability has been discharged as and when the payment of requisite installment has been received by the appellant. Above all, there is no evidence produced by the Department to the contrary - there is no late payment of service tax by the appellant as is alleged by the Department. Imposition of interest on the ground of late payment is not sustainable.
SCN is barred by time - HELD THAT:- It is on record that the appellant was discharging the service tax liability as and when the installment toward the sale consideration of the property used to be received by the appellant. No mala fide intent can be attributed to such an assessee who otherwise has been regularly discharging the tax liability. Mere evasion of tax does not invite penalties unless and until there is the evidence of some positive act on part of the appellant to show his intend to not to pay the tax. The said evidence is miserably missing in the present case. The proviso to Section 73 of Finance Act could not have been invoked by the Department in the present case - In present case, Show Cause Notice of the year 2017 raising the demand from the year 2012 onwards is, therefore held barred by time.
The findings of the Commissioner (Appeals) are hereby set aside - Appeal allowed.
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2021 (7) TMI 88
Refund claim of service tax paid - rejection on the ground of time limitation - specified services in the course of export under the provisions of N/N. 41/2012-ST dated 29.06.2012 - HELD THAT:- The provisions have to be read harmoniously. When the provisions require that only one claim has to be filed for each quarter, definitely, an assessee has to file one claim only at the end of the quarter. Thus, the limitation cannot be counted from the day of LEO or the last LEO in a quarter, as the assessee cannot file more than one refund claim for each quarter - on harmonious reading of the provisions and also the earlier Notification no.5/2006-CE (NT) read with notification no.41/2007-ST and read with notification no.41/2012-ST, the limitation has to be counted from the first day and after the end of the quarter, and accordingly, it is found that refund claim filed on 27.12.2016 is within limitation.
The refund claim is rejected only on the ground of limitation, which is evident from the show cause notice dated 11.05.2017 as well as from the orders of the Court below - the Adjudicating Authority is directed to disburse the refund within a period of 45 days upon the receipt of the copy of the order with interest as per Rules for the period from 27.03.2017 (3 months ending the date of claim), till the grant of refund.
Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 68
Validity of SCN - Levy of penalty - Extended Period of limitation - service tax collected but not paid - entire service tax along with interest was paid before issue of SCN - Penalty u/s 76, 77 and 78 - proviso to section 73(1) of Finance Act - HELD THAT:-The tribunal has affirmed the order passed by the Commissioner of Central Excise (Appeals) by a cryptic order, which reads as under: The impugned order passed by the Commissioner is justified because in this case the appellant has collected the service tax but did not deposit the same in the Govt Treasury which itself shows that there was malafide intention to evade payment of service tax. The appellant was registered with the Service Tax Department and was very well aware of their liability to pay service tax to the Govt. The appellant has not been able to give any reasonable explanation as to why the service tax was not deposited in the Govt. Treasury.
It is evident that neither Commissioner of Central Excise (Appeals) nor the tribunal have considered the submissions made on behalf of the appellant and by a cryptic and cavalier manner have decided the appeals - the impugned orders passed by Assistant Commissioner, Commissioner of Central Excise (Appeals) and the tribunal therefore, cannot be sustained in the eye of law - the matter is remitted to the Assistant Commissioner to afford an opportunity of hearing to the appellant and to adjudicate the issue with regard to issue of penalty afresh.
Appeal allowed by way of remand.
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2021 (7) TMI 24
Levy of tax which was claimed under Form SVLDRS-1 - the application under the scheme was rejected on the ground of late filing of returns - penalty and interest for late payment of tax for late filing of returns, liable to be imposed but was not imposed - opportunity of hearing not provided to the petitioner - HELD THAT:- According to the Scheme, once an assessee avails the Scheme and files the return by declaration, the verification of declaration by the designated Committee was prescribed under Section 126 of the SVLDRS Scheme and the issue of statement by the designated committee is covered under Section 127 of the SVLDRS Scheme - As per Section 127 of the SVLDRS Scheme, when the declaration made by the petitioner was rejected, meaning thereby he would be liable to pay further interest and penalty on late payment and return. However, to levy any such liability under Section 127 of the SVLDRS Scheme, under Section 127(3), it mandates that after the issue of estimate under Section 127(2), the designated committee shall give opportunity of being heard to the declarant, if he so desires, before issuing the statement indicating the amount payable by the declarant.
The order which is on record whereby the declaration of the petitioner was rejected, meaning thereby he would be liable to pay the additional amount, which would be a levy imposed. In order to impose such levy, the designated committee was duty bound to hear the petitioner by giving him an opportunity of hearing. Considering the benevolent scheme which has been set into motion by the respondents, the petitioner was required to be heard even otherwise under the statutory mandate.
The case is remitted back to the designated committee with a direction to give an opportunity of hearing to the petitioner by adhering to the rules of natural justice - Petition allowed by way of remand.
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2021 (7) TMI 23
Refund of Cenvat credit - Denial on the ground of want of nexus - HELD THAT:- Refund denied by relying on various decisions including an order of this bench of the Tribunal in the case of M/S. TEMENOS INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2020 (2) TMI 354 - CESTAT CHENNAI] wherein the denial of refund on the very same issue has been held to be incorrect.
The denial of refund cannot be sustained - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 22
Refund of service tax and cesses paid - failure to distribute credit to their SEZ and DTA units in the manner prescribed under Rule 7 of Cenvat Credit Rules, 2004 - failure to pay the vendors for the invoices on which refund is claimed - failure to prove claim of cenvat credit - violation of condition at para 3(III)(a), 3(III)(d) and Rule 5 of SEZ Notification No.12/2013-ST dt. 01/07/2013 - HELD THAT:- The appellant has SEZ units as well as DTA units and had centralized Service Tax registration at Bangalore. The present refund application pertains to only SEZ units and is not connected with DTA units whereas the Commissioner(Appeals) in the impugned order has wrongly come to the finding that the appellant has filed refund claim application for input services which have also been used in DTA units. Further it is found that the impugned services involved in the present case for which refund has been denied, fall in the approved list of input services issued by the Development Commissioner and the appellant has produced on record the instruction issued by the Government of India, Ministry of Commerce and Industries, SEZ unit, where it is found that these services have been specifically covered as input services. For each violation alleged by the Revenue, appellant have produced documentary proof in the form of invoices, bank statements and other records but the same has not been considered by the authorities below. Appellant has produced all those documentary proof along with the appeal paper book and some of the documents have also been produced along with written submissions at the time of hearing of these appeals. Since those documents and statements have not been considered in the impugned order by the learned Commissioner(Appeals) and the Commissioner(Appeals) has come to the finding which is not based on verification of the documents.
The matter needs to be remanded to the original authority with a direction to consider the statements, invoices and documents produced by the appellant in support of his claim and thereafter decide the refund application by passing a reasoned order - Appeal allowed by way of remand.
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