|
Advanced Search Options
Service Tax - Case Laws
Showing 21 to 40 of 71 Records
-
2022 (5) TMI 984 - CESTAT CHENNAI
Refund claim - claim is hit by limitation when filed after the introduction of GST, or not - overriding effect of section 142(8)(b) of CGST Act, 2017 - rejection on the ground of unjust enrichment - HELD THAT:- The Tribunal in the case of Jai Mateshwaari Steels Pvt. Ltd. [2022 (3) TMI 49 - CESTAT NEW DELHI] where it was held that in the facts of the present case, no limitation is applicable as provided under Section 11B (one year from the relevant date), due to overriding effect of CGST Act. Accordingly, I find that the appellant is entitled to refund under the provisions of Section 142(3) r/w 142(8) (b) of the CGST Act r/w the erstwhile provisions of Central Excise Act and the Cenvat Credit Rules.
The rejection of refund claim on the ground of limitation is not justified - Appeal allowed - decided in favor of appellant.
-
2022 (5) TMI 967 - SUPREME COURT
Levy of service tax - Reverse Charge (RCM) - taxability of the cross charge, which is primarily based on who should be reckoned as an employer of the secondee - Manpower Recruitment Agency Service - employees who were seconded to the assessee by the foreign group companies - CESTAT set aside the demand - Extended period of limitation - HELD THAT:- During the arrangement, the secondees work under the control and supervision of the Indian company and in relation to the work responsibilities of the Indian affiliate. Social security laws of the home country (of the secondees) and business considerations result in payroll retention and salary payment by the foreign entity, which is claimed as reimbursement from the host entity. The crux of the issue is the taxability of the cross charge, which is primarily based on who should be reckoned as an employer of the secondee. If the Indian company is treated as an employer, the payment would in effect be reimbursement and not chargeable to tax in the hands of the overseas entity. However, in the event the overseas entity is treated as the employer, the arrangement would be treated as service by the overseas entity and taxed.
Section 65 (44) excludes from its sweep [by clause (b)], “a provision of service by an employee to the employer in the course of or in relation to his employment.” The assessee contends that the secondment agreement has the effect of placing the overseas employees under its control, so to say, and enables it to require them to perform the tasks for its purposes. It emphasizes that the real nature of the relationship between it and the seconded employees is of employer and employee, and outside the purview of the service tax regime - It is evident, that prior to July 2012, what had to be seen was whether a (a) person provided service (b) directly or indirectly, (c) in any manner for recruitment or supply of manpower (d) temporarily or otherwise. After the amendment, all activities carried out by one person for another, for a consideration, are deemed services, except certain specified excluded categories. One of the excluded category is the provision of service by an employee to the employer in relation to his employment.
A vital fact which is to be considered in this case, is that the nature of the overseas group companies business appears to be to secure contracts, which can be performed by its highly trained and skilled personnel. This business is providing certain specialized services (back office, IT, bank related services, inventories, etc.). Taking advantage of the globalized economy, and having regard to locational advantages, the overseas group company enters into agreements with its affiliates or local companies, such as the assessee. The role of the assessee is to optimize the economic edge (be it manpower or other resources availability) to perform the specific tasks given it, by the overseas company - This court is not concerned with unravelling the nature of relationship between the overseas company and the assessee. However, what it has to decide, is whether the secondment, for the purpose of completion of the assessee’s job, amounts to manpower supply.
It is held that the assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued).
Invocation of the extended period of limitation - HELD THAT:- The fact that the CESTAT in the present case, relied upon two of its previous orders, which were pressed into service, and also that in the present case itself, the revenue discharged the later two show cause notices, evidences that the view held by the assessee about its liability was neither untenable, nor mala fide. This is sufficient to turn down the revenue’s contention about the existence of “wilful suppression” of facts, or deliberate misstatement. For these reasons, the revenue was not justified in invoking the extended period of limitation to fasten liability on the assessee.
The assessee was the service recipient for service (of manpower recruitment and supply services) by the overseas entity, in regard to the employees it seconded to the assessee, for the duration of their deputation or secondment. Furthermore, the invocation of the extended period of limitation in both cases, by the revenue is not tenable.
The appeals are partly allowed.
-
2022 (5) TMI 909 - CESTAT CHENNAI
Classification of services - Man Power Recruitment or Supply Agency Service or not - contracts with various persons for supply of man power for utilizing such man power in their factory - period involved from April 2008 to March 2013 - penalty - HELD THAT:- The Tribunal in similar cases, wherein contactors had provided services to TAFE and income was received on piece rate, had observed that the contractors were liable to execute the work for TAFE and are responsible for the defect, if any. It was held that the activity would not fall within the definition of “Man Power Recruitment or Supply Agency Services” - In similar matters in G. RAMAKRISHNAN, K. BALAKRISHNAN, P. KANNUSAMY, M. ARULPRAKASAM, R. ATHINARAYANAN, S. SUBBURAYALU VERSUS CCE & ST MADURAI [2019 (3) TMI 42 - CESTAT CHENNAI] where the period involved is prior to June 2012, the Tribunal had set aside the demand relying upon the decision in the case of BHAGYASHREE ENTERPRISES, SONAWANE INDUSTRIAL VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2017 (3) TMI 786 - CESTAT MUMBAI].
There is change of law with effect from 01.07.2012. It is submitted by the Ld. Counsel for appellants that appellants have obtained registration with the department and has started paying service tax. In similar matters for the period after June 2012, the Tribunal in K. BALAKRISHNAN AND N. RADHAKRISHNAN VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, MADURAI [2021 (9) TMI 181 - CESTAT CHENNAI] has remanded the matter to the adjudicating authority for re-computation of the service tax after granting cum tax benefit.
Penalty - HELD THAT:- The issue being purely interpretational and the appellants having taken registration after 2012, the penalty imposed is unwarranted - In the remand proceedings, the adjudicating authority shall look into as to whether the demand of service tax is legal and proper and also the correctness of the quantification.
The appeals for the period prior to June 2012 are allowed - for the period after June 2012, the matter is remanded to the adjudicating authority and penalties imposed are set aside - appeal allowed in part and part matter on remand.
-
2022 (5) TMI 908 - CESTAT NEW DELHI
Refund of service tax paid - payment of tax due to mistake in facts or of law - period of limitation - whether the amount of Rs.4,78,222/- as was deposited by the appellant on 14.3.2016 was the amount of duty/tax? - HELD THAT:- Apparently and admittedly the said amount was deposited under the wrong impression of appellant being the liable to Service Tax for providing the construction service to M P Police Housing Corpn. Ltd. There is no denial to the fact that these services were exempted from the tax liability till March 2015 under Notification No. 06/2015 dated 1.3.2015. There is also no denial to the fact that the exemption was removed only for the period of one year i.e. from March 2015 to March 2016. From the notification No. 06/2015 vide Notification No. 9/2016 dated 1.3.2016, the retrospective exemption for the construction services provided under contract prior to 1.3.2015 was announced.
There is no denial to the fact that service in question were rendered by the appellant in favour of the contract with M P Police Housing Corpn. Ltd. dated 30.6.2014 i.e. the contract was prior to 1.3.2015. Hence, irrespective the construction was raised during the year 2015-16, the exemption to the liability as introduced vide Notification No. 9/2016 is very much applicable to the impugned service. This perusal makes it abundantly clear that the appellant was not liable to pay Service Tax for rendering the services in question. Consequently, it is held that the amount of Rs.4,78,222/- was not the amount of Service Tax. It was merely a deposit being made by the appellant in view of the ongoing confusion about the liability.
The law with respect to the deposits being made by the assessee due to mistake either of the fact or of law is no more res integra to the effect that section 11B of Central Excise Act is not applicable to such deposits. Time bar of said section cannot be invoked while refunding the amount of deposit.
Appeal allowed - decided in favor of appellant.
-
2022 (5) TMI 907 - CESTAT BANGALORE
Refund claim of unutilized CENVAT Credit - Input services or not - partial refund also denied on the ground of nexus between the services received and the services exported - HELD THAT:- From the orders of the lower authorities, it is found that there are no objection was taken when the said input services were consumed, but only when it came to the granting of refund did the Revenue raise the objection that the services did not qualify as input service and that there was no nexus between the services received and services exported. This defeats the very purpose of the CENVAT scheme.
The rejection of the refund claims is not sustainable - Appeal allowed.
-
2022 (5) TMI 868 - CESTAT MUMBAI
Taxability - business auxiliary service - submission is that the agencies of the state government are ‘clients’ of the appellant on whose behalf maintenance of roads is undertaken appears to have overlooked the underlying scheme of the tender which brought the appellant in to the transaction - HELD THAT:- ‘Toll’ is a constitutionally authorized levy assigned to governments of constituent states of the Union and, unarguably, to be collected under the authority of the state government. It is not the case of the service tax officers that the mechanism erected for such collection compromises the characteristic of the levy into two – ‘toll’ and other – but that denomination of the latter as ‘commission’ in the contract constitutes two activities of which only one was taxable. Concatenating the deprivation of authority to determine the charges leviable from users and the monitorial oversight by the agencies of the state government, the adjudicating authority concluded that ‘principal and agent’ relationship existed.
The megatrends in infrastructure development of the country in recent decades have increasingly incorporated private sector participation, to a lesser or larger degree, in big projects requiring massive investment for transfer of risk to the private entity – whose core competency it is – and, in return for assured lumpsum payment, also the potential earnings through models such as ‘build operate transfer’ (BOT) and ‘build own operate transfer’ (BOOT). The terms of engagement is thus clear: possession of the upgraded/constructed asset is transferred to the appellant for the stream of lumpsum payment guaranteed by the appellant while alienating risk of sub-optimal use and risk of asset deterioration - Oversight by agencies of the state is intended to assure proper maintenance of the asset and fixation of rates is retained by the government to prevent exploitative exaction both of which are mandated by public interest and not as a facet of principal-agent equation. Thus, tax liability does not arise by way of being ‘commission agent’ in section 65(19) of Finance Act, 1994 for the period prior to introduction of ‘negative list’ regime.
Adjudication should have been limited to taxability arising from rendering ‘commission agent’ service without venturing also to emplace the activity of the appellant under other enumerations that fall within the definition of the said service. The impugned proceedings has not appreciated the nature of the contract and, having limited itself to superficial determination with reference to random phrases, has overlooked the substantive difference in risk assumption that is the key to ‘principal-principal’ transaction. The circular of Central Board of Excise & Customs has been assigned undeserved emphasis and the exclusion by way of ‘negative list’ has been improperly construed by the adjudicating authority.
Appeal allowed.
-
2022 (5) TMI 867 - CESTAT BANGALORE
Refund claim - credit of additional duty of customs (CVD) on inputs imported - credit of service tax on certain input services like renting of immovable property, of ITSS Services and Consulting Engineering services procured locally and Air passenger transport services - Reverse Charge Mechanism - Refund of services locally procured but billed in US Dollars is not admissible - Refund on defective invoices - rejection on the issue that there is no nexus of the input services with the services exported - HELD THAT:- As far as the issue of nexus is concerned, the same stands covered by various decisions which have been delivered subsequent to the passing of the impugned orders - In the case of TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX [2014 (9) TMI 1135 - CESTAT, BANGALORE], it was directed that the issue of nexus be determined in the light of the directions given in the Interim Order - This Bench has also decided the nexus in respect of various services in the case of SAMSUNG R&D INSTITUTE INDIA BANGALORE PVT. LTD. VERSUS C.C.E & C.S.T. -BANGALORE SERVICE TAX- I [2019 (7) TMI 1418 - CESTAT BANGALORE]. The issue of nexus in respect of the services, raised in the impugned orders are now settled. Therefore, on the issue of nexus, the appeals are allowed.
Refund of credit of service tax wherein invoices were raised in the USD, in respect of ITSS Services - HELD THAT:- It is seen that the refund relates to invoices raised by many companies (around twenty); though the services were procured in India, receipts were in foreign currency; the appellant’s claim that they have sub-contracted part of their activity to these vendors. It is a argument of the appellants that these services were utilised by them while rendering service to the overseas entity. However, it is found that as per the tripartite agreement between TI, USA, TI, India and the vendors payments are made in foreign currency by TI, USA, implying thereby that the service recipient is TI, USA and not the appellant. Therefore, the services of vendors can be at best treated as export by the vendors themselves and not the TI, India, the appellant.
It is clear that even as per the tripartite contracts, the appellants are a sort of middle-man in respect of the services rendered by the vendors. While TI, USA receives the services rendered by the vendors and pays for the same in USD, TI, India acts only as a facilitator in receiving the money in USD from TI, USA and making payments to the Indian vendors in INR. The appellants, therefore, cannot be held to be receivers of the input services rendered by the vendors and used in the export of services to TI, USA - the appellants take neither take the credit of service tax paid on the services rendered by the vendors nor claim the same as refund.
Thus the issue of nexus between various input services and the export services is settled in favour of the appellants - Appellants are not eligible to take the credit of service tax paid on the services rendered by the vendors, for which they received payment from TI, USA in USD, and consequentially, the appellants are not eligible to claim refund of the same - appeal allowed in part.
-
2022 (5) TMI 800 - GUJARAT HIGH COURT
Juristic person - separate identity - mutuality of services - sharing of profit - whether a Partner in the Firm can be said to be rendering services to the Partnership Firm so as to fall within the ambit of services as per the Finance Act, 1994? - HELD THAT:- For the period prior to 01.07.2012, there is no definition of a ‘person’ in the Finance Act, 1994 - the term ‘person’ was defined for the first time with effect from 1.7.2012 vide Section 65B (37) of the Finance Act. The period of dispute in all these appeals is prior to 01.07.2012 - Prior to 01.07.2012, there was no definition of the term “person” in the Finance Act, 1994. Only with effect from 01.07.2012, vide Section 65B (37) of the Finance Act, 1994, a ‘person’ was defined for the first time. This definition, inter alia, included a firm.
The partnership firm, M/s Zydus Healthcare cannot be considered as a ‘person’ distinct from the Respondent – partner. Therefore, there cannot be a service provider – service recipient relationship between a partner and the partnership firm when a partner discharges his duties as a partner pursuant to deed of partnership. Hence no service tax is payable on the activities performed by the respondent in the capacity of partner to the firm - Section-65(105)(zzb) applies to service provided to a client by a person in relation to business auxiliary service. Hence, two distinct persons are required to attract this levy.
Partner’s capital to a firm can be in the form of cash/asset. It can also be in the form of contribution of skill and labour alone without contribution in cash – “sweat equity”.
The substantial questions of law are answered in favour of the respondents and against the revenue - appeal dismissed - decided against Revenue.
-
2022 (5) TMI 799 - CESTAT NEW DELHI
Short payment of service tax - outdoor catering service - abatment of 30% (for goods component), as per notification no. 30/2012-ST - HELD THAT:- There was no dispute with regard to the gross bill raised by the appellant-assessee, as proposed in the SCN. The Appellant had taken a point of law that being eligible under the notification, they have availed abatement of 30% with respect to outdoor catering services under Notification no. 30/2012-ST, which has not been found to be wrong. Accordingly, this demand is set aside and the ground is allowed in favour of the appellant-assessee.
Short payment of service tax - renting of immovable property - availment of abatement of 40% erroneously - HELD THAT:- The mistake is bona fide as it is not the case that appellant have collected more tax but have deposited less tax. The learned Counsel admits that the liability of Rs. 22,824 and undertakes to pay the same, if not paid alongwith interest as applicable.
Levy of penalty u/s 70 r/w Rule 7C of Service Tax Rules - late filing of returns, during period 2014-15 to 2017-18 (up to June 2017) - HELD THAT:- As per para 15 of the order-in-original, the delay is computed wherein it is from 4 days to 256 days, the penalty have been imposed penalty at varying rates from Rs. 300 to Rs. 20,000/-. Learned Counsel states that the delay has been caused due to the circumstances beyond the control and there is no deliberate default. Relying on the ruling of this Tribunal in the case of M/S VIM COATS VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (8) TMI 365 - CESTAT AHMEDABAD], urges that the penalty may be reduced appropriately - the amount of penalty for the return period October 2016 to March 2017, is reduced from Rs. 20,000/- to Rs. 2000/- and for the period April 2017 to June 2017 from Rs. 14,900/- to Rs. 1,400/-. Further, penalty under Section 70 for other returns is not interfered with.
Levy of interest for short payment of service tax - Section 75 of the Finance Act - HELD THAT:- The said amount is set aside by way of remand with direction to the adjudicating authority to re-compute the amount of interest payable, after adjustment of any amount lying to the credit. If any balance is payable, the same shall be paid by the appellant-assessee. In case, any amount is found to be paid excess, the appellant have been entitled to refund as per rules.
Penalty under Section 78 is set aside under the facts and circumstances there being no deliberate avoidance of tax or contumacious conduct, the penalty under Section 78 is set aside.
Appeal allowed in part and part matter on remand.
-
2022 (5) TMI 750 - DELHI HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - it is alleged that the petitioner could not deposit within the prescribed timeframe the “amount declared” in the scheme - HELD THAT:- Ordinarily no direction can be issued by the Court for extending the timeframe provided under the Scheme as this would be the prerogative of the respondents having regard to the ground realities - However, given the circumstances that have been put forth by Mr. Mankotia on behalf of the petitioner, in particular, the fact that the petitioner claims that she is afflicted with cancer, the designated committee or any other appropriate authority will treat the writ petition as a representation and dispose of the same.
Petition disposed off.
-
2022 (5) TMI 749 - CESTAT NEW DELHI
Voluntary Compliance Encouragement Scheme - classification of services - works contract or construction of road under civil construction services? - factual errors in the computation of the demand or not - eligibility for cum-duty benefit - eligibility for exemption on the service rendered for construction of a road - Penalty.
Whether there is a calculation error in the demand confirmed? - HELD THAT:- The Commissioner arrived at the differential duty payable by way of a Chart and finds that:“I also hold that the differential amount of Rs.1,29,744/- is recoverable from the declarant under section 73 of the Finance Act, 1994 read with Section 111 of Finance Act, 2013.” However, he has confirmed an amount of Rs.3,64,587/-. The appellant has given a calculation sheet to show the differential duty payable for different years from 2008-09 to 2011-12. The adjudicating authority has not considered these submissions. There is also an inherent contradiction in the calculation and findings by the adjudicating authority.
Whether the adjudicating authority was correct in classifying the services rendered by the appellant under ’Works Contract Service”? - HELD THAT:- The classification of taxable services has to be on the basis of nature of the work and terms of the contract. Though “works contract” has service and supply of goods as essential ingredients, vice-versa may not be true. The classification of services can be done only when the same falls under “works contract” as defined in the Statute. - There is force in the submissions of the appellant. The classification of the service should necessarily depend on the nature of the work and the contract and not on the basis of nomenclature -
Whether the appellant is eligible for cum-duty benefit? - HELD THAT:- The appellant has made out a prima facie case for the cum-duty benefit - reliance placed in the case of P. JANI & CO. VERSUS COMMR. OF SERVICE TAX, AHMEDABAD [2010 (7) TMI 297 - CESTAT, AHMEDABAD] where it was held that as regards the request for treatment of the amount received as inclusive of service tax, I agree with the contention of the learned advocate that the decision of the Tribunal in the case of COMMR OF C. EX & CUS., PATNA VERSUS ADVANTAGE MEDIA CONSULTANT [2008 (3) TMI 59 - CESTAT KOLKATA] applies and in view of the provisions of Section 67 of Finance Act, 1994, the amount received has to be treated as inclusive of tax.
Whether the appellant is eligible for exemption on the service rendered for construction of a road? - Commissioner has denied exemption from the service tax on the ground that it was a private road; no free access was permissible to general public; the value of services in construction of a road was not separately worked out and that the services are not covered in exempted services - HELD THAT:- The provision of section 65 (105) (zzzza) of the Finance Act shows that the said provision does not differentiate between a public road or a private road. Therefore, it appears that the observations of the Commissioner are not correct - the impugned order has not appreciated the legal position correctly and has not given findings backed by law and reason. The appellant did not place on record the necessary documents and submissions before the Commissioner. Therefore, in the interest of justice, the issue requires to be remanded to the adjudicating authority for proper appreciation of law and the facts of the case - appellant may submit the necessary documentary evidence and submissions before the adjudicating authority.
Penalty - HELD THAT:- Understandably, this is a case opened up after a declaration had been filed by the appellant under the VCES. Though, the authorities can verify the correctness of the claim of the appellant and arrive at the exact tax liability, imposition of any penalty would be detrimental to the Scheme itself. In fact, imposition of penalty would defeat the very purpose of bringing in such an amnesty Scheme to encourage voluntary tax compliance. Therefore, penalty cannot be imposed, in the facts and circumstances of the case.
The appeal is partly allowed by way of remand to the adjudicating authority. Penalties imposed are, however, set aside.
-
2022 (5) TMI 713 - CESTAT AHMEDABAD
Refund of service tax paid - rejection on the ground that some services were not identified as specified services by the Approval Committee - interest on delayed refund - HELD THAT:- In the appellant’s own case M/S. INTAS PHARMA LIMITED VERSUS COMMISSIONER OF SERVICE TAX AHMEDABAD [2013 (7) TMI 703 - CESTAT AHMEDABAD], the benefit of refund has been allowed in respect of services not listed as a specified services approved by the approval committee - thus, the appellants are entitle to refund in respect of services received by them for the authorized operations even if, such services are not listed as a specified services in the list approved by the Approval Committee.
Interest on delay in payment of refund in terms of Section 11BB - HELD THAT:- There is no specific mechanism provided for notification No. 12/2013-ST. Consequently, all these refund would be governed by Section 11B and therefore, the appellant would be entitle to interest in terms of Section 11BB.
Appeal allowed - decided in favor of appellant.
-
2022 (5) TMI 712 - CESTAT NEW DELHI
Condonation of delay of almost 10 months in filing appeal - sufficient reasons for delay or not - due to medical emergency prevailing in the family of the Chartered Accountant, could not take steps in time - HELD THAT:- The delay has been cogently explained by the Appellant/ assessee in filing their appeal before the Commissioner (Appeals). Accordingly, in the interest of justice, the delay in filing Appeal before the Commissioner (Appeals) is condoned, and this Appeal is allowed by way of remand to the learned Commissioner (Appeals), to decide the Appeal on merits after hearing the Appellant and giving opportunity of making his pleading and filing evidence in support of their contentions.
The Appellant is directed to appear before the Commissioner (Appeals) with a copy of this order within a period of 60 days from the date of receipt of this order and seek opportunity of hearing, alongwith a copy of their fresh grounds of appeal and explanations, alongwith evidences as they wish to rely upon - Appeal allowed by way of remand.
-
2022 (5) TMI 652 - CESTAT NEW DELHI
Refund claim - time limitation - refund claimed within a period of twelve months from 21.09.2017 being the date of filing of revised return, or not - HELD THAT:- There is no controversy regarding the quantum of amount refundable. Further, there is no allegation nor any finding by the Court below with regard to unjust enrichment. Further, in the facts and circumstances, it is found that there is no scope to transfer any service tax liability as the credit has been taken after the appointed day and also filing of Form TRAN-1. Further it is held that no time limit is prescribed under the transition provision of Section 142(9)(b) of the CGST Act, for claim and grant of refund.
The appellant is entitled to refund of the said amount of Rs. 1,18,237/-. The Adjudicating Authority is directed to disburse the refund of the said amount within a period of (60) sixty days from the date of receipt of this order alongwith interest under Section 11BB of the Central Excise Act - refund allowed - appeal allowed - decided in favor of appellant.
-
2022 (5) TMI 651 - CESTAT NEW DELHI
Refund claim - time limitation - Whether the statutory time prescribed under section 11B shall be applicable to the amount erroneously deposited by the appellant despite having no liability to deposit the same? - reverse charge mechanism - HELD THAT:- From the bare reading of the section 11B, it is clear that the provision refers to the claim of refund of duty of excise only, it does not refer to any other amount collected without authority of law - In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the Department / Adjudicating Authority was not the liability of the appellant due to the prevalent exemption during the relevant period for the impugned services received by the appellant (payment was made under reverse charge mechanism).
There is lack of authority to collect such service tax by the appellant. It would not give the Department an authority to retain the amount paid which otherwise was not payable by the appellant. Nothing may act as an embark on the right of the appellant to demand refund of payment made by them under the mistaken notion - The issue has been dealt by Hon’ble Supreme Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT]. It has been held that one has to see whether the amount claimed is unconstitutional and outside the provisions of section 11B of the Act.
In the present case also, due to the exemption of N/N. 25/2012 dated 20.06.2012 the services on which the appellant had paid service tax i.e. non air conditioned contract carriage under rent a cab service was the exempted service. Hence at the time of the payment the payment had no colour of liability as already discussed above section 11B of Excise Act is not applicable. Hence, the bar of limitation under section 11B also cannot be made applicable upon the said amount.
Appeal allowed - decided in favor of appellant.
-
2022 (5) TMI 573 - BOMBAY HIGH COURT
Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - quantification of tax payable - opportunity of hearing - it is alleged that the declaration of the Petitioner was rejected without hearing the Petitioner and the reason given for the rejection is “Amount not quantified before 30.06.2019” - Circular dated 27.08.2019 - HELD THAT:- The term ‘quantification’ was subject matter of interpretation in various judgments of this court. The quantification of the duty, demand or duty liability has to be on or before 30.06.2019 to avail the benefit of SLVDRS. In the present matter, the Petitioners have given a statement about the service tax liability. Even in the affidavit in reply, the Respondents have averred that the assessee was summoned and that one Mr. Kothari in his statement dated 16.05.2019 voluntarily stated that for the outstanding dues of the service tax for the period November, 2015 to June 2017 is Rs.46,36,960/- and in his statement dated 17.05.2019, he had stated that the outstanding dues for service tax was Rs.46,59,031/- and the amount of Rs.42,77,721/- was paid and, therefore, the outstanding was Rs.3,81,310/-.
The Petitioners had made out a case wherein the Petitioners ought to have been given an opportunity of hearing. In the present case, the declaration of the Petitioners under SVLDRS-1 scheme has been rejected without giving an opportunity of hearing. The Petitioners could have pointed out all these facts. Under the circular dated 27.08.2019, it has also been clarified that the written communication will include a letter intimating duty demand, or duty liability admitted by a person during enquiry, investigation or audit or audit report. Statement of the Petitioners is recorded much before the cut-off date viz. 30.06.2019. The same ought to have been considered by the Respondents.
The impugned order dated 15.01.2020 rejecting Petitioner no.1’s declaration in terms of Form SVLDRS-1 is set aside - Respondents shall after hearing the Petitioners decide afresh declaration made by the Petitioners in terms of Form SVLDRS-1 after giving an opportunity of hearing to the Petitioners - Petition disposed off.
-
2022 (5) TMI 572 - BOMBAY HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - levy of service tax on Renting of Immovable Property Services - Circular No.1073/06/2019.CX dated 29th October 2019 - HELD THAT:- The circular clarifies that the Retailer Association of India has represented that the department has initiated proceedings against lessors for non-payment of service tax on rent over immovable property rented by the members - It is further clarified in the aforesaid circular that such members are allowed to file declaration under the Scheme and avail the benefits. The petitioner/lessor has filed appeal before the Apex Court. The said circular is clarificatory in nature.
Needless to state that the petitioner is required to comply with all the conditions under the Scheme for availing the benefit of the said scheme. Respondents shall reconsider the declaration of the petitioner and shall not reject it on the ground upon which impugned order is passed.
Writ petition is disposed of.
-
2022 (5) TMI 571 - BOMBAY HIGH COURT
SVLDR Scheme - Litigation category - Arrears category - remission of duty - recovery of the CENVAT credit - Section 121 of the Finance Act - HELD THAT:- It is stated that on 31st October, 2020, the scheme Sabka Vishwas (Legacy Dispute Resolution) Rules, 2019 has come to an end. On or about 27th January, 2020, the Form No. SVLDRS-3 was given and the Petitioner was directed to pay estimate amount of Rs.7,09,444/-. The Counsel for the Petitioner during the course of hearing before the Authority, accepted the category as Arrears. The Respondents accepted the same and issued the estimated amount payable by the Petitioner under the Scheme. It is trite that concession given by an Advocate against the statute would not bind the litigant. However, it needs to be considered that though the estimated amount payable by the Petitioner under the Arrears category, was informed to the Petitioner on or about 27th January, 2020. The Petitioner did not take any steps against the same.
There are no bona fide on the part of the Petitioner in offering to make payment nor the Petitioner approached this Court within a reasonable time - The Apex Court in case of M/S. YASHI CONSTRUCTIONS VERSUS UNION OF INDIA & ORS. [2022 (3) TMI 110 - SC ORDER], has confirmed the order of High Court, refusing to grant relief to the Petitioner therein for extension of period to make deposit under the scheme.
Considering the delay and latches in approaching this Court, so also lack of bonafides on the part of the Petitioner, the Writ Petition cannot be entertained - petition disposed off.
-
2022 (5) TMI 570 - BOMBAY HIGH COURT
Validity of SCN - earlier show cause notice was adjudicated by the Authority and the proceedings were dropped - advantage of extended period of lockdown once the similar issue has been adjudicated by the Authority - HELD THAT:- The party against whom the show cause notice is issued has an opportunity to file his say and contest the show cause notice on merits. Prima facie, the earlier show cause notice issued to the petitioner and was adjudicated upon, recites about the Department’s opinion on variation of taxable value reported in the returns fled for the period of 2012-13 and 2013-14. The basic premise for issuance of show cause notice in the year 2017 was, in the opinion of the Department, variation of taxable value as reported in the return by the assessee in 2012-13 and 2013-14, whereas the period involving the present show cause notice is 2014-2015, the same is spelt out in the present show cause notice.
As prima facie the period of show cause notice do not overlap and they are distinct so also the earlier show cause notice and the present show cause notice does not appear to be for same period, we are not inclined to exercise the writ jurisdiction - In the case of Supermax Personal Care Pvt. Ltd. [2021 (4) TMI 368 - BOMBAY HIGH COURT] decided by the Division Bench of this Court, the notice was issued by the Commissioner, Thane, who had no jurisdiction and the Court observed that the goods are manufactured at Una, Himachal Pradesh, the Commissioner at Thane had no jurisdiction to issue show cause notice/demand notice.
In the present case, the period of present show cause notice and earlier show cause notice prima facie appear to be different and it is not the case of petitioner that the Authority issuing show cause notice inherently lacks jurisdiction - The writ petition is disposed of with liberty to the petitioner to file reply to the show cause notice and put-forth his stand.
-
2022 (5) TMI 569 - CESTAT NEW DELHI
CENVAT Credit - providing renting services - inputs/capital goods/input services used for construction of buildings and structures, which are then used for providing services - case of Revenue is that the inputs, capital goods and input services which go into creation of such an immovable property does not qualify as input, capital goods service or input service under the CENVAT Credit Rules, 2004 - HELD THAT:- This issue was addressed by various High Courts - In COMMR. OF C. EX., VISAKHAPATNAM-II VERSUS SAI SAHMITA STORAGES (P) LTD. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT], the High Court of Andhra Pradesh has decided that CENVAT credit is admissible on cement and TMT bars for construction of warehouses by M/s Sai Samhita who were providing storage and warehousing services.
There are substance in the submission of the appellants on merits as it is undisputed that the appellants are engaged in providing renting of immovable property service and all the inputs, capital goods and input services which are in dispute were used for construction of buildings which were then rented out and service tax was paid on the renting of immovable property service.
The only question which remains is whether, by virtue of the fact that the building which emerges is neither a good nor a service, the appellant can be denied CENVAT credit. The jurisdictional Delhi High Court in VODAFONE MOBILE SERVICES LIMITED, INDUS TOWERS LIMITED, TOWER VISION INDIA PRIVATE LIMITED, BHARTI INFRATEL LIMITED, VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (11) TMI 713 - DELHI HIGH COURT] has held in favour of the appellant.
The appellants are entitled to the disputed CENVAT credit. Consequently, the impugned orders seeking to deny and recover CENVAT credit along with interest and seeking to the impose penalties cannot be sustained - Appeal allowed - decided in favor of appellant.
|
