|
Advanced Search Options
Service Tax - Case Laws
Showing 21 to 40 of 891 Records
-
2022 (12) TMI 1144 - CESTAT AHMEDABAD
Levy of Service tax - Business Auxiliary service of not - commission amount paid to foreign Commission agent - extended period of limitation - Revenue Neutrality - HELD THAT:- As regards the question of extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994, the same would not be available to the Department on the ground of revenue neutrality. We are of the view that the demand, having been raised by invoking the longer period of limitation is hit by the provisions of Section of the Act.
If non-registration and non-filing of returns is the criteria for rejecting the appellant‟s plea of bona fide belief and holding against them, the plea of limitation would not be available to any assessee, inasmuch as the Service Tax liabilities would arise only in those cases where the appellants are not registered and are not filing the returns. Coming to the bona fide belief of the assessee, there are number of factors which are required to be considered.
As no intention to contravene the provisions of Finance Act, 1994 and of the rules made thereunder can be attributed to the appellant for the reason that even if they are required to pay Service Tax on the disputed service, in question, provided by foreign agent, the entire Service Tax paid under RCM would be immediately available to them as Cenvat Credit and collection of Service Tax from the appellant would be a revenue neutral exercise - there are plethora of judgments by various Courts that no mala fide can be attributed to an assessee so as to invoke the longer period of limitation.
The demand is barred by limitation and is required to be set aside - Appeal allowed.
-
2022 (12) TMI 1143 - CESTAT NEW DELHI
Invocation of extended period of limitation - non-payment of service tax - providing the taxable service as that of Business Auxiliary Service on commission basis who had collected huge amount from various persons/companies/organizations etc. during the period from 01.10.2014 to 30.06.2017 - suppression of facts or not - HELD THAT:- It is an admitted case of the appellant that the appellant did not get itself registered under Service Tax Commissionerate during the period in question while providing the impugned “Business Auxiliary Services” on commission basis. It has also been acknowledged while making submissions that the issue of services in question being taxable is no more res integra - Reliance placed in the decision of this Tribunal in the case of VED AUTOMOTIVES VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR [2016 (11) TMI 836 - CESTAT ALLAHABAD], wherein a reference has been answered holding that the activity of direct selling agent on commission basis is a “Business Auxiliary Service” which is taxable under Section 65 (19) of the Finance Act, 1994.
Whether the demand should not have been confirmed as the Show Cause Notice was issued beyond the normal period of limitation? - HELD THAT:- It is observed that department can issue a show cause notice beyond the prescribed period of one year from the period under question only in accordance of the proviso to Section 73 of the Finance Act, 1994 - here there is suppression of any fact for the reason of fraud or collusion or any willful misstatement with an intent to evade duty, the department is entitled to invoke the extended period. No doubt mere non-disclosure of fact will not be such suppression as may entitle the department to invoke this provision except where there is an intent to evade the duty. From the above observed admission of the appellant, it is clear that appellant was not paying the service tax to the department despite providing the taxable service. It is also nowhere denied that even the service tax registration was not obtained.
It is also observed that the present show cause notice was issued based upon the information received from the Income Tax Department. It becomes clear that the amount received by the appellant during the period under challenge was taken as the income of the appellant and accordingly, the income tax liability thereupon was being discharged by the appellant. The circumstances are sufficient for me to hold that there was no intent on the part of the appellant to evade the liability - it is held that the intent to evade the duty has wrongly been confirmed against the appellant. The non-payment of service tax was purely a bona fide unawarenss about the liability. In such circumstances the extended period could not have been invoked. The order under challenge though has dealt with the amount which was service tax liability of the appellant but the demand was not raised during the statutory period prescribed for raising the same. As held above, there was no reason to invoke the extended period of limitation. It is held that demand has been time barred and thus has wrongly been confirmed by Commissioner (Appeals).
Appeal allowed.
-
2022 (12) TMI 1142 - CESTAT MUMBAI
Work contract services - Determination of Value - Consideration - taxability of amount received on accrual basis - Commercial or Industrial Construction services/ Erection, Commissioning or Installation service - Works Contract service - Renting of Immovable Property service - Business Support services - demand of service tax alongwith interest and penalty - HELD THAT:- From the impugned order, para 13.4, it is evident that Commissioner has concluded that the amount of Rs 60,00,000/- forfeited by the Appellant, is a consideration on the basis of the definition of term “consideration” as per Section 2 (d) of the Contract Act, 1962. However in the Finance Act, 1994, explanation to section 67, defines the term “consideration”. In our view the manner in which the term consideration has been defined by the Finance Act, 1994 is not in pari materia with the definition as contained in Contract Act. The impugned order which relies solely on the definition as contained in the Contract Act, for holding that this amount is “consideration”, for the services provided or to be provided cannot be upheld in view of the specific definition contained in Finance act, 1994. Commissioner needs to record a finding to the effect that this amount is an consideration as per the Finance Act, 1994 by referring to definition contained in therein.
Appeal is partly allowed and the matter is remanded back to the original authority.
-
2022 (12) TMI 1109 - CESTAT MUMBAI
Classification of services - Business Support Services or not - business of exhibition of cinematographic films - sharing of Revenue - distinct entities rendering service in de-mutualized capacity on principal-to-principal basis - HELD THAT:- The issue in dispute stands resolved by the decision of the Tribunal in M/S. RELIANCE MEDIAWORKS LIMITED VERSUS COMMISSIONER, SERVICE TAX-VI, MUMBAI [2022 (4) TMI 253 - CESTAT MUMBAI] where it was held that The agreement in the present appeal is almost the same as the agreement in other appeals that have been decided including that in INOX LEISURE LTD. VERSUS COMMISSIONER OF SERVICE TAX, HYDERABAD [2021 (10) TMI 893 - CESTAT HYDERABAD], where under similar situation, it was held that no service tax can be levied on the appellant under BSS.
Appeal allowed.
-
2022 (12) TMI 1053 - CESTAT AHMEDABAD
Levy of Service tax - Construction of Complex Service - exemption by Government of India vide Notification No. 28/2010 dtd. 22.06.2010 - HELD THAT:- The complex which is constructed with an intention for personaluse as residence by a person who is directly engaging any other person for designing/planning of layout and the construction of such complexes out of the ambit of such construction and thus from taxability.
We draw the support from the case of COMMISSIONER OF CENTRAL EXCISE, AURANGABAD VERSUS MALL ENTERPRISES [2015 (11) TMI 333 - CESTAT MUMBAI] wherein it was held that not only residential complex is designed or laid out by another person are excluded from the definition but also the ones intended for personaluse of such person i.e. the owner of the complex - In another case titled as NITHESH ESTATES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS BANGALORE-II [2015 (11) TMI 219 - CESTAT BANGALORE] wherein it was held that the construction of residential complex for ITC (in that case) intended to provide accommodation built for own employees, activity was covered by definition of personaluse in Explanation to Section 65(91A) of Finance Act, 1994. Hence, the assessee‟s activity falls under exclusion of that Section and as such is excluded from levy of Service Tax.
In the present case, the quarters/residential complexes were got constructed by the AMC and AUDA for urban poor people for their residential use, the same amounts to “personal use‟. The confirmation of demand qua these services by the Commissioner is therefore not sustainable.
In the case in hand in as much as in both the cases the construction service was provided to Jawaharlal Nehru National Urban Renewal Mission and Rajiv Awaas Yojana. It was held that the service tax is not leviable to such project. Hence, the ratio of the above judgment is directly applicable in the present case.
Appeal allowed.
-
2022 (12) TMI 1052 - CESTAT CHENNAI
Denial of CENVAT Credit - Manpower Agency service - services of transport of goods by transporters - period from April 2014 to August 2014 and September 2014 - reverse charge mechanism - HELD THAT:- There was an issue with the availing of the CENVAT Credit in question, which requires to be ironed out after verifying the records; that there was also an issue as regards the verification of ST-3 returns for the subsequent period and not the one for the relevant period in dispute, from which the issue was flagged by the Audit Commissionerate and for the same, a speaking order is required, for which reason the matter has to be restored to the file of the Adjudicating Authority.
The impugned order, to the extent it is appealed before this forum, is set aside and the matter is restored to the file of the Adjudicating Authority, who shall afford reasonable opportunity to the appellant and then pass a de novo order after verifying the relevant documents that may be furnished by the appellant, if so advised. The appellant shall cooperate with the Adjudicating Authority without seeking unnecessary adjournments. All the contentions in this regard are left open.
Appeal allowed by way of remand.
-
2022 (12) TMI 1051 - CESTAT AHMEDABAD
Time Limitation - demand of service tax raised against the appellant M/s. Gujarat Engineering Research - HELD THAT:- In the present case the demand of service tax pertains to the period March/July 2007, 2003 to May 2007 and the show cause notice was issued on 11.01.2009. Therefore, the entire demand is under the extended period of limitation. This Tribunal, considering the status of the appellant and facts of the case which are absolutely identical to the facts of present case, vide order No. A/10270-10271/2019 dated 03.01.2019 [2019 (2) TMI 1303 - CESTAT AHMEDABAD] held that the demand is time-barred and appeal was allowed on limitation.
The demand raised in the present case for extended period is not maintainable on the ground of limitation itself - Appeal allowed.
-
2022 (12) TMI 1050 - CESTAT AHMEDABAD
Seeking remand of the case - Service tax was paid in excess - excess amount may be adjusted against the interest liability - invocation of Section 73(3) of FA - HELD THAT:- There is no dispute that the appellant have paid the Service Tax in excess as claimed by them, and it was submitted that the excess amount shall be taken care of liability of interest. If this be so the Commissioner(Appeals) should have considered this issue. However, the Commissioner (Appeals) has not given any finding on the claim of the appellant to settle the case under Section 73(3) of Finance Act, 1994.
The matter needs to be reconsidered in the light of Section 73(3) of Finance Act, 1994 - appeal allowed by way of remand.
-
2022 (12) TMI 975 - CESTAT AHMEDABAD
Levy of service tax - various charges such as Computer to Computer Linkage charges, Commission on Public Issue and Inter Settlement charges - appellant acting as Stock Broking Company - HELD THAT:- In the light of decision of this Tribunal in M/S ANAGRAM STOCK BROKING LTD VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD [2018 (10) TMI 641 - CESTAT AHMEDABAD] wherein the present appellant is also one of the appellants, has decided the same issue in their favour - it was held in the case that the allegation of the department that the demat charges collected by the brokers are banking and financial service, hence taxable, also devoid of merit in as much such charges are collected by the Appellant and paid to the depository participants viz. CDSL/NSDL who are authorised to levy such charges under the Depositories Act, 1996.
The issue in hand is no longer res-integra - Appeal allowed.
-
2022 (12) TMI 912 - KARNATAKA HIGH COURT
Violation of principles of natural justice - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking to consider the Declaration filed by the Petitioner in Form SVLDRS-1 - It is the grievance of the petitioner that despite the facts and circumstances, respondent No.4 proceeded to issue the impugned communication dated 11.03.2020 rejecting the application filed by the petitioner, who is before this Court by way of the present petition - HELD THAT:- A perusal of the impugned order / communication at Annexure-A dated 11.03.2020 will clearly indicate that the same is a non-speaking, cryptic, laconic and unreasoned order which has been passed without any application of mind and without considering the detailed submissions of the petitioner nor the relevant provisions of the SVLDR Scheme or the Circulars and judgments relied upon by the petitioner and consequently, the impugned order / communication being violative of principles of natural justice, the same deserves to be set aside and the matter be remitted back to the concerned respondent for reconsideration afresh in accordance with law.
The matter is remitted back to the concerned respondents for reconsideration afresh of the claim of the petitioner bearing in mind the observations made in this order as well as the material on record including the Circulars dated 29.10.2019 and 06.10.2022 - Petition allowed by way of remand.
-
2022 (12) TMI 911 - CESTAT NEW DELHI
SVLDR Scheme - pre-deposit could not be verified as per records available and the amount has also not been mentioned in the show cause notice for appropriation - HELD THAT:- There is no dispute as regards payment of this amount in question. Further, it is evident from the record that this amount remained unadjusted due to fault of the Department as well as the Designated Committee under the Sabka Vishwas Scheme, who have refused the adjustment of the amount of pre-deposit, stating that the amount is not verifiable.
This amount remained as the Revenue deposit with the Department and was never adjusted. Further, this amount is not a part of the admitted tax - the Adjudicating Authority is directed to grant refund of Rs.29,36,382/- within a period of 30 days from the date of receipt of this order along with interest @12% per annum from end of three months from the date of filing of the application for refund, till the date of grant of refund.
Appeal allowed.
-
2022 (12) TMI 910 - CESTAT MUMBAI
Maintainability of appeal - noncompliance with the requirement of section 35F of Central Excise Act, 1944 - HELD THAT:- The appeal filed before the Commissioner (Appeals) should be entertained for a decision on merits. Since he has not discussed the merits of the case and simply dismissed the appeal for noncompliance with the requirement of Section 35F of Central Excise Act, 1944, we are of the opinion that the matter should go back to Commissioner (Appeals) for a decision on merits insofar as the appeal is concerned.
The appeal is allowed in favour of the appellant by way of remand to the Commissioner (Appeals) for deciding the appeal afresh on the basis of available records and the submissions to be made by the appellant during the course of hearing of the appeal.
-
2022 (12) TMI 907 - CESTAT CHENNAI
Refund of service tax - contention of the appellant is that the tax having been paid under mistake, the period of limitation as envisaged in Section 11B will not apply - Principles of unjust enrichment - HELD THAT:- Interestingly, it has to be noted that the adjudicating authority as per OIO No.34/2015 dt. 30.09.2015 has held that tax has indeed been paid by mistake by the appellant. The adjudicating authority has even sanctioned the refund. However, the amount was ordered to be credited to the Consumer Welfare Fund on the issue of unjust enrichment - it can be seen that there is an observation by the original authority in both the orders that the tax has been paid by mistake. However, the Commissioner (Appeals) in para-7 has summarily held that refund claim is hit by limitation without discussing the aspect whether the tax amount has been paid by mistake.
In the present case, it has to be noted that as per Rule 2A of Service Tax (Determination of Value) Rules, 2006, the extract of which has already been reproduced; in the case of works contracts which is in the nature of original works, the service provider has to pay only on 40% of the total amount charged for the works contract. The levy of service tax on such works is 40% of the total amount and has to be paid by the service provider only. The service provider had correctly issued invoices collecting service tax @ 40% on the consideration received by them.
It is the case of the appellant that as the invoice showed only collection of tax on 40% of the consideration paid by them, they were under the impression that they have to pay service tax for the balance 60% of the consideration. Thus they paid tax on the balance 60% as their own liability. This has been clearly discussed by the original authority in para 6.1 of the order No.33/2015 dt. 31.08.2015. It is clearly brought out from evidence that appellant has paid the tax by mistake. Moreover, the original authority vide OIO No.34/2015 dt. 30.09.2015 has held that limitation will not apply as the tax has been paid by mistake - the rejection of refund claim on the ground of limitation is not sustainable.
The second ground of rejection of refund is that the amount paid is hit by the doctrine of unjust enrichment - HELD THAT:- Section 11B of Central Excise Act, 1944 deals with claim for refund of duty and interest, if any, paid on such duty. Section 83 of the Finance Act, 1994 makes certain provisions of Central Excise Act, 1944 applicable to service tax also. As per Section 83, the provisions dealing with refund (Section 11B, 11BB, 11C, 12,12A, 12B, 12C, 12D) are applicable to service tax. As per sub-section (1) of Section 11B any person who has paid the duty / tax can make an application for refund, along with documents to show that the incidence of such duty/interest/tax paid by him or collected from him has not been passed on to any other person.
In the instant case, the disputed tax has been paid by the service recipient. He has paid it directly and has neither collected the amount nor issued any invoice. Further, when the amount of tax is held to be paid under a mistake, it cannot be said that the tax was paid under the Finance Act, 1994. It was an amount which was paid without having a liability to pay. There was no authority of law to collect such amount from the appellant.
In the present case, the appellant has furnished the Chartered Accountant certificate. In page 132 and 133 of appeal paper book the appellant has enclosed the copy of this certificate. The Ld. A.R has relied upon the decision in the case of Rajasthan Spinning Mills Ltd. (supra) to contend that such certificate cannot be solely relied to establish that the incidence of duty has not been passed on. In the present case, there is no levy of tax on the balance 60% of the consideration. There is no invoice issued by appellant mentioning the amount as tax and they have paid from their own pocket.
In the case on hand, the department does not dispute the veracity of the certificate, but merely denies the refund stating that appellant has to produce further documents. The Chartered Accountant who has issued the certificate has stated that he has examined the statutory records of the assessee-appellant. Taking into consideration, that the amount was paid by mistake, an no invoice was issued, that rejecting the said certificate in toto so as to hold that the incidence of duty has been passed on cannot be legally sustained. In the result, the appellant has succeeded in establishing that the amount is not hit by the doctrine of unjust enrichment. The appellant is eligible for refund.
The appeals are allowed.
-
2022 (12) TMI 824 - MADRAS HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - declaration in SVLDRS-1 made in time - denial of benefit of scheme for not having paid the amount mentioned in SVLDRS-3 dated 13.1.2020 within 30 days stipulated by the Designated Committee in SVLDRS-3 dated 13.1.2020 - correct declaration of the tax payable made or not - HELD THAT:- The petitioner as a declarant was expected to pay both the tax and the interest thereon. The only concession which the petitioner would have got was against the imposition of penalty if Form SVLDRS-1 filed by the petitioner was accepted - In the case of “voluntary disclosure”, the Designated Committee is not expected to verify the disclosure in the declaration made in Form SVLDRS-1. The Designated Committee, merely relies on the declaration in Form SVLDRS-1.
In the declaration, the petitioner has stated that the declaration was being made under the “voluntarily category” - the declaration was filed in time as is evident from a reading of Rule 3 of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019. However, as per Section 125(1)(e), a person who has been subjected to an enquiry of investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June 2019, shall not be entitled to file a declaration under the scheme.
The petitioner however failed to pay even the amount specified in Form SVLDRS-3 in time. The petitioner appears to have made belated attempt to pay the amount on 16.3.2020. This was long after the period specified in Form SVLDRS-3 had expired. The amount which was initially debited from the petitioners account was however later recredited back. Thereafter, the petitioner did not take steps to make the payment. Meanwhile, lockdown was imposed due to outbreak of COVID 19 pandemic.
Demand alongwith interest and penalty upheld - there is no merits in the present writ petition - petition dismissed.
-
2022 (12) TMI 723 - DELHI HIGH COURT
Refund of unutilized input tax credit - export of services - intermediary services or not - judicial discipline - period of October, 2015 to December, 2016 and January, 2017 to June, 2017 - HELD THAT:- A plain reading of the impugned order indicates that the learned Assistant Commissioner rejected the petitioner’s claim by questioning the decision of the learned Commissioner (Appeals) to allow the petitioner’s appeal and reject the Revenue’s appeals. The learned Assistant Commissioner held that the learned Commissioner (Appeals) has erred in following the decision of this Court in VERIZON COMMUNICATION INDIA PVT. LTD. VERSUS ASSISTANT COMMISSIONER, SERVICE TAX, DELHI III, DIVISION-XIV & ANR. [2017 (9) TMI 632 - DELHI HIGH COURT], on the ground that the Special Leave Petition against the said decision is pending before the Supreme Court.
The impugned order has been passed in complete disregard of the judicial discipline. It is, ex facie, apparent that the learned Assistant Commissioner has attempted to overreach the orders passed by the superior authority - Since the respondent was seeking to defend the impugned order, this Court had called upon Mr. Raghupathy Ramachandran, Senior Standing Counsel, Central Board of Indirect Taxes and Customs (CBIC), to also file written submissions even though he was not appearing in the present petition. He has fairly submitted that the impugned order, which proceeds on the basis that the petitioner is a provider of intermediary services, is incorrect and it is not open for the Revenue to take this stand. The Revenue would necessarily have to wait for the outcome of the appeals preferred by the learned CESTAT (which have since been dismissed as well).
The learned counsel appearing for the respondent fairly states that the impugned order be set aside - Petition allowed.
-
2022 (12) TMI 722 - BOMBAY HIGH COURT
CENVAT Credit - input services - Restaurant services - Accommodation services - Internet Cafe services - Cab Operations services - Health Club and Fitness Centre - Beauty Parlor - Dry Cleaning - Outdoor Catering - cryptic and non-speaking order - violation of principles of natural justice - HELD THAT:- The impugned order nowhere discusses about the reply and the document furnished by the Petitioner to the show-cause notice. Respondent No.2 proceeded on the premise that the joint venture exists and earlier show-cause notice was issued to the Petitioner along with the joint venture and therefore, the demand made by the department is justified.
There was no service provider or service receiver contract between the parties justifying the levy of service tax. The impugned order further failed to take into account the order passed by the Appellate Tribunal dated 5 March 2019 (Exh.I) wherein a demand of the department for the earlier period from October 2007 to March 2013 was negated. It therefore clearly revealed that there is non-application of mind while passing the impugned order. Similarly, it is clear from the reasonings in the impugned order that Respondent No.2 failed to take into account reply and the document produced by the Petitioner to the show-cause notice, which now compelled us to quash and set aside the impugned order and to remand the matter for fresh consideration by taking into account the reply and the documents to the show-cause notice as well as the orders passed by the Appellate Tribunal with regard to the earlier show-cause notices.
The impugned order is set aside by remanding it to the said authority to decide it afresh by considering reply filed by the Petitioner to the show-cause notice, documents attached to it and also by giving personal hearing - petition disposed off.
-
2022 (12) TMI 661 - CESTAT CHENNAI
Claim of refund of service tax - work contract services - Section 102 of the Finance Act, 1994 which exempted services provided to Government for the period 01.04.2015 to 29.02.2016. - HELD THAT:- Undisputedly, the contract has been entered and signed on 19.03.2015. A contract comes into effect and binds the parties only when it is accepted. As per Section 2(b) of Indian Contract Act, 1872, acceptance is defined as “when the person to whom the proposal has been made signifies his assent thereto, the offer is accepted”. Thus acceptance refers to the act of one party agreeing to the terms of proposed by another party. Merely receiving a tender or opening a tender cannot be considered as acceptance. There should be communication or intimation of the acceptance.
As per Section 102, the service provider is eligible for exemption of service tax only if contract is entered prior to 01.03.2015. The letter dt. 08.05.2015 reproduced above explaining the applicability of exemption from service tax issued by the Head office of the recipient (Contract Management) cannot override the provisions of law.
Since the contract has been entered on 19.03.2015, the appellant is not eligible for exemption of service tax.
Decided against the assessee.
-
2022 (12) TMI 660 - CESTAT NEW DELHI
Place of supply - intermediary service - Refund of Cenvat Credit - export of services - Rejection of refund claim on the ground that appellant had acted as an ‘intermediary’ between the service provider and the service recipient - rule 9 of the Place of Provision of Services Rule 2012 - HELD THAT:- The Commissioner (Appeals) observed that since the appellant had arranged for a provision of service between Blackberry Singapore and its customers without making any alteration it would be acting as an intermediary under rule 9(c) of the 2012 Rules and, therefore, the place of provision of service shall be the location of the service provider i.e. in India. According to the appellant, the place of provision of services shall be the location of the recipient of the service as provided under rule 3 of the 2012 Rules
In the present case, what transpires from the Agreement is that the appellant, which is a service provider in India, performs various promotion and marketing services more particularly set out in Schedule A of the Agreement or as requested by Blackberry Singapore from time to time.
The terms of the Agreement also per se do not create any relationship of principal and agent or employer and employee. An agent is a person employed to do any act for another or to represent another in dealing with third persons. The persons for whom such act is done, or who is so represented, is the principal. A broker is a middleman or an agent who, for a commission on the value of the transaction, negotiates for others the purchase or sale of stocks, bonds, commodities, or a property. These two situations do not arise in the present case.
An intermediary is a person who arranges or facilitates provision of the main service between two or more persons. The appellant is not involved in the arrangement or facilitation of the supply of service. The service provided by the appellant qualify for export since it is providing services to Blackberry Singapore, which is outside India and is receiving convertible foreign exchange for such services.
The refund claimed by the appellant under rule 5 of the Credit Rules could not have been rejected by the Commissioner (Appeals).
Decided in favor of assessee.
-
2022 (12) TMI 659 - CESTAT KOLKATA
Refund / Reabte - specified services received and used by them for export of Iron Ore Fines - Notification No.41/2007-ST as amended - Refund rejected on the ground that, None of the Challan/Bill/Lorry Receipt submitted by the claimant contains the reference of the export invoice as stipulated in the Notification. - HELD THAT:- In para 6.2 of this Circular, C.B.E. & C. has clarified that only a broad co-relation of input services and Service Tax paid is required to be made with respect to exports. This Circular was relied upon by the appellant before the Adjudicating Authority, as mentioned in submissions of the assessee. At the same time Ld. Authorized Representative appearing on behalf of the respondent Revenue could not produce the required documents before the Bench to ascertain as to what extent co-relation can be made and whether any liberal view can be taken in these proceedings in view of C.B.E. & C. Circular No. 120/01/2010-S.T. dated 19-1-2010.
So far as admissibility of Service tax paid on GTA Services is concerned, it is observed that similar refunds were allowed by the Tribunal in the case of Jumbo Mining Ltd. v. CCE Hyderabad [2012 (7) TMI 739 - CESTAT, BANGALORE]
Refund allowed.
-
2022 (12) TMI 658 - CESTAT NEW DELHI
Refund of service tax - Period of limitation - Invoice Raised in service tax paid prior to introduction of GST - Service was not complete and GST was paid after completion of services post intorduction of GST w.e.f. 1.7.2017 - HELD THAT:- In the present case the date of approval of invoice was agreed to be considered as date of invoice. The said approval was awaited till 01.07.2017 when CGST Act comes into effect. It is, hence, clear that the service was not completed till the new law was given effect to. In fact, the period of one year, even if, calculated from the date of the impugned unapproved invoice had not expired by 1st July, 2017 i.e. till coming into effect of GST Act.
Section 11B of erstwhile Central Excise Act has wrongly been invoked by the Commissioner (Appeals). He is observed to have miserably failed to observe the transition provisions and the mandate of the new CGST law that the entitlement of the assessee have mandatorily to be returned/refunded to the assessee irrespective of any limitation of time, though in cash.
Following the decision in the case of Punjab National Bank Vs. Commissioner of CGST and Central Excise, Jaipur [2022 (5) TMI 652 - CESTAT NEW DELHI], refund allowed.
........
|
