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2016 (2) TMI 173 - MADRAS HIGH COURT

2016 (2) TMI 173 - MADRAS HIGH COURT - 2016 (42) S.T.R. 665 (Mad.) , 2016 (334) E.L.T. 621 (Mad.) - Import of services - receipt of service charges relating to the export proceeds - SEZ unit - learned single Judge had dismissed the Writ Petitions filed by the appellants making it clear that it would be open to the appellants to avail the alternative remedies available to them, under the relevant provisions of the Finance Act. As such, we are of the considered view that the appellants have not sh .....

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W.P.Nos.12716 and 12717 of 2015. 2. The Writ Petition, in W.P.No.12716 of 2015, had been filed seeking to issue a Writ of Certiorari to call for the records pertaining to the impugned proceedings of the respondent, dated 26.12.2014, and quash the same. 3. The Writ Petition, in W.P.No.12717 of 2015, had been filed seeking to issue a Writ of Certiorari to call for the records pertaining to the impugned proceedings of the respondent, dated 26.12.2014, and quash the same. 4. The appellants are manu .....

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pt of export proceeds treating the transaction as an independent transaction, amenable to service tax, based on Reverse Charge Mechanism. 5. The appellants had submitted their detailed objections, dated 10.12.2014, stating that the proposal made by the respondent is without the authority of law. However, without considering the facts of the case, the respondent had levied service tax on the export proceeds, received from Amsco Finance, and also on the service charges relating to the export proce .....

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e appealable under Section 85 of the Finance Act. Therefore, I am of the view that these writ petitions filed challenging the impugned orders, without availing an alternative remedy by way of filing an appeal before the Appellate Tribunal, cannot be maintained and the writ petitions are liable to be dismissed granting liberty to the petitioners to file an appeal within a period of two weeks from the date of receipt of a copy of this order. Accordingly, giving such liberty to the petitioners, the .....

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ts. The learned Judge ought not to have dismissed the Writ Petitions, due to the availability of an alternative remedy provided under the relevant provisions of the Finance Act, in view of the decision of the Supreme Court, reported in H.P. V. Gujarat Ambuja Cement Ltd., (2005) 142 STC 1 (SC), and in view of the various decisions rendered by this court. 7. The learned counsel had further submitted that the learned Judge had failed to see that the respondent had no authority to levy service tax o .....

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of goods is defined. The export by the appellants to a foreign buyer is nothing but a sale and the receipt of the money is the consideration for the goods involved in the transfer. Therefore, the respondent cannot divide the transaction of export and receipt of consideration as two separate incidents and treat the receipt process as an independent service and levy service tax on the same, under Section 66A of the Finance Act, contrary to the export policy of the Central government. 9. It has al .....

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that a person carrying on business through a branch or agency, in any country, shall be treated as having a business establishment in that country. Further, the export activity of the appellants is covered under Section 65B(44)(a)(ii), which defines the term "service". 10. It had also been stated that the learned single Judge ought to have noted that the respondent had failed to consider Rule 4(a) of the Rules which deals with credit. If the appellants are treated as service receivers, .....

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without the authority of law. The levy against the appellants would amount to double taxation. The learned single Judge had failed to consider the Notification No.29/2004-ST, dated 22.9.2004, as amended by notification No.19/2006, dated 25.4.2006, relating to invoice discounts. In such circumstances, the common order passed by the learned single Judge, dated 29.4.2015, dismissing the Writ Petitions filed by the appellants, stating that the appellants ought to have availed the alternative remedi .....

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