Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

GENERAL MANAGER - FOOD CORPORATION OF INDIA Versus UNION OF INDIA AND 2

2016 (6) TMI 878 - GUJARAT HIGH COURT

Recovery of service tax from the FCI where service provider failed to deposit the amount with the service tax department - Deposit of amount u/s 73A collected in the name of Service Tax - Can the Central Government seek direct recovery from FCI with the aid of the section 87 of the Finance Act of 1994? - Case of the petitioner is that cargo service relating to agriculture produce provided by Kailash Enterprise was exempt from payment of service tax, despite which, under mistaken belief, FCI was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

due or may become due to such defaulting person. The fundamental question is when the Government of India wrote letters to the FCI in the year 2015 and onwards, did FCI was there any due of Kailash Enterprise from FCI ? The answer is obviously in the negative. Section 87 of the Finance Act, 1997 was therefore wrongly invoked. - Decided in favor of petitioner. - SPECIAL CIVIL APPLICATION NO. 3051 of 2016 - Dated:- 16-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR ANAN .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f ₹ 5.37 crores (rounded off) from the petitioner. 2. Brief facts are as under. 3. The petitioner as Food Corporation engages agencies for handling food cargo for transportation and other related activities. FCI had engaged one Kailash Enterprise for handling of wheat cargo during the year 200-607. Case of the petitioner is that such service provided by Kailash Enterprise was exempt from payment of service tax, despite which, under mistaken belief, FCI was made to pay service tax of ₹ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ation No.10/2002 dated 01.08.2002 service provided in relation to agricultural produce was exempt from payment of service tax. However, referring to section 73A of the Finance Act, 1994 he held that now that Kailash Enterprise had recovered the tax from FCI, it must deposit with the service tax authorities. Relevant portion of the order of the Commissioner reads as under: (b) SERVICE PROVIDED TO FCI (i) The Notices has contended that the service provided to FCI were in respect of imported wheat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

icultural produce as is intended for cold storage. I have gone through notification, No.10/2002, ST dated 01.08.2002 and I find that the phrase agricultural produce or goods intended for could storage was meant to cover two categories of items. (I) agricultural Produce (ii) goods intended for cold storage Therefore, I find the demand of Service Tax is not sustainable on the said cargo in view of the exemption notification No.10/2002. ST dated 01.08.2002. However, the fact that an amount of ͅ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and Section 73B of the Act. (ii) Out of the said amount of ₹ 7,69,65,589/- only ₹ 5,36,90,043/- pertains to FCI which is ordered to be recovered from M/s Kailash under Section 73A of the Finance Act, 1994, Rest of the amount of ₹ 2,32,75,546/- pertains to M/s GPPL, demand for which is already confirmed under Section 73(2) of the said Act as per para 6(a) above. (iii) Regarding issue of two credit notes said to have been issued by M/s Kailash to FCI, and encashment of Bank Guar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on 73A of the Act is not extinguished by subsequent suo moto adjustments or refunds of any amount by M/s Kailash to FCI. In view of the above, I hold that the amount of ₹ 5,36,90,043/- eligible. 7. M/s. Kailash are liable for appropriate penalty under Section 77 of the Finance Act, 1994 for having failed to file the Service Tax returns failed to declare that correct amount of taxable value received by them and failed to declare the correct amount of taxable value received by them and faile .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

09. I, therefore, order for the recovery of the amount payable for delay in furnishing return at the rate specified in Rule 7C of Service Tax Rules, 1994. 4. It appears that between FCI and Kailash Enterprise there were multiple disputes of deficiency in service provided by the service provider. The FCI by the year 2011-12 had also realized that the service tax collected by Kailash Enterprise was not deposited in the government revenue. Inter alia, on such grounds, some time in the year 2011, FC .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ng of wheat cargo. This much has been held by the Commissioner in his order dated 31.01.2013. He negated the Revenue's contention that the exemption applied only to agriculture produce which were meant for cold storage and interpreted the exemption as to include both items i.e. agriculture produce and produce meant for cold storage separately. We therefore, have to proceed on such basis. What therefore, emerges is that though FCI was not required to pay service tax on the cargo handling serv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1 Inserted (w.e.f. 18.04.2006) by s. 68 of the Finance Act, 2006 (21 of 2006) (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made there under from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rson liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (4) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under subsection (3), determine the amount due from such person, not being in excess of the amount specified in the notice, and thereupon such person shall pay the amount so determine .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion 12C of the Central Excise Act, 1944 or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount. 7. Under sub section (1) of Section 73A, any person liable to pay service tax and who has collec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version