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Concord India Private Ltd. Versus Commissioner of Service Tax

2018 (2) TMI 328 - CESTAT BANGALORE

Refund claim - Due to ignorance of law, the appellant had paid service tax on Inward Legal Services rendered by the advocates for the period March 2012 to March 2013 under reverse charge mechanism - N/N. 25/2012-ST dated 20.06.2012 - denial on the ground of time limitation. - Held that: - the findings of the Commissioner (Appeals) that the claim is barred by limitation is not sustainable in law as the lower authority has already held that the refund claim is not barred by limitation. - T .....

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iness entities with less than turnover of ₹ 10 lakhs in respect of service tax payable under reverse charge mechanism. - Matter remanded for verification of documents - appeal allowed by way of remand. - ST/21744/2016-SM - Final Order No. 20046 / 2018 - Dated:- 11-1-2018 - Hon'ble Shri S.S Garg, Judicial Member Shri S. Sivakumar, Advocate For the Appellant Shri Parasivamurthy, Deputy Commissioner (AR) For the Respondent ORDER Per : S. S. Garg The present appeal is directed against .....

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₹ 8,47,972/- (Rupees Eight Lakhs Forty Seven Thousand Nine Hundred and Seventy Two only) on the grounds that during March 2012 to March 2013, they have paid service tax under reverse charge mechanism specified vide Notification No. 30/2012-ST dated 20.06.2012, by a mistaken understanding, when they were actually under the threshold limit of turnover during the financial years 2011-2012 and 2012-2013; i.e. they were actually exempted from payment of service tax in terms of Sl. No. 6(b)(iii .....

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ication No. 30/2012 ST dated June 20, 2012. After following the due process, the adjudicating authority dropped the rejection of refund claim on account of limitation prescribed under Section 11B by relying upon the decision of the Hon ble High Court of Karnataka in CCE, Bangalore Vs. KVR Construction reported in 2010-TIOL-980-HC-KAR-ST. However, the adjudicating authority rejected the refund claim on the ground that the appellant had not submitted the original payment challan or ST-3 Returns or .....

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able in law as the same is contrary to the provisions of the Act as well as binding judicial precedent. He further submitted that the original authority found that the refund is not hit by limitation in terms of Section 11B of the Central Excise Act and the Revenue did not file the appeal against this finding of the original authority but the Commissioner (Appeals) on his own has held that the refund claim is also hit by limitation. He further submitted that the Commissioner should not have deci .....

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(2) of the Finance Act. He also submitted that the service tax on services rendered by advocates and received by small entities with turnover of less than ₹ 10 lakhs is exempted under Sl. No. 6 of the Mega Exemption Notification No. 25/2012 ST dated June 20, 2012. He also submitted that the appellant has already submitted a CA certificate and has also submitted their financial statement for the relevant period confirming that their turnover was nil during the relevant period and this fact .....

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h exempts service tax levy on advocate services received by business entities with turnover of less than ₹ 10 lakhs. 4. On the other hand the learned AR reiterated the findings of the impugned order. 5. After considering the submissions of both the parties and perusal of material on record, I find that the findings of the Commissioner (Appeals) that the claim is barred by limitation is not sustainable in law as the lower authority has already held that the refund claim is not barred by lim .....

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Section 66B in terms of Exemption Notification 25/2012, the question of invoking Notification No. 30/2012 issued under Section 68(2) dealing with reverse charge mechanism does not arise at all. This issue has been settled by the Bombay High Court in the case of P.C. Joshi Vs. Union of India 2015 (37) S.T.R. 6 (Bom.) wherein in para 61 and 62, the High Court has categorically observed that Notification No. 30/2012 does not override Notification No. 25/2012 and that the exemption from levy of serv .....

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d Notification supersedes the earlier notification, dated 17th March, 2012. Now, services provided by an Arbitral Tribunal to any person other than a business entity or a business entity with a turn over up to ₹ 10 lakhs in the preceding financial year are exempted from the whole of the Service Tax leviable thereon under Section 66B of the Finance Act. Similarly, services provided by an individual as an advocate or a partnership firm of advocates by way of legal services to an advocate or .....

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ership firm of advocates by way of legal services to any person other than a business entity or a business entity with a turnover up to ₹ 10 lakhs in the preceding financial year are exempt from the whole of the Service Tax leviable thereon under Section 66B of the Finance Act. Therefore, the small businessman, petty traders and persons carrying on business in individual capacity would be able to afford the services of individual advocates or a partnership firm of advocates. In such circum .....

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ice Tax for the purpose of Section 68(2). Now, the taxable services provided or agreed to be provided by an Arbitral Tribunal or an individual advocate or a firm of advocates by way of support services to any business entity located in the taxable territory are brought within the net and stand covered by the Finance Act. However, this Notification does not touch, far from superseding the Mega Notification No. 25/2012 of the same date, namely, 20th June, 2012. All that it states is that the taxab .....

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ities is the trend of the day. Even an Arbitral Tribunal is not placed in the same position as it was and in the initial stages when Arbitration Act, 1940 was in force. The position and role of a arbitrator was very succinctly discussed in a earlier judgment of the Hon ble Supreme Court in Food Corporation of India v. Joginderpal Mohinderpal and Anr. reported in AIR 1989 SC 1263. Hon ble Mr. Justice Sabyasachi Mukherji as my Lord the Chief Justice of India, then was and known for his erudition a .....

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out an umpire and an award enforceable by the sovereign power were generally unknown to ancient India. Hindus recognised decisions of Panchayats or bodies consisting of wealthy, influential and elderly men of the community and entrusted them with the power of management of their religious and social functions. The sanction against disobedience to their decision was excommunication, or ostracism and exclusion from the religions and social functions of the community. An agreement to abide by the d .....

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tions were touching arbitration. Bachawat gives description of the evolution of the Arbitration Act, 1940. Therefore, arbitration as a mode for settlement of disputes between the parties, has a tradition in India. It has a social purpose to fulfil today. It has a great urgency today when there has been an explosion of litigations in the Courts of law established by the sovereign power. New rights created, or awareness of these rights, the erosion of faith in the intrinsic sense of fairness of me .....

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