Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (5) TMI 599

ur Operator Services (Chartered Bus Booking) (b) Tour Operator Service (Point to Point Bus Service) & (c) Advertisement Services. Tour Operator Service - Point to Point Bus Service - HELD THAT:- Reliance placed in the case of M/S HANS TRAVELS VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2015 (10) TMI 458 - CESTAT NEW DELHI] where it was held that the impugned service rendered by the appellant using a contract carriage would fall under the category of tour operator service - demand upheld. Tour Operator Services - Chartered Bus Booking - Notification No 20/2009-ST dated 07.07.2009 ,as amended by Notification No GSR 622(E) Dated 31.08.2009 - HELD THAT:- In respect of the Services provided in category of Chartered Bus Booking, we find that these services fall within the exclusion category in the said notification. No other exemption has been pointed out which exempts such services. By putting these services under exclusion category in the Notification it is clear that these category of taxable services are not being exempted - demand do not sustain. Advertisement Services - Scope of SCN - HELD THAT:- Commissioner has considered the issue by considering the demand under .....

X X X X X X X

Full Text of the Document

X X X X X X X

2002-03 to 2006-07 Refund of 3,08,86,806 Not applicable. ST/CO/112/2012 1.2 By the order dated 04.01.2012, Commissioner Service Tax, Mumbai (Appeal No ST/174/2012) held as follows: ORDER i. I hereby confirm the demand amount of ₹ 4,77,23,920/- (Rupees Four Crore Seventy Seven Lakhs Twenty Three Thousand Nine Hundred and Twenty Only) under Section73(2) of the Finance Act, 1994. ii. Recover of interest at the appropriate rate applicable during the relevant period of time, on the amount confirmed at i) above, from the date it became due till the date of payment, is hereby confirmed under Section75 of the Finance Act, 1994. iii. Penalty of ₹ 200/- per day or 2% of tax payable, per month whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax, is imposed under Section 76 of the Finance Act, 1994, subject to the maximum, specified in Section76 of the Finance Act, 1994 as it existed at the material time, for failure to pay appropriate service tax. iv. For failure to obtain Registration for Advertisement Service as required under Section69 of the Finance Act, 1994 read with Rule 4 of the Servic .....

X X X X X X X

Full Text of the Document

X X X X X X X

Section 77 of the Chapter V of the Finance Act, 1994. vi. A penalty of ₹ 7,94,292/- (Rupees Seven Lakhs Ninety Four Thousand Two Hundred and Ninety Two Only) i.e. equal to the amount of Service Tax short paid by the assessee, under Section78 of the Finance Act, 1994. Further if the assessee pays the demand amount confirmed as per i) above along with the interest payable thereon as per ii) above within thirty days from the date of communication of the Order, the amount of penalty liable to be paid by the assessee shall be 25% of the demand amount confirmed at i) above, provided further that the reduced penalty is also paid along with the confirmed amount and interest as mentioned above. 1.4 By the order in appeal dated 22.03.2012, Commissioner (Appeals) IV Central Excise Mumbai Zone - I, (Appeal No ST/466/2012) upheld the order in original dated 22.05.2009 of the Assistant Commissioner Service Tax Division IV Mumbai rejecting the refund claims filed by the appellant. By his order Assistant Commissioner has held as follows: 7. In light of the findings as above, I reject all the five refund applications filed by M/s Neeta Tours and Travels, on 17.10.2008 as detailed below, unde .....

X X X X X X X

Full Text of the Document

X X X X X X X

)(a) of the Finance Act, 1994. 2.6 They paid the service tax amounting to ₹ 2,86,94,534/- (Rupees Two Crore Eighty Six Lakhs Ninety Four Thousand Five Hundred Thirty Four Thousand Only) only for the period 2005-06 and 2006-07 along with interest due amounting to ₹ 22,02,791/- (Rupees Twenty Two Lakhs Two Thousand Seven Hundred and Ninety One Only). 2.7 For the period 01.04.2007 onwards though they had provided tour operator service (point to point bus service) (upto 05.07.2009), tour operator services (Chartered Bus Service) (upto 31.03.2010) and advertisement services (upto 31.03.2010) they had not filed ST-3 returns in respect of the services provided nor have paid any service tax in respect of these services rendered. 2.8 After completion of investigations a show cause notice dated 23.08.2010 was issued to the appellants demanding service tax payable and not paid by them during the period as indicated below: S No Taxable Service Period Service Tax Demanded Rs From To 1 Tour Operator (Point to Point) Apr 07 05.07.2009 4,42,99,945 2 Tour Operator (Chartered Bus) Apr 07 31.03.2010 33,70,305 3 Advertisement Services Apr 07 31.03.2010 53,670 Total 4,77,23,920 2.9 The show .....

X X X X X X X

Full Text of the Document

X X X X X X X

-Delhi)] vii. In respect of Chartered Bus Services the possession and control of the Bus is passed on to the recipient of services, and in terms of Article 366 (29A)(d), such transactions could be subject to levy of taxes under entry 54 of State List has been held by the following decisions; a. Krishna Chandra Behera and Another [1991 (083) STC 0325 ORI] b. Sri Ram [2009 (020) VST 0747 (ALL)] c. HLS Asia Ltd [2007 (8) VST 314 (Gauhati)] d. Peerless Shipping and Oilfield Services Ltd [2007 (008) VST 030 (Gauhati)] viii. Reliance placed on Rashtriya Ispat Nigam Ltd [(2002) 3 SCC 314] is not proper as the appellants have transferred the possession and control of the said buses to the customer and once transferred they were excluded from transferring the same to someone else. Hence the test laid by the Apex Court in case of BSNL [(2006) 3 STT 245 (SC)] has been satisfied ix. They had paid service tax on Chartered Bus Services under protest on 05.03.2012 x. Non payment of tax in respect of the three demands made in the show cause notice was under bonafide belief that they were not required to service tax under the said categories and as such there was no fraud, suppression, wilfull miss .....

X X X X X X X

Full Text of the Document

X X X X X X X

0- (SC)] In respect of 26 Contract carriages with them in para 68 of the impugned order Commissioner has observed that they have not proved that they have satisfied the condition No 12 of the license issued to them. There is no such allegation in the show cause notice hence Commissioner has travelled beyond the scope of show cause notice. Further he has failed to establish that these contract carriages were used under a contract for fixed set of passengers and the vehicle has not been used for tourism, conducted tours, charter or hire services. They had produced a Certificate No TC/MS/D-1/Misc/2012 dated 10.02.2012 from transport Commissioner Maharastra, that the permits issued to the appellant for air conditioned and non air conditioned buses for transportation of passengers are contract carriage permits. They had submitted the schedule for point to point transportation of passengers on contract carriage basis and also copies of bus tickets. They have complied with all the conditions of the Motor Vehicle Act and the rules made thereunder. No action has been taken by the State Transport Authority for violation of any of the condition of license. In respect of demand on Chartered Bu .....

X X X X X X X

Full Text of the Document

X X X X X X X

rs on point to point to point basis. The issue raised in the present appeal are squarely covered by the following decisions: Secy Federn of Bus Operators Assn of T N [2006 (2) STR 411 (MAD)] A P State Road Transport Corporation [2018 (8) GSTL 441 (T-Hyd)] Alok Prakash [2018 (8) GSTL 266 (ALL)] V K Rakesh, R R Travels [2016-TIOL-1706-HCKer- ST] Hans Travels [2016 (42) STR 94 (T-Del)] The claim of appellants that the services provided by them have been exempted retrospectively from 01.04.2000 by Notification No 20/2009-ST read with the Corrigendum issued to the notification ad Section 72 of the Finance Act, 2011 is not correct in law. While notification No 20/2009 read with the Corrigendum dated 31.08.2009 exempts the taxable service referred to in sub clause (n) of clause (105) of Section 65 of Finance Act, provided or to be provided to any person, by a tour operator having a contract carriage or tourist vehicle with a permit for inter-state or intrastate transportation of passengers, excluding tourism, conducted tours, charter or hire service , only the services provided by using contract carriage permit have been exempted retrospectively and not the services provided by tourist ve .....

X X X X X X X

Full Text of the Document

X X X X X X X

ry of sale of space or time for advertisement services and hence liable to service tax. Extended period of limitation has been rightly invoked as appellants have during the material period not filed any service tax returns. In fact they were filing the returns earlier but suo motto stopped filing the same from 1.04.2007. They had also failed to take registration in respect of advertisement services provided by them. Penalties and interest demands to arte justified in view of the failure of appellant to pay the service tax by the due date and comply with procedural requirements/ obligations cast on them. 5.1 We have considered the impugned order along with the appeal and submissions made during the course of arguments. 5.2 The demands made on the appellants can be put in three categories viz (a) Tour Operator Services (Chartered Bus Booking) (b) Tour Operator Service (Point to Point Bus Service) & (c) Advertisement Services. Taxability under the category of Tour Operator Services [category (a) & (b)] 5.3 In case of Ideal Travels [2012 (28) STR 257 (TBang)] following has been held: 9. We have given careful consideration to the submissions. After examining the definitions of t .....

X X X X X X X

Full Text of the Document

X X X X X X X

Parliament prior to 10-9-2004 continued on the statute took as it stood incorporated in the inclusive part of the definition of tour operator from 10-9-2004. The assessees who were engaged in the business of operating tours in tourist vehicles covered by permits granted under the Motor Vehicles Act, 1988 or the rules made thereunder were covered by this meaning of tour operator also. The findings recorded by the authorities below on the taxability of the assessees activities are well-founded. The assessees have no case on merits. 5.4 In case of Hans Travels [2016 (42) STR 94 (T-Del)] following has been held- 4. As regards remaining demand under tour operator service, it is a fact that the appellant was granted licence to operate buses as contract carriages and not as stage carriages. The contention of the appellant that it operated its buses as stage carriages does not alter the category of its buses from contract carriages to stage carriages. Tour is defined under Section 65(113) ibid as under : - Tour means a journey from one place to another irrespective of the distance between such places. Tour Operator is defined under Section 65(115) ibid as under : - Tour Operator means any .....

X X X X X X X

Full Text of the Document

X X X X X X X

udicating authority was to examine the applicability of Notification No. 20/2009-S.T., dated 7-7-2009 on merits and should not be influenced by prima facie views expressed by it (i.e., the Tribunal). 5.5 In respect of the demand made under category of Tour Operator Chartered Bus Services, appellants had contested the demand stating that they have provided the bus to charterer. The transfer of right to use the bus is a deemed sale in terms of Article 366 (29A) and can be taxed only under entry 54 of the State List. They have placed reliance on a various decisions in this respect. Commissioner has in para 71 to 77 of his order considered the submissions by the Appellant in his order and recorded as follows: 71. The department s contention appears to be correct as the Government made its intention clear to include the Chartered Bus Service in the taxable Tour Operators Service by specifically excluding the same in the Exemption Notification. 72. The assessee in their reply dated 01.12.2011, on this issue has stated that they have given buses on charter basis to various customers. In such kind of arrangements buses are given to the customers along with drivers and cleaners and all expe .....

X X X X X X X

Full Text of the Document

X X X X X X X

stated, and rightly so in our opinion, that the effective control of the machinery even while the machinery was in use of the contractor was that of the respondent company; the contractor was not free to make use of the machinery for the works other than the project work of the respondent or move it out during the period the machinery was in his use; the condition that the contractor would be responsible for the custody of the machinery while it was on the site did not militate against respondent s possession and control of the machinery. 75. The Hon ble Supreme Court of India in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 (SC), eloquently described the determinative test to decide the nature of transaction in the cases of transfer of the right to use and held as under: 87. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following attributes : a. There must be goods available for delivery; b. There must be a consensus ad idem as to the identity of the goods; c. The transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or lic .....

X X X X X X X

Full Text of the Document

X X X X X X X

he customers or passengers is the value of the taxable service according to these sections. Therefore, it is being urged by the petitioners that in reality it is a tax on passengers. The learned Counsel argues that a basic error is being committed in this and that is the nature of the tax is being decided on the basis of the measure of the tax . He points out that provisions in Section 67(m) and (n) are the measures of the tax and the measure of the tax could never be used for deciding the nature of the tax. The learned Counsel relies on the celebrated decision reported in A.I.R. 1961 S.C. 1480 (Sainik Motors case), cited supra, and points out that the principle in that case has been followed throughout right up to the decision in Federation of Hotels and Restaurants case, cited supra, wherein in paragraph 17, the Supreme Court held as under : The subject of a tax different from the measure of the levy. The measure of the tax is not determinative of its essential character or of the competence of the Legislature. In Sainik Motors v. State of Rajasthan (1962) 1 SCR 517; A.I.R. 1961 S.C. 1480, the provisions of a State law levying a tax on passengers and goods under entry 56 of List .....

X X X X X X X

Full Text of the Document

X X X X X X X

e, or by any other person at the hotel; or any accommodation in such hotel on hire or lease; or any other services envisaged in that section. The challenge was on the ground that this tax, which was being imposed under Entry 97 of List-I under Article 248 of the Constitution of India was beyond the legislative competence as in fact, this expenditure tax was squarely covered under Entry 62 of List-II which pertained to the taxes on luxuries, including taxes on entertainments, amusements, betting and gambling and also could be covered under entry 54 of List- II as the transaction in question also amounted to sale of food stuff (goods) to the customers. The Supreme Court upheld the validity of the levy of the tax. The Supreme Court accepted that the said tax could have and had distinct aspects . 83. The Apex Court recognised the said distinct aspect . viz., the expenditure aspect of the transaction and held the same to be falling within the Union Power . It held that that aspect had to be distinguished from the aspect of luxury or sale of goods. The following observations in paragraph 19 are apposite : The submissions of the learned Attorney General that the tax is essentially a tax o .....

X X X X X X X

Full Text of the Document

X X X X X X X

e routes, are required to pay service tax as they ply their buses having contract carriage permits and thus fall within the definition of tour operators. On the other hand the State Undertakings run buses, which run on the same route carrying passengers, are not subjected to service tax as these buses bear stage carriage permit . In order to bring parity between the two, the services provided by the tour operators undertaking point-to-point transportation of passengers in a vehicle bearing contract carriage permit is being fully exempted from service tax, provided such transportation is not in 1 Prior to the corrigendum dated 31.08.2009 it read as contract carriage permit relation to tourism or conducted tours, or charter or hire. (Notification No. 20/209-ST dated 07.07.09 refers). 5.9 On the dated when the Notification No 20/2009-ST i.e. 07.07.2009, the exemption notification granted exempted only in respect of services provided by the tour operator having a contract carriage permit, and not by a tour operator having tourist vehicle with permit. It was only subsequently by corrigendum dated 31.08.2009, that exemption was granted to the tour operators having a tourist vehicle with .....

X X X X X X X

Full Text of the Document

X X X X X X X

, Second Edition, Reprint 2007, at page 118, the meaning of corrigendum is, a thing to be corrected, esp. an error in a printed book . 15. This Court has also considered the nature of corrigendum in Commissioner, Sales Tax, U.P., Lucknow v. Dunlop India Limited, 1994 (92) STC 571 and said : In my opinion, Notification No. 4841 is in the nature of a correction (corrigendum) and, therefore, it dates back to the date of the notification corrected thereby, namely, June 11, 1974, on which date Notification No. 3867 was issued. A correction is a correction only when it dates back to the original order or the proceeding as the case may be. It ceases to be correction if it is effective from the date of its issuance; it then becomes an amendment. This intrinsic nature of concept of correction cannot be lost sight of. 16. The Apex Court has also observed in State of Rajasthan and Another v. J.K. Udaipur Udyog Ltd. and Another, (2004) 7 SCC 673 that the use of word corrigendum indicates the intention of correction and to rectify that the State Government thought had been erroneously done. 17. Taking this view a learned Single Judge in Jubilant Organosys Ltd. v. Assistant Commissioner of Centr .....

X X X X X X X

Full Text of the Document

X X X X X X X

), granting exemption from the whole of service tax leviable under section 66 of that Act to any person by a tour operator having a contract carriage permit for inter-State or intra-State transportation of passengers, excluding tourism, conducted tour, charter or hire service, shall be deemed to have, and deemed always to have, for all purposes, validly come into force on and from the 1st day of April, 2000, at all material times. 5.13 Thus by Section 75 of Finance Act, 2011, the date from which said notification No 20/2009-ST dated 7th July 2009 would have come into effect has been declared as 1st April 2000. Revenue has in their submission specified that this Section is silent in respect of the corrections made to notification by the corrigendum dated 30.08.2009, and again uses the phrase contract carriage permit the intention of legislature was not to give the retrospective effect from 1st April 2000, to the exemption granted in respect of services provided by tourist vehicle with permit . Thus when the wordings of the Section 75 of the Finance Act, 2011 are unambiguously granting retrospective exemption only in respect of service specified and provided by tour operators with co .....

X X X X X X X

Full Text of the Document

X X X X X X X

on passengers . Shri Sunil Savala, the partner in M/s. Neeta, has stated in his statement dated 01.07.2010, recorded under Section 14 of the Central Excise Act, 1944, read with Section 83 of the Finance Act 1994, that they are operating buses registered under the permit of Tourist Vehicles which transported passengers from Mumbai to various destinations. 68. Further from the various documents produced by the representative of the notice during the course of investigation to the investigating officer and from the statement by Shri Sunil Savla, partner of M/s. Neeta, recorded under section 14 of Central Excise Act 1944, read with Section 83 of Finance Act 1994, on 27.07.2010, the department has arrived at the conclusion that M/s. Neeta have got a permit for their buses from the transport authorities as per the provisions of Motor Vehicles Act, 1988 to operate them as Tourist Vehicles. The assessee have not contested the department s conclusion. Although the assessee have submitted, vide their letter dated 02.01.2012 (received on 03.01.2012), some documents suggesting that M/s. Neeta have got permit for their 21 buses as Tourist Bus to operate in Maharashtra State and All India (excep .....

X X X X X X X

Full Text of the Document

X X X X X X X

not declared and added this service in their registration certificate, issued under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994. Neither had they made the payment of Service Tax thereon nor filed the ST-3 returns. 5.16 Para 7(iv) reads as follows: 7. The scrutiny and investigation of the records revealed that: i-iii. ……… Iv although they were also rendering as mentioned in para 6(iv) advertising services, they had failed to declare and add this service in their registration certificate issued under section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994. 5.17 Para 9(iii) & (iv) reads as follows: 9. Following are the provisions of the Finance Act, 1994 and Service Tax Rules, 1994 in so far as they relate to the omissions and commissions of M/s Neeta Tour i. ii. iii. As per Section 65(3) of Finance Act, 1994, advertising agency means a person engaged in providing any service connected with the making, preparation, display or exhibition of advertisement an includes an advertising consultant. iv. Section 65(105)(c) of the Finance Act, 1994 defines taxable service to any person by an advertising agency .....

X X X X X X X

Full Text of the Document

X X X X X X X

), Commissioner has concluded holding the charge of suppression against the appellants stating In the present case also the assessee have not filled ST-3 returns during the period 2007-08 to 2009-10. They have filed the ST-3 Return for the period 2005-06 to 2006-07 and paid the service tax for the same period only after the case was booked against them. However from April 2007 on wards they have suddenly stopped filing ST-3 return without even informing or consulting with the department, they have also failed to declare and add Advertisement Services in the registration Certificate. Shri Sunil Savia, the partner in M/s Neeta, ahs also accepted in his statement that they have collected Service Tax from their customers from 2009 onwards on the Chartered Bus Service provided by them but had not made the payment in the Government Account and hence above judgments of Hon ble CESTAT are squarely applicable in this case also. 5.22 In respect of limitation interest and penalties, Commissioner has in para 92, Commissioner sates Therefore it is established beyond doubt that in the present case there is suppression with intention to evade payment of service tax and thus the provisions of exte .....

X X X X X X X

Full Text of the Document

X X X X X X X

ence time bar criteria is not applicable in the instant case, I find that assessee has failed to produce copy of any representation made with regard to the payments made under protest.. I also find from the copy of St-3 Returns for the relevant period and the statement showing the details of payment of service tax that assessee have collected the gross amount inclusive of service tax as they have not produced any evidence to the fact that the same have not been recovered and also the receipts do not show any kind of tax levied. I, therefore, find that assessee have correctly made the service tax payment and the refund applied for is not allowed. 6.3 Thus the refund applications filed by the appellants have been rejected by the Assistant Commissioner holding them i. Not to be admissible on merits; ii. Not admissible as filed beyond the period of limitation; iii. The burden of the tax paid has been passed on. 6.4 Aggrieved by the order of Assistant Commissioner, appellants filed the appeal before Commissioner (Appeal). Relying on the decision of Apex Court in case of Mafatlal Industries Ltd [1997 (89) ELT 247 (SC)], and in case of M/s Sahakari Khand Udyog Mandal [Order Dated 09.03.20 .....

X X X X X X X

Full Text of the Document

X X X X X X X

developments and consequent sanction of the refund amount to the appellant herein. 7.3 Arguing for the revenue learned authorized representative reiterated the findings of the lower authorities. 8.1 We have considered the submissions made in appeal, and during the course of arguments along with the impugned order. 8.2 The easiest course for deciding this appeal is to dismiss the appeal as infructuous on the basis of submissions made by the appellants. However we find that the issue on which the Commissioner (Appeal) has upheld the order of Assistant Commissioner in impugned order is not on the merits but on the grounds of limitation and the fact that the burden of amount claimed as refund has been passed on by the Appellants to the receiver of the services, hence refund fails to cross the bar of unjust enrichment. 8.3 In their ground of appeal or during the course of arguments or in the written submissions appellants have put forth any reasons to show that how the order of Commissioner (Appeal) is illegal in this respect. On the contrary appellants have in the ground of appeal at i , supra {exact wordings taken from the ground of appeals in appeal memo} have admitted that they mad .....

X X X X X X X

Full Text of the Document

X X X X X X X

t, 2011 reads as follows: Explanation.-For the removal of doubts, it is hereby declared that the provisions of section 11B of the Central Excise Act, 1944 (1 of 1944), shall be applicable in case of refunds under this section. Thus the bar of unjust enrichment as enshrined in Section 11B still needs to be satisfied before the refund could have been paid to the appellant. The order of Commissioner (Appeal) holding that appellants have passed on the burden of the service tax paid on to the recipient of services has not been set aside in appeal before us. Then it is not understood how in subsequent proceedings in respect of same amounts Commissioner (Appeal) has held contrary. Matter needs to be investigated by the Chief Commissioner, because it is submission of the appellants before us that this appeal is infructuous as the amount claimed as refund by them has already been paid to them. 8.5 Hon ble Supreme Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] held as follows: 12.Chapter IIA comprises of four sections, Sections 12A to 12D. They read thus : 12A. Price of goods to indicate the amount of duty paid thereon. - Not withstanding anything contained in this Act or .....

X X X X X X X

Full Text of the Document

X X X X X X X

signature and lodges it to the proper officer within three months from the date of such payment or adjustment, as the case may be . Similarly, Rule 11, as it obtained between August 6, 1977 and November 16, 1980, provided that claims for refund shall be made before the expiry of six months from the date of payment of duty . (Of course, this period of limitation did not apply where the duty was paid under protest.) Sub-rule (4) of Rule 11 provided in express terms that save as otherwise provided by or under these rules, no claim for refund of any duty shall be entertained . The situation obtaining under Section 11B, as it stood during the period November 16, 1980 to September 19, 1991, was no different. Sub-section (1) provided that a claim for refund shall have to be filed before the expiry of six months from the relevant date and sub-section (4) provided in specific terms that save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained . Section 11B, as amended by 1991 (Amendment) Act, is similarly worded. Sub-section (1) now provides that a claim for refund has to be filed before the expiry of six months from the relevant date a .....

X X X X X X X

Full Text of the Document

X X X X X X X

he Act including the aforesaid provisions, viz., Rule 11 and Section 11B, as they stood from time to time, are taken as valid and effective, they constitute law within the meaning of Article 265. It may be remembered that the aforesaid provisions relating to refund have always been accompanied by and are complimentary to the provisions relating to recovery of duties legitimately due under law, but not collected. The recovery provisions also contained and do contain a corresponding period of limitation, i.e., three months or six months, as the case may be. This period of six months can be extended up to a maximum period of five years in cases where non-payment of duty was on a count of fraud, collusion, wilful misstatement or suppression of fact or contravention of the provisions of the Act and the Rules indulged in with intent to evade payment of duty. 80.Section 11B, as amended in 1991, has been set out in Para 10 hereinabove. Sub-section (1) of Section 11B says that every claim for refund shall be made before the Assistant Commissioner of Central Excise within six months of the relevant date. The application shall have to be in the prescribed form and manner and shall be accompan .....

X X X X X X X

Full Text of the Document

X X X X X X X

d to sell his goods at less than its proper price. The suggestion is that the manufacturer may have to forego not only his profit but also part of excise duty and that in such a case levy and collection of full excise duty would cease to be a duty of excise; it will become a tax on income or on business. We are unable to appreciate this argument. Ordinarily, no manufacturer will sell his products at less than the cost-price plus duty. He cannot survive in business if he does so. Only in case of distress sales, such a thing is understandable but distress sales are not a normal feature and cannot, therefore, constitute a basis for judging the validity or reasonableness of a provision. Similarly, no one will ordinarily pass on less excise duty than what is exigible and payable. A manufacturer may dip into his profits but would not further dip into the excise duty component. He will do so only in the case of a distress sale again. Just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing the duty himself. The manner of preparing the invoice is not c .....

X X X X X X X

Full Text of the Document

X X X X X X X

fit of legal advice. And until about 1992, at any rate, Indian market was by and large a sellers market. 8.6 In view of the decision of the Apex Court in case of Mafatlal Industries we do not find any illegality in the order of Commissioner (Appeal). 8.7 Further in their grounds of appeal, appellants have put forth an interesting concept of protective appeal. We are unable to comprehend the said concept, because such protective appeals are not envisaged in law. The appeal could have been filed by the person aggrieved by the order passed by the lower authority. He can be aggrieved or not aggrieved. In our view such a concept for filing the protective appeal needs to be rejected. 8.8 Section 35C(1) of the Central Excise Act, 1944 is reproduced below: SECTION 35C. - (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after t .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||