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

2019 (5) TMI 599

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... rvices. 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 the taxable category defined by Section 65(105)(zzzzm) viz “sale of space or time for advertisement”. He has after referring to the submissions made and definition as provided by Section 65(105)(zzzzm), held the tax to be demandable in that category. Clearly Commissioner has travelled beyond the show cause notice. Since no demand has been made in the show cause notice under this category we are not in position to sustain the order of Commissioner in this respect - Demand do not sustain. Time limitation - Interest - penalties - HELD THAT:- There are no merits in the submissions made by the appellant against the order of Commissioner, in respect of limitation, interest and penalties - these charges can now be sustained only in respect of the demands which can be sustained on merits i.e. in respect of the Chartered Bus Services. Refund of service tax - time limitation .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 Service Tax Rules, 1994 a penalty of ₹ 5000/- or Rs Two Hundred everyday during which such failure continues, whichever is higher, is imposed, under the provisions of Section77 of the Chapter V of the Finance Act, 1994. Also for failure to file ST-3 return as required under Section70 of the Act read with Rule 7 of the Service Tax Rules , 1994, a penalty of ₹ 5000/- is imposed under the provisions of Section 77 of the Chapter V of the Finance Act, 1994. v. A penalty of ₹ 4,77,23,920/- (Rupees Four Crore Seventy Seven Lakhs Twenty Three Thousand Nine Hundred and Twenty 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ant 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, under Section 11B of Central Excise Act, 1944 as made applicable to service tax by virtue of Section 83 of Chapter V of Finance Act, 1994. S No Period Amount 1 2002-03 ₹ 7,94,291/- 2 2003-04 ₹ 43,39,305/- 3 2004-05 ₹ 46,69,028/- 4 2005-06 ₹ 89,82,464/- 5 2006-07 ₹ 1,21,01,718/- 1.5 Though all the three appeals were listed together and have been heard together we find from the records that issue involved in appeal No ST/466/2012, is that of rejection of refund claims filed by the appellants and is not exactly identical to the issues involved in other two appeals. Hence this appeal will be taken up for discussion separately. Appeal No ST/174, 345/2012 and Cross Objections ST/CO/71/2012 2.1 Appellants are providing taxable services under category of tour operator services , for which they have taken registration with the Service Tax authorities. 2.2 Act .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... id 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 cause notice at para 2.8 was adjudicated by the Commissioner as per his order in para 1.2, supra. Aggrieved by the order of Commissioner, appellants are in appeal before us [Appeal No ST/174/2012]. 2.6 The show cause notice at para 2.5 was adjudicated by the Commissioner as per his order in para 1.3, supra. Aggrieved by the order of Commissioner, appellants are in appeal before us [Appeal No ST/345/2012]. 3.1 In their appeal appellants have challenged the order of Commissioner stating that i. they are having contract carriage or tourist vehicle with permit for inter-state or intra-state transportation of passengers therefore entitled for exemption under Notification No 20/2009-ST dated 07.07.2009 read with section 75 of the Finance Act, 2011 granting exemption retrospectively from 01.04.2009. ii. exemption under the said notification was initially granted to contract carriag .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 misstatement or any intention to evade service tax, so invocation of extended period is not justified and penalty imposed under section 76, 7, & 78 cannot be justified. xi. Their bonafide belief is established by the letter issued by JS(TRU) No JS9TRU)/72/2009-TRU dated 04.11.2009. xii. They had paid service tax under protest on point to point bus service for the period from 2002-03 to 2006-07 without collecting the same from passengers. Subsequently by Finance Act, 2011 these Services have been exempted from payment of tax retrospectively from 01.04.2000. xiii. They had no criminal intent or mensrea to evade payment of tax hence penalty under Section 78 is not justified. {Pepsi Foods Ltd 2010 (260) ELT 481 (SC)]. Also penalty under Section 76 and 78 should not have been imposed simultaneously as held in case of First Flight Courier [2011 (22) STR 622 (P & H)] 4.1 We have .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... assengers 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 Bus Services they have not provided any tour operator services but have let out buses on charter basis. The buses are under supervision, possession and control of charterer. Thus there is transfer of right to use the buses which is deemed sale in terms of Article 366 (29A) of the Constitution of India and hence no service tax could be demanded, in view of decisions as follows: Krishna Chandra Behera and Another [1991 (083) STC 0325 ORI] Sri Ram [2009 (020) VST 0747 (ALL)] HLS Asia Ltd [2007 (8) VST 314 (Gauhati)] Rashtriya Ispat Nigam Limited [2002 (3) SCC 314} BSNL [2006 (3) STT 245 (SC)] Since providing the buses to charterer is not covered under tour operator services the demand made in respect of this cannot be sustained. Demand made in respect of Advertisement Services cannot be sustained as there is no such head. While Show Cause Notice proposed the demand under Advertisi .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 vehicle with permit . Thus the benefit of exemption would be admissible to the appellants prospectively and shall not be admissible retrospectively with effect from 01.04.2000 Referring to para 6.1 of D O F No 334/13/2009-TRU dated 6th July 2009 he explained that intention of the exemption notification No 20/2009-ST, that said notification was issued to bring on parity the services provided by the private bus operator using busses having contract carriage permit for transportation of passengers on specific interstate or intrastate routes with State Undertaking bus with Stage Carriage Permit on the same route. The purpose of the said notification was not to exempt the services provided by the tour operators providing services in relation to tourism or conducted tours or charter or hire. Tour operator as defined by clause (115) of Section 65 of the Finance Act , 1994, means any p .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 tour and tour operator under Section 65 of the Finance Act, 1994, we note that the term tour always meant a journey from one place to another irrespective of the distance between such places and that tour operator always meant or included a person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder. The definition of tour operator was widened w.e.f. 10-9-2004 to mean any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight-seeing or other similar services) by any mode of transportation. The meaning of tour operator was further expanded w.e.f. 16-5-2008 by including (in addition to tourist vehicle) a contract carriage (by whatever name called) covered by a permit, other than a stage carr .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder; With effect from 10-9-2014, the said definition reads as under : - Tour Operator means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight-seeing or other similar services) by any mode of transport and includes any person engaged in business of operating tours in a tourist vehicle covered by a permit under the Motor Vehicles Act, 1988 or the rules made thereunder; A tourist vehicle is defined under Section 65(114) read with Section 2(43) of Motor Vehicles Act, 1988 as under:- Tourist vehicle means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... y 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 expenses relating thereto with regard to diesel oil etc. is borne by them. Under the arrangement buses are under the physical control and possession of the service receiver for the given period of time and the notice is only concerned with the hire charges. 73. In the chartered bus arrangement the assessee is neither concerned with any planning, scheduling etc. of tour for such customers. They simply provide the buses along with driver and cleaner to the customers who obtain required permits from the Transport Authorities for transportation of passengers. The customers then use the bus for required purposes i.e. transfer of right to use bus, wherein the possession and effective control of the bus is transferred to the customers and then the customers with the help of driver and cleaner use the bus for its desired purpose i.e. transportation of passengers. According to the assesse .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 licenses required therefore should be available to the transferee; d. For the period during which the transferee has such legal right, it has to be the exclusion to the transferor this is the necessary concomitant of the plain language of the statute - viz. a transfer of the right to use and not merely a licence to use the goods; e. Having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. 76. In short, the transaction is treated as transfer of right to use goods and deemed sale, only when the entire elements as mentioned above are present. 77. Transfer of right to use any good is leviable to sales tax / VAT as deemed sale of goods under article 366(29A)(d) of the Constitution of India, if the transfer of right to use involves transfer of both possession and control of the goods t .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... rom 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 were assailed on the ground that the State was, in the guise of taxing passengers and goods, in substance and reality taxing the income of the stage carriage operators or, at any rate, was taxing the fares and freights , both outside of its powers. It was pointed out that the operators were required to pay the tax calculated at a rate related to the value of the fare and freight. Repelling the contention, Hidayatullah, J., speaking for the Court, said (at p. 1484 of A.I.R. 1961 S.C.): ….we do not agree that the Act, in its pith and substance, lays the tax upon income and not upon passengers and goods. Section 3, in terms, speaks of the charge of the tax in respect of all passengers carried and goods transported by motor vehicles , and though the measure of the tax is furnished by the amount of fare and freight charged, it does not cease to be a tax on passengers and go .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... t 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 on expenditure and not on luxuries or sale of goods falling within the State power, must, in our opinion, be accepted. As contended by the learned Attorney General, the distinct aspect namely, the expenditure aspect of the transaction falling within the Union power must be distinguished and the legislative competence to impose a tax thereon sustained. … … … 84. The decision in Federation of Hotels and Restaurants case is clear that even if the tax is on account of the business or calling or trade of the tax-payer, i.e. of running a cab agency or conducting tours by using tourist vehicles or taxis, the tax is on the distinct aspect of service provided by him and, therefore, the argument that this falls under entry 60 of List-II is clearly incorrect and has to be rejected. This challenge by the rent-a-cab scheme operators , which also is applicable to the to .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... n 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 the permit. It is also clear from the plain reading of notification date 07.07.2009, that there is no intention to grant the exemption with retrospective effect. The same thing has been stated in the TRU letter dated 06.07.2009. 5.10 Hon ble Allahabad High Court has in case of Polyplex Corporation [] held as follows, while interpreting a amending notification, issued as corrigendum : 7. So it clearly says that it is a corrigendum to Notification No. 93/2004-Cus., dated 10-9-2004. It is not an amendment or modification or alteration in the earlier notification so as to make a change therein as such but when the author of a document makes a correction, it relates back to the date of initial authoring for the reason that correction means whatever written was not correct or there was some mistake which need be corrected. A correction or corrigendum precedes an inherent admission .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... er 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 Central Excise, Mysore-III, 2012 (276) E.L.T. 335 (Kar.) has also said : A corrigendum is nothing but a correction and it relates back to notification itself. 18. I may notice here that even in the matter of statutes whenever a subsequent provision is made with a specific and clear purpose of supplying an obvious omission in the former statute, the subsequent one has been held to relate back to the time when previous one was enacted. In the context of clarificatory provisions this principle has also been followed. 19. In Government of India v. Indian Tobacco Association, 2005 (187) E.L.T. 162 the Supreme Court in para 27 of the judgment observed : 27. There is another aspect of the matter which may not be lost sight of. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... e 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 contract carriage permit , the said phrase cannot be interpreted to mean the phrase contract carriage or tourist vehicle with permit , on the basis of the wordings used in the Notification No 20/2009-ST dated 7th July 2009 as corrected by corrigendum dated 31.08.2009. 5.13 We do not find force in the submissions made by revenue. i. In the explanatory memorandum, explaining the provisions of Finance Bill, 2009, on page 23, para IV (2) it has been stated: Retrospective effect is being given to notification No 20/2009-ST dated 07.07.2009exempting service tax on inter-State or intra-State transportation of passengers in a vehicle having Contract Carriage permit or a tourist vehicle permit for the period from 01.04.2000 to 06.07.2009. ii. Similarly JS (TRU-II) has vide his DOF No 334/3/2011-TRU dated 28.03.2011, which is also the part of budget documents in para 12.7 stated as follo .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... hicles. 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 (except Himachal Pradesh and Chandigarh) and permit for 26 buses as Contract Carriage from transport authority to operate in Maharashtra State and in some cases it is only for Mumbai area. As far as vehicles with permit to operate as Tourist Bus are concerned, the exemption is not available. As regards the vehicles with permit to operate as Contract Carriage, it is seen that the Permits for Contract Carriages are issued with some attached conditions. However the assessee have failed to produce any document to prove that they have fulfilled the conditions for Contract Carriage Permit especially the condition at Sr.No.12 which reads as follows: The permit holder shall offer his vehicle for hire or reward only under contract expressed or implied for the use of the vehicle as a contract carriage only as defined under the Act and except for a reasonable cause no intending passengers sha .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... nance 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 in relation to advertisement in any manner. v. …….. 5.20 From the above paragraphs in show cause notice it is evident that the demand made by the show cause notice on advertisement services related to taxable services defined in the taxable category of advertisement agency services . Commissioner has considered the issue by considering the demand under the taxable category defined by Section 65(105)(zzzzm) viz sale of space or time for advertisement . He has after referring to the submissions made and definition as provided by Section 65(105)(zzzzm), held the tax to be demandable in that category. Clearly Commissioner has travelled beyond the show cause notice. Since no demand has been made in the show cause notice under this category we are not in position to sustain the order of Commissioner in this respect. 5.21 Thus in view of our discussions as above while .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... T 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 extended period have been rightly invoked which also render them liable to penalties under Section 76 & 78 of the Finance Act, 1994. Since there was short payment/ nonpayment, interest under section 75 of the Finance Act, 1994, comes into picture and is therefore chargeable from the noticee. Further, they are also liable to be penalized under Section 77 of the Finance Act, 1994 for contravention of provisions of Section 68 (for their failure to pay service tax), Section 69 (for their failure to take registration for the Advertisement Services rendered by them, under appropriate service category), Section 70 (their failure to file ST-3 Returns) and Section 73(A) for not depositing the Service Tax collected by the assessee from their clients with the Government Treasury. 5.23 We do not find any merits in the submissions made by the appellant against the order of Commissioner, i .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 09.03.2005 in Civil Appeals No 6832 & 6833 of 1999] Commissioner (Appeal) upheld the order of Assistant Commissioner. 6.5 Aggrieved by the order of Commissioner (Appeal) appellant have filed this appeal. 7.1 In their appeal, appellants have challenged the order of Commissioner (Appeal) stating that- i. The learned appellate authority has erred in law and in facts in not appreciating that, the appellant has not collected service tax from the passengers, and the payments for the period 2002-03 to 2006-07 were made under protest and subsequent to the amount received from service receiver and hence the doctrine of unjust enrichment is not applicable to them. ii. The learned Appellate Authority has erred in law and in facts in not appreciating the submission of the appellant wherein is has been stated that the refund claims were premature and therefore to keep the matter in abeyance t .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ts 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 made the payment of service tax after collecting the amount of amounts from the service receiver. 8.4 In para 1.5 of their written submissions appellants have stated 1.5 Apart from the above, in the appellants own case, this view has been accepted by the department. The appellant had paid service tax for the period from 2002-03 to 2006-07 during July 2004 to October, 2007 without collecting the same from the customers. Thereafter, the appellants filed 5 refund claims as the service tax was paid under protest. The refund claim was rejected by the Assistant Commissioner vide order dated 22.05.2008. Being aggrieved, the appellant had filed appeal before the Commissioner of Central Excise (Appeals) on 25.08.2009. The said appeal has been recently allowed vide order in appeal dated 28.04.2016 holding that the appellant is entitled for benefit of exemption under Notification No 20/200 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B. Presumption that incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 12C. Consumer Welfare Fund. There shall be - (1) established by the Central Government a Fund, to be called the Consumer Welfare Fund. There shall be credited to the Fund, in such manner as may (2) be prescribed, - The amount of duty of excise referred to .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... at 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 and sub-section (3) declares in emphatic terms that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2) . Sub-section (2), it may be mentioned, provides the circumstances in which and the grounds on which a refund shall be made, or shall be denied, as the case may be. It is necessary to emphasise that the exclusivity of these provisions relating to refund - and conversely the bar to other proceedings created by them - is specific to the subject of refund and is apart from and in addition to the general bar implicit in the Act or expressed in some of its other provisions, as the case may be. Because the Act creates new rights an .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ded 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 accompanied by documentary and other evidence including those referred to in Section 12A to establish that the duty claimed by way of refund has not been passed on by him to any other person. The proviso to sub-section (1) expressly states that pending applications for refund made before the commencement of the 1991 (Amendment) Act shall be deemed to have been made under sub-section (1) of Section 11B as amended in 1991 and that the same shall be dealt with in accordance with sub-section (2). Subsection (2) provides that only in situations specified in Clauses (a) to (f) therein will the refund be granted to the applicant; in all other cases, the amount will be credited to the Fund established under Section 12C. Sub-section (3) declares that notwithstanding anything to the contrary contained in (a) any judgment, decree, order or direction of the Appellate Tribunal or any Court or (b) .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ill 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 conclusive. While we cannot visualise all situations, the fact remains that, generally speaking, every manufacturer will sell his goods at something above the cost-price plus duty. There may be a loss-making concern but the loss occurs not because of the levy of the excise duty - which is uniformly levied on all manufacturers of similar goods - but for other reasons. No manufacturer can say with any reasonableness that he cannot survive in business unless he collects the duty from both ends. The requirements complained of (prescribed by Section 11B) is thus beyond reproach - and so are Sections 12A and 12B. All that Section 12A requires is that every person who is liable to pay duty of excise on any goods, shall, at the time of clearance of the goods, prominently indicate in all the relevant documents the amount of such duty which will form part of the price at which the goods .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ders 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 taking additional evidence, if necessary. From the reading of the said section it is evident that tribunal cannot decide the appeal holding the same to be infructuous. In case the same is held infructuous, it would imply that the impugned order is upheld. Thus even by accepting the submissions made by the appellants if the impugned order of Commissioner (Appeal) is upheld, then again it would be upholding the rejection of the refund claim on the grounds of unjust enrichment. That being so the subsequent order of Commissioner (Appeal) of 2016 cannot survive. 8.9 In view of discussions as above we do not find any merits in this appeal filed by the appellant. 9.1 In view of discussions as above:- a. We partially allow the appeal No ST/174/2012 to the extent of setting aside the demands of Service tax, interest and penalties imposed in respect of services namely Tour Operator (Poi .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

|| 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.
|| Site Map - Recent || Site Map ||