9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (3) TMI 854 - AT - Service TaxManner of payment of Pre-deposit amount before filing of appeal against demand of service tax - Admissibility of payment of pre-deposit using DRC-03 - The appellant argued that they had deposited the pre-deposit using the input tax credit available in their DRC-03 under CGST regime. - HELD THAT - Hon ble High Court of Bombay in the writ petition filed in the case of SODEXO INDIA SERVICES PVT. LTD. VERSUS THE UNION OF INDIA AND ORS. 2022 (10) TMI 264 - BOMBAY HIGH COURT has clearly pointed out that there is not proper provision to accept payment of pre-deposit under Section 35F of the Central Excise Act, 1944 through DRC-03. In the decision of Tribunal, in the case of M/S. SAPHIRE CABLES SERVICES PVT. LTD., M/S. TENORMAC ENTERPRISES PVT. LTD. AND M/S. NETIZEN ENGINEERING PVT. LTD. (FORMERLY KNOWN AS RELIANCE INFOCOMM ENGINEERING PVT. LTD.) VERSUS COMMISSIONER OF CGST CE, BELAPUR 2023 (7) TMI 544 - CESTAT MUMBAI reliance on placed on the fact that the relief was granted by the Hon ble Bombay High Court in the case of Sodexo India Services Pvt. Ltd. The Hon ble High Court in the said case has clearly observed that there is no provision for using credit in DRC-03 for the purpose of pre-deposit. It is obvious that the relief was granted by the Hon ble High Court in exercise of writ jurisdiction. The Tribunal does not have that liberty. In this background, the decision of the Tribunal in the case of M/s Saphire Cables Services Pvt. Ltd. Ors. cannot be applied to the instant case. The applications seeking admission on the strength of pre-deposit made using through DRC-03 are rejected. M/s Army Welfare Housing Organization are at liberty to file appeal after paying pre-deposit in any permissible manner.
Issues Involved:
1. Demand of Service Tax under 'Construction of Complex Service'. 2. Admissibility of pre-deposit using DRC-03 under Section 35F of the Central Excise Act, 1944. Summary: 1. Demand of Service Tax under 'Construction of Complex Service': M/s Army Welfare Housing Organization, a welfare society registered under the Societies Registration Act, 1860, aimed at providing residential houses to Army personnel and their widows on a 'No profit No Loss' basis, was issued a show cause notice demanding service tax under the category of 'Construction of Complex Service' for constructing 'Residential complex'. The Commissioner adjudicated the matter, dropping a demand of Rs. 240,55,21,470/- for amounts received from project members related to "Project yet to commence" and "Ongoing Projects Receipts" but confirmed a demand of Rs. 84,95,49,572/- for amounts where construction had commenced. Aggrieved, M/s Army Welfare Housing Organization filed appeals. 2. Admissibility of Pre-deposit using DRC-03 under Section 35F: The defect notice issued to M/s Army Welfare Housing Organization highlighted the failure to submit evidence of pre-deposit. The organization claimed to have made the pre-deposit using input tax credit available in their DRC-03 under the CGST regime. However, the Revenue contended that pre-deposit cannot be made using DRC-03. The Tribunal noted substantial litigation on this issue, referencing the Bombay High Court's decision in Sodexo India Services Private Limited vs. Union of India and Ors., which observed the absence of a proper provision for accepting pre-deposit through DRC-03 under Section 35F of the Central Excise Act, 1944. The CBIC Circular dated 28.10.2022 clarified that DRC-03 is not a valid mode for pre-deposit under Section 35F, and the Tribunal's Principal Bench in multiple cases upheld this view. Conversely, the Tribunal in M/s Saphire Cables & Services Pvt. Ltd. & Ors. vs. Commissioner of CGST & CE, Belapur allowed pre-deposit using DRC-03, citing the beneficial nature of the Circular. However, the Tribunal in this case concluded that it cannot grant relief based on equity as the High Court did, and thus, applications seeking admission on the strength of pre-deposit through DRC-03 were rejected. M/s Army Welfare Housing Organization was granted liberty to file an appeal after making pre-deposit in a permissible manner. (Pronounced in the open court 13.03.2024)
|
