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Service Tax - Case Laws
Showing 281 to 300 of 30277 Records
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2024 (9) TMI 932
Taxability - scope of the expression “horticulture activity” - HELD THAT:- Having regard to the nature of activities and obligations to be performed by the appellant assessee, we find that the said activities do not come within the scope of the expression “horticulture activity”.
The show cause notice dated 13.10.2010 was rightly issued as against the appellant herein - there are no. merit in the appeal - appeal dismissed.
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2024 (9) TMI 931
Interpretation of Service Tax Mega Exemption N/N. 25/2012 for services provided to the Government Authority - liability of petitioner to pay the service tax for the services provided to the Government Authority - application seeking rectification of mistake by considering the submissions along with the annexure afresh - HELD THAT:- In SANJEEV SURESH DESAI VERSUS UNION OF INDIA AND ORS. [2024 (6) TMI 1167 - BOMBAY HIGH COURT] this Court has held that the concerned Appellate Authority cannot be blamed since it did not have the power to condone the delay. It was also recorded in paragraph No.5, that the Court was inclined to exercise it’s jurisdiction under Article 226 of the Constitution of India particularly in view of Article 300A of the Constitution of India. We deem it appropriate to adopt the same course.
On the merits of the impugned order dated 28.08.2023, passed by Respondent No. 3, as recorded below paragraph Nos. 3 and 4 hereinabove, it is obvious that Respondent No. 3 dismissed the claim of the deceased on the sole ground that adequate documents were not placed on record to indicate that the said Proprietary firm was eligible for an exemption under Clause 12 of the Notification dated 20.06.2012 - It is also recorded in the impugned order that had the Noticee produced the documents in support of the claim for exemption, the matter could have been looked at from that point of view. It was also recorded that the onus of placing such documents on record, lay on the claimant. It was finally recorded that as the relevant documents were not before the said Authority, the claim was rejected.
The pending appeal, belatedly filed by the Petitioner on 30.05.2024, shall stand disposed off from the file of the Appellate Court - petition allowed in part.
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2024 (9) TMI 930
Maintainability of appeal - appeal rejected on the ground of non-payment of pre-deposit - HELD THAT:- It is found that factually, the payment of pre-deposit was made on 14.12.2023 and an e-mail was also sent to the appellate authority of the fact payment of pre-deposit, however, the order impugned does not take into consideration the said aspect of pre-deposit having already been made and the Appeal has been rejected.
There is a basic error crept in the order impugned. Once the pre-deposit has been made and the same is already accepted, the Appeal could not have been rejected. Merely because the pre-deposit had not been submitted at the time of filing the Appeal, it cannot be said that the pre-deposit cannot be made after filing of the Appeal. The same has been deposited before adjudication and therefore, the appeal is required to be examined on merits.
The condition of pre-deposit is to be understood as a pre-requisite for the purpose of adjudication of an appeal. Section 35-F of the Act which requires deposit of certain percentage of duty demanded or penalty imposed before filing of an appeal. Since the pre-deposit has been made in the present case, the appellate authority having knowledge of the pre-deposit already made could not or ought not have dismissed the appeal solely on the ground that at the time of filing of appeal, pre-deposit has not been made. The same has been deposited before adjudication of the appeal. Therefore, the appeal is required to be examined on merits.
The impugned order set aside - petition allowed.
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2024 (9) TMI 929
Liability of appellant Shri Bhavik Hitesh Shah to discharge the service tax under the category of ‘Man Power Recruitment and Supply Agency Service’ for undertaking the work of loading, unloading, sorting, breaking, cutting and casting of brass scrap into billets for M/s Rajhans Metals Private Limited. - HELD THAT:- From the nature of work in the contract and the payment terms against such work and other conditions clearly show that Shri Bhavik Hiteshbhai Shah has not provided the ‘Man Power Recruitment and Supply Agency Service’ whereas he has undertaken the job of various activities up till the scrap converted into billets, therefore, the activity is amounting to manufacture in terms of Section 2(f) of Central Excise Act, 1944. Merely, because for carrying out the said job work the manpower is deputed that itself does not mean that the appellant have provided the ‘Man Power Recruitment and Supply Agency Service’. The appellant have also raised the bill of per KG of material processed by the appellant.
From the bill raised by the appellant, it is clear that the rate was charged on the basis of the total weight of the material processed by the appellant. Therefore, the charges are not towards the wages of labour engaged for carrying out the job work. In this fact it is clear that the appellant have not provided any service of Man Power Recruitment and Supply Agency Service. This issue is no longer res-integra as it is directly covered by the various judgments cited by the learned counsel.
The demand under Man Power Recruitment and Supply Agency Service is not sustainable - Hence, the impugned order is set aside - Appeals are allowed.
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2024 (9) TMI 928
Proportionate reversal/recovery of CENVAT Credit - unsold flats available on the day of issue of completion/occupancy certificate to the builder - HELD THAT:- There can be no second opinion that credit eligibility is to be examined as on the date receipt of input services and it is not governed by latter development such as portion of property getting converted into immovable property after receipt of completion certificate as could be noticed from para 12 and 14 of the relied upon judgment passed in the case of M/s. Alembic Ltd. Vs. Commissioner of Central Excise and Service Tax, Vadodara–I [2018 (10) TMI 1557 - CESTAT AHMEDABAD]. Otherwise also going by the provision of law such sale of immovable property having been excluded by statute namely by the Finance Act, 1994, under Section 65B(44) from the definition of service that is apparently done taking the constitutional mandate available under Section 366(29) of the Constitution of India, including the same as a component of exempted service through Explanation-3 added to Rule, 6 of the CENVAT Credit Rules, 2004 can’t be said to be a validly legislated rule in view of operation of Section 38A of the Central Excise Act, equally applicable to Service Tax matters as covered under Section 83 of the Finance Act, 1994.
The order passed by the Commissioner of GST & Central Excise (Appeals Thane), Mumbai is hereby set aside - Appeal allowed.
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2024 (9) TMI 927
Recovery of service tax along with interest and penalty, for the period October 2004 to March 2008 - amounts received by the bank under various Heads like amounts written of; insurance commission; postal charges recovered and miscellaneous income - HELD THAT:- While the first three categorically do not appear to involve any service by the appellants, learned Consultant for the appellants submits that the miscellaneous income is on account of sale of scrap etc. On the whole, the income appears to be revenue income in nature and not a consideration towards any taxable service rendered by the appellants. It is the responsibility of the Revenue to identify the service provider, the service rendered and the remuneration received before proceeding to recover service tax. No such effort has been made. Moreover, the case is made on the basis of the difference between ST-3 Returns and financial records without identifying the service and the remuneration. Under the circumstances, the Show-Cause Notice and the resultant impugned order cannot be legally sustained.
The appeal is allowed.
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2024 (9) TMI 926
Levy of service tax - Cargo Handling Service - Cargo Handling Service - Transportation of Ash upto distance of 25 km./31 km. with incidental Loading of Ash (evacuation of Ash) - Extended period of limitation.
Cargo Handling Service - Mining Service - HELD THAT:- This issue has been examined by this Tribunal in the case of M/S MAA KALIKA TRANSPORT PRIVATE LIMITED VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, ROURKELA, ROURKELA [2023 (7) TMI 435 - CESTAT KOLKATA], wherein this Tribunal has observed that 'the Appellant was not providing any of the services mentioned above which fall under the category of “Cargo Handling Agent Service”. Further, we observe that there was no proposal in the Notice to categorize the service rendered by the Appellant as “Cargo Handling Agent service”. In the impugned order, the adjudicating authority classified the services under the category of “Cargo Handling Agent Service” on his own.'
As the issue has already been settled that the transportation of goods outside the mines, do not qualify under “Cargo Handling Service”. Therefore, the demand of Rs.14,92,41,316/- has been rightly dropped by the adjudicating authority and the demand of Rs.13,77,14,657/- is also not sustainable under the “Cargo Handling Service”, which is only transportation of goods agency service.
Mining Service - HELD THAT:- The activity undertaken by the assessee, is the transportation of coal up to the distance of 7 km, which is incidental loading and the same is taxable under “Transport of Goods by Road Service” as held by the Hon’ble Supreme Court in the case of Commissioner of Central Excise and Service Tax, Raipur Vs. Singh Transporters [2017 (7) TMI 494 - SUPREME COURT], wherein it has been held that the transportation of coal from pit head to railway siding inside the mines is taxable as “Goods Transport Agency Services”.
Circular No.334/1/2008-TRU dated 29.02.2008, has clarified that the method of charging or invoicing does not in itself determine whether the service is a single service or multiple service. Single price normally suggest single supply though not decisive. The real nature and substance of the transaction and not merely the form of the transaction should be the guiding factor to decide the classification. The classification is to be determined based on essential feature or dominant activities.
Thus, the transportation of coal within mines up to the distance of 7 km, falls under the category of “Transport of Goods Agency Services” and not under the “Mining Services” - the demand under “Mining Service” of Rs.10,18,98,846/- is not sustainable against the assessee.
Service tax of Rs.3,58,15,811/- is demanded on the differential value of services as provided and the service tax has been confirmed against the assessee - HELD THAT:- The contention of the assessee that the said demand is relating to “works contract service”, on which the assessee has paid the tax at the rate of 4.12% under composite scheme. Therefore, the said demand is not sustainable against the assessee.
The appeal filed by the assessee is allowed and the appeal filed by the Revenue is dismissed.
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2024 (9) TMI 925
Cash refund claim of unutilized Cenvat credit - no correlation between input services utilized and the output services and invoices did not contain the proper description and classification - HELD THAT:- The Department has denied the refund claim solely on the ground that the Appellants were not eligible for taking Cenvat credit for the input services used by them and in some cases, there was no nexus between the input services and output services. In both the cases, the issue is that of taking of Cenvat credit on ineligible services. It is also an admitted fact that no SCN was issued in terms of Rule 14 to recover Cenvat credit on account of such ineligible services. The refund under Rule 5 is filed for the Cenvat credit already taken on record by the Appellant. Only when the refund claim under Rule 5 was filed while scrutinizing the refund claim, this point was raised and part of the refund claim was rejected solely on this ground.
This issue is no more res integra. In the case of Qualcomm India Pvt Ltd [2019 (8) TMI 1645 - CESTAT HYDERABAD], this Tribunal has held 'it can be said that taking of Cenvat credit on the disputed services by the appellant is in conformity with the Cenvat statute. Rule 5 ibid nowhere specifies that Cenvat credit can be denied on the ground of irregular availment or utilisation of the same. Thus, in absence of specific provisions contained in the statute, denial of the refund benefit provided under Rule 5 ibid, in our considered opinion, cannot stand for judicial scrutiny.'
The facts of the present case call for application of the ratio of the cited case law. Accordingly, the Appellant is eligible for refund claims made by them, which actually have been rejected by the lower authorities on the ground of ineligibility of Cenvat credit.
Appeal allowed.
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2024 (9) TMI 924
Violation of principles of Natural Justice - petitioner neither received the Show Cause Notice nor the notices for personal hearings - time limitation - whether in the facts of the case, the order of the Commissioner (Appeals) suffers from any infirmity in deciding the matter by remanding it back to the Original Authority keeping in view of the grounds which were raised by the appellant before the Commissioner (Appeals)?
HELD THAT:- The grounds which were raised by the appellant, as discussed in para 4 of the impugned order, covers two broad aspects, firstly, that the demand for the period 2014-15 is time barred and secondly that there is no issue of show cause notice or correspondences etc., as alleged in the Order-in-Original from the Department and therefore there was a clear breach of principles of natural justice in the Order-in- Original. On going through the impugned order, it is found that as far as the first issue is concerned there is a clear finding by the Commissioner (Appeals) that the demand for the period 10/2014 to 06/2017 is not sustainable and therefore, he has set aside the same as time barred. There is no dispute by the Revenue on this issue.
Appellant has also taken into account the grounds of non-receiving the letters of personal hearings as well as not getting the show cause notice and has come to the conclusion that there is a merit in appellant’s contention that there is a violation of principles of natural justice and therefore the impugned order was set aside. Therefore, on this count also he has given observations and directions.
A plain reading of the impugned order would indicate otherwise as in this case it is obvious that first the Adjudicating Authority is required to decide the issue of serving of proper notice on the appellant and thereafter by way of natural justice an opportunity is also to be extended for appellant to produce all the relevant documents in support of their defence. Thereafter, if the show cause notice has not been served in accordance with the law Original Authority would not be able to proceed further and would be bound by the law including various citations relied by the appellant in this regard.
There are no infirmity in the order of the Commissioner (Appeals) in remanding the matter back for decision afresh for the period 10/2014 to 06/2017 subject to certain observations and directions - appeal disposed off.
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2024 (9) TMI 923
Failure to discharge appropriate service tax on the construction services provided - Construction of Residential Complex Service - Construction of Commercial or Industrial Construction - extended period of limitation - HELD THAT:-The demand is for the period from October 2006 to March 2011 under Construction of Residential Complex Service and Construction of Commercial or Industrial Complex Service. The Annexure to the Show Cause Notice would show that the appellant has provided both Construction of Residential project as well as Commercial project. The issue as to whether a builder / promoter / developer is liable to pay service tax for construction of residential complexes for the period prior to 01.07.2010 is settled by the decision in the case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES [014 (3) TMI 694 - CESTAT AHMEDABAD]. This Tribunal has followed the decision in the case of Vijay Shanthi Builders Ltd. Vs. Commissioner of Service Tax [2017 (8) TMI 519 - CESTAT CHENNAI] and set aside the demand.
In the present case, it is very much clear that the appellant has carried out the construction services as a builder since the undivided share was also sold and thereafter constructions carried out. They have also carried out constructions for the landowner in exchange of the land value. All these would show that the appellant has acted as a builder / promoter / developer for residential projects. The decision rendered by the Tribunal in the above cases would squarely apply and the demand for the period prior to 01.07.2010 under Construction of Residential Complex Services cannot sustain. The same is set aside.
Reliance placed in the case of Real Value Promoters Pvt. Ltd. [2018 (9) TMI 1149 - CESTAT CHENNAI]. The said decision was followed by the Tribunal in the case of Jain Housing & Construction Ltd. Vs. Commissioner of Service Tax [2023 (2) TMI 1044 - CESTAT CHENNAI]. In the said case, it was held that demand of service tax under Construction of Residential Complex Services or Commercial or Industrial Construction Services cannot sustain when the works executed are composite in nature. In the present case, it is very much clear that the construction works carried out by the appellant are indivisible contracts which involve both supply of materials as well as rendition of service. In the Show Cause Notice, the Department has allowed abatement under Notification No. 1/2006 which would establish that all the works executed are composite in nature.
Following the decision, in the case of Jain Housing & Construction Ltd., it is opined that the demand for the entire period cannot sustain being composite contracts.
The impugned order is set aside - Appeal allowed.
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2024 (9) TMI 922
CENVAT Credit - trading of securities - investing in mutual funds and securities - appellant has availed common input services for taxable and exempted services (amount received from mutual funds / securities) - period from 2010-11 to 2014-15 - HELD THAT:- As per Section 2 (h) (i) and 2 (h) (id) of the Securities Contract (Regulation) Act, 1956 (42 of 1956), the activity of purchase and sale i.e., trading of units of Mutual Fund Schemes and Equity Share indulged by a taxpayer, is nothing but trading of ‘securities’. As ‘goods’ include ‘securities’ and trading of goods is an exempted service, the activity of purchase and sale of units of Mutual Fund Schemes and Equity Shares indulged by the appellant, is an exempted service.
It can be seen that the appellant is investing their surplus / income in mutual funds. The entire demand is raised on the basis of financial statements of the appellant for the disputed period. A sample of the financial statement for the year 2010-11 has been extracted above. In such financial statement the amount invested in mutual funds is shown under the heading ‘purchase of money market mutual funds’. The profit received from sale of mutual funds is shown as ‘proceeds from sale of money market mutual funds’. These fall under the main heading ‘cash flow from investing activities’. The appellant has no where accounted the income from purchase and sale of securities under the head of ‘trading’.
In the present case, the appellant has invested their income in shares / mutual funds and also sold certain investments. They have acted like any individual who would invest funds in shares / securities. The appellant is not engaged in the business of trading of shares / securities as provided under Section 105 (zzzzg) of the Act ibid. It requires to be stressed that the activity of engaging in sale and purchase of securities for another is a taxable service under Finance Act, 1994. Only a licensed person or agent can engage in doing such activity of sale and purchase of shares. The department seems to have confused purchase and sale of shares as an investment with the ‘trading of goods’ as a business - the trading of goods is part of the business of the manufacturer. The appellant is not engaged in the business of trading of shares. In fact it is stated that they have only one portfolio which is investment portfolio. All this goes to establish that appellant is not engaged in trading of goods / securities.
The Tribunal M/S. INSTAKART SERVICES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BENGALURU [2024 (3) TMI 1350 - CESTAT BANGALORE] after detailed discussion has held that the investment income cannot be held to be trading of goods so as to demand 6% value under Rule 6 (3) (iii) of CCR 2004.
The demand cannot sustain - the impugned order is set aside - appeal allowed.
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2024 (9) TMI 843
Demand of service tax and penalties - challenge to notices for recovery of government dues issued on 02.02.2024 - grievance of the writ petitioner is that the services rendered by the writ petitioner which have been found under the realm of Service Tax by the Assessing Authority is actually exempted under the Mega Exemption N/N. 25/12 dated 20.06.2012.
HELD THAT:- Issue Notice, Returnable in four weeks.
Matter be listed posted after four weeks to be listed on 17.07.2024.
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2024 (9) TMI 842
Valuation of service tax - inclusion of reimbursable expenses in the taxable value - reverse charge mechanism - HELD THAT:- The demand is made for not including the expenses incurred for providing the service and reimbursed. The issue is settled by the decision of the Hon’ble Supreme Court in the case of Intercontinental Consultants and Technocrats, Pvt Ltd [2018 (3) TMI 357 - SUPREME COURT] where it was held that 'only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax.'
The demand of service tax for the impugned period cannot sustain and requires to be set aside. The impugned order is set aside - Appeal allowed.
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2024 (9) TMI 841
Classification of services - Intermediary Service or Export of Services? - providing services to the overseas educational institution from where they were getting certain commission on the basis of agreements with the overseas colleges/universities - HELD THAT:- The Adjudicating Authority vacated the demand of service tax on the Appellant by relying upon the decision of the Tribunal in the case of M/s Sunrise Immigration Consultants Private Limited vs. CCE & ST, Chandigarh [2024 (9) TMI 409 - CESTAT CHANDIGARH] and has held that the services rendered by the Appellant do not fall in the definition of ‘Intermediary Service’ as defined under Rule 2(f) of the Place of Provision of Service Rules, 2012.
Since the issue involved in the present case has already been decided in favour of the Appellant by the Tribunal in the case of M/s Sunrise Immigration Consultants Private Limited vs. CCE & ST, Chandigarh holding that the services provided by the Appellant amount to ‘Export of Services’ and not ‘Intermediary Services’.
The learned Commissioner (Appeals) was wrong in remanding the matter back to the Adjudicating Authority; accordingly, the impugned order is set aside - appeal allowed.
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2024 (9) TMI 840
Refund of service tax paid - input services - service tax paid on input services used for export of ‘Cut and Polished Diamonds’ for the period October, 2015 to March, 2016 refundable in terms of N/N. 41/2002-S.T. dated 29.06.2012 or not - denial of CENVAT Credit.
Refund of service tax paid - input services - service tax paid on input services used for export of ‘Cut and Polished Diamonds’ for the period October, 2015 to March, 2016 refundable in terms of N/N. 41/2002-S.T. dated 29.06.2012 or not - HELD THAT:- On perusal of the notification under which refund of service tax has been claimed, it transpires that the refund is being allowed in respect of service tax paid on the specified services used in respect of export of goods at the prescribed schedule of rates, subject to fulfillment of the conditions mentioned in clause (a) to (h) of paragraph 1; clause (a) to (h) of paragraph 2. It is the fact on record, that the original authority had scrutinized the refund claim filed 30.09.2016 and after recording the findings that the appellants have followed all the prescribed procedure and have also fulfilled all the conditions of the said Notification dated 29.06.2012, had sanctioned the refund.
In order to claim the refund of service tax paid on the input services on export of goods as per the Notification No.41/2012-S.T. dated 29.06.2012, the only requirement in respect of the address of the appellants-exporter is that they should have taken registration as exporter with the Export Promotion Council sponsored by Ministry of Commerce which in the present case is the Gem & Jewellery Export Promotion Council. Further, the appellants-exporter have also registered with the jurisdictional Service Tax authorities vide Service Tax registration No.AAAFL0356LST001. Hence, it is found that the requisite conditions for registration of the details with the departmental authorities have been duly fulfilled in the case.
CENVAT Credit - denial on the ground that the address mentioned in the invoices were not the registered address of the appellants - HELD THAT:- It is found from the records of the case that an application for change of address in ST-2 Certificate issued for the appellants earlier, was made by them to the jurisdictional Service Tax authorities through online on 04.04.2014 and in physical form of letter dated 28.04.2014. This has been duly received by the department by acknowledging it on 29.04.2014, for single premises at their new address viz., “GE-2022, 2nd Floor, Bharat Diamond Bourse, Bandra Kurla Complex, Bandra (East), Mumbai – 400 051”. Further, it is also found that the said new address as above was also duly incorporated in the ST-2 certificate. Further, there is no dispute with respect to use of input service in the provision of final products being exported; except for the procedural aspect with respect to correct address.
Hon’ble Madras High Court have held in the case of COMMISSIONER OF SERVICE TAX-III, CHENNAI VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, CHENNAI & M/S. SCIOINSPIRE CONSULTING SERVICES (INDIA) PVT LTD, CHENNAI [2017 (4) TMI 943 - MADRAS HIGH COURT] have held that right of the exporter for refund cannot be denied on account of not correlating the location of registered address.
Thus, where the appellants-exporter have duly registered their address and the change in the address duly incorporated in the ST-2 Service Tax Registration Certificate, there are no merits in the impugned order to the extent of denying refund of input service tax paid in respect of export goods.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 839
Refund of Service tax - input service used in export of goods - services provided by the Commission- Agency located outside India - N/N. 41/2007-S.T. dated 06.10.2007,- as amended - period April- 2008 to December, 2008 - time barred or not - HELD THAT:- There is an established internationally acceptable principle that taxes and duties should not be exported, to enable a level playing field in the international market for exports. Hence, indirect taxes on inputs and input services are to be refunded or rebated/reimbursed. As a number of input services are used in export of goods, the Government had provided a mechanism for such refund/remission of service tax involved in such exports.
On plain reading of the instructions of the Ministry of- Finance dated 17.04.2008, it transpires that service tax paid on input services used in exports are required to be refunded by a mechanism provided therein. Such refund of service tax paid was introduced as trade facilitation measure with an aim to expeditiously process and sanction the refund claims, by allowing the exporters to file periodically (for each quarter) and with close monitoring at the highest level in the CBEC’s field formations - The second notification dated 07.07.20209 further facilitated by specifically including a number of taxable services for which refund claims can be submitted by exporters and the time period for filing such refund claims was made for longer period of one year from the date of export of the relevant export of goods. It is also found that ‘service provided by a commission agent located outside India and engaged under a contract or agreement or any other document by the exporter in India, to act on behalf of the exporter, to cause sale of goods exported by him’ is covered under the taxable category of sub-clause (zzb) of Section 65(105) of the Finance Act, 1994 and it was provided as one of the eligible services on which refund is permitted in the aforesaid notifications.
Since there was certain doubts raised about the applicability of the superseding notification to the past exports made during the application of the earlier notification dated 06.10.2017, the Government had issued instructions on 01.01.2010 by clarifying that such refund benefits should be extended to those exports covered in the earlier period also - On careful perusal of the aforesaid instructions, it transpires that the Government had provided the refund of service tax involved in respect of exports, as a nature of benefit by simplifying the scheme further in providing certain minimum conditions such as (i) filing of refund claims within stipulated one year period, and (ii) that such refund claim has not been filed earlier with the departmental authorities.
On perusal of the refund application dated 31.03.2010 filed by- the appellants, it is clearly seen therein that at Sl. No.6, they have specifically declared that no refund on this account has been claimed- or received by them earlier. Further, for the refund relating to the period April, 2009 to June, 2009 i.e., quarter ending 30.06.2009, the appellants have filed the refund on 31.03.2010, i.e., within stipulated- one year period. Thus, on account of both the conditions stipulated in the instructions dated 01.01.2010, the appellants fulfill the requirements for sanction of refund claim made before the departmental authorities. Further, there was no finding that these conditions have not been fulfilled by the authorities below in the impugned order.
There is no merit in the impugned order to the extent that it had denied the refund claim of Rs.16,17,016/- by upholding the original order dated 06.01.2016. Accordingly, the impugned order dated 18.05.2018 is liable to be set aside as being factually incorrect and not legally sustainable.
The impugned order dated 18.05.2018 is set aside - Appeal allowed.
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2024 (9) TMI 838
CENVAT Credit - input service - outward transportation service - period from 1st April, 2006 to 31st October, 2007 - HELD THAT:- The issue is also settled by the Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE, BELGAUM VERSUS M/S. VASAVADATTA CEMENTS LTD. [2018 (3) TMI 993 - SUPREME COURT], wherein the Hon’ble Supreme Court has held 'Thus from 1-4-2008, with the aforesaid amendment, the Cenvat credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be.'
As the issue has already been settled up to 01.04.2008, the assessee is entitled to claim the cenvat credit on outward goods transportation service up to the place of removal.
Thus, the appellant is entitled to take the cenvat credit on outward transportation service. Accordingly, the demand confirmed in the impugned order is set aside and no penalty is imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 778
Refund along with interest on delayed payment of refund under Section 11BB of Central Excise Act, 1944 - principles of unjust enrichment - Section 11B(1) of the Central Excise Act, 1944 - HELD THAT:- The Ld. Commissioner (Appeals) after analyzing Rules 6(3) of the CCR Rules and Rule 6(6A) has held that Rule 6(3) does not refer to the duty of excise or service tax. The word used is 'amount' and not 'duty' or tax and further the amount so payable is not available as input tax credit to the recipient and therefore, the amount payable under Rule 6(3) CCR Rules is not “Service tax” payable under Section 66 of the Finance Act and further the Ld. Commissioner has held that the doctrine of unjust enrichment is not applicable in availing the Cenvat Credit or in case of refund of Cenvat credit as mandated under Section 11B(2)(c) of CE Act.
The denial of refund claim of the amount wrongly paid is in violation of Article 265 of Indian Constitution. As regards the claim of unjust enrichment, the respondent has proved that no tax has been charged from SEZ unit. The invoices issued to SEZ units along with sample copies of tax invoice shows that no service tax was charged from SEZ unit. The respondent has proved that the amount of refund claim has actually been borne by them and sanctioning of the refund would not amount to unjust enrichment.
The erroneous payment of the duty/tax under mistake of law would not attract provisions of unjust enrichment as provided in Section 11B of Central Excise Act.
There are no infirmity in the impugned order which is upheld by dismissing the appeal of the Revenue - appeal dismissed.
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2024 (9) TMI 777
Non-payment of service tax - sales commission under the category of business auxiliary service - Demand of Service Tax in respect of sales promotion expenditure - Demand under the head of ‘other charges’ under reverse charge mechanism - period from 01.10.2007 to 31.03.2012 - suppression of facts or not - time limitation.
Demand of Service Tax under the head of sales commission under the category of business auxiliary service - Suppression of facts or not - time limitation - HELD THAT:- It is observed that this demand has been raised for the period from 2007-08 to 2010-11 and the show cause notice was issued only on 18.04.2013 beyond the normal period of limitation; the appellant has been filing returns regularly and declaring about the expenditure incurred towards foreign currency in their Annual Financial Statements - the issue is revenue neutral as the service tax paid under reverse charge would be available to the appellant as credit to them. When the issue is revenue neutral, extended period of limitation cannot be invoked to demand Service Tax from the assessee - the demand of Service Tax confirmed by invoking the extended period of limitation is not sustainable.
Demand of Service Tax in respect of sales promotion expenditure - time limitation - HELD THAT:- Most of the expenses are in the form of discounts / bonuses offered on account of sale and related purchase of goods. There is no evidence brought on record by the Revenue to show that these expenses were incurred by the appellant towards receipt of any ‘service’, for demanding Service Tax from the appellant under reverse charge mechanism - Further, the fact is noted that all these details have been declared by the appellant in their financial statements. Hence, the extended period of limitation cannot be invoked to demand Service Tax under this head - the demand of Service Tax confirmed under the head of ‘sales promotion expenses' is not sustainable, on merits as well as on limitation.
Demand under the head of ‘other charges’ under reverse charge mechanism - HELD THAT:- The appellant has disclosed the expenses in foreign currency under this head in their financial statements. The impugned order has not demanded service tax on this amount under any particular category of service. It is also observed that the Department has failed to bring any evidence on record to show that these have been incurred towards the receipt of any service, to demand Service Tax under reverse charge mechanism from the appellant. Accordingly, the demand of Service Tax under this head is not sustainable.
The demands of Service Tax confirmed in the impugned order are not sustainable and accordingly, the same are set aside - Appeal allowed.
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2024 (9) TMI 776
Time limitation - Failure to discharge Service Tax liability on Transportation of Goods by Road (GTA) Services on reverse charge mechanism basis - N/N. 04/2010-S.T. dated 27.02.2010 - HELD THAT:- Admittedly, the appellant is a corporation incorporated by the Government of Bihar. They have been carrying on the activity of receiving and storing food grains.
This issue had come up before the Hon’ble Gujarat High Court in the case of GUJARAT PULSES MANUFACTURING ASSOCIATION AN ASSOCIATION OF PULSE MILLS VERSUS UNION OF INDIA [2018 (5) TMI 1424 - GUJARAT HIGH COURT] wherein the Hon’ble High Court held 'across the country, the trade did not pay service tax on transportation of Tur Dal till 2010 nor did the department raise any demand disputing the interpretation of the trade that the product Tur Dal was already included in the exemption notification. That being the position, nowhere the non-payment of tax can be co-related to fraud, collusion, wilful misstatement, suppression of facts or contravention of the statutory provisions by the petitioner with the intent to evade payment of duty. The show cause notices thus which seek to levy such duty for the period beyond the normal period of eighteen months of limitation therefore, cannot survive.'
The appeal is allowed on the ground of limitation itself, without going into the merits of the case - appeal disposed off.
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