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Service Tax - Case Laws
Showing 41 to 60 of 30277 Records
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2024 (11) TMI 549
Payment of interest on delayed refund of service tax - beyond the expiry of three months from the date of filing of refund application for the first time, by the appellant on 29.06.2007 - second round of litigation before the Tribunal - HELD THAT:- The question with regard to payment of interest on delayed refund is categorically covered in terms of Section 11BB of the Central Excise Act as made applicable to service tax matters.
The provisions concerning payment of interest on delayed refund automatically get attracted 3 months from the date of the order of the Tribunal permitting the said refund claim. This however automatically rolls back for the purpose of this Section under Sub-section 2 of Section 11B. The explanation to Section 11BB has nothing to do with the postponement with the said date.
As it is an undisputed fact that the refund application was filed by the appellant on 29.06.2007, the appellant is entitled to payment of interest at applicable rates, three months from the said date of receipt of the said refund application, till the time the same was paid.
The order of the Commissioner (Appeals) is set-aside and the appeal succeeds on merits. The revenue is directed to make good the shortfall in interest amount paid to the appellant.
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2024 (11) TMI 528
Service tax for Flying Training Institutes - Maintainability of the writ petition on the ground that an alternate remedy is available - Correctness of Instruction dated 11.05.2011 issued by the Director, Service Tax under the Ministry of Finance through its Department of Revenue - declaration that Course Certificate being issued by Flying Training Institutes cannot be held as “recognized in law” for the purposes of exemption from paying service tax - time limitation - as decided by HC [2023 (12) TMI 439 - BOMBAY HIGH COURT] court ruled in favor of the petitioner, setting aside the Instruction dated 11.05.2011, the show cause notice dated 18/21.10.2013, and the order dated 24.12.2014. The petitioner was entitled to a refund of the service tax paid under protest.
HELD THAT:- There is gross delay of 237 days in filing the Special Leave Petition. The reasons assigned are neither satisfactory nor sufficient in law so as to be condoned.
Hence, the application seeking condonation of delay is dismissed. Consequently, the Special Leave Petition also stands dismissed.
The question of law, if any, is kept open. Pending application(s), if any, shall stand disposed of.
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2024 (11) TMI 527
Notice issued for re-initiating the adjudication proceedings in respect of the Show Cause Notice as barred by limitation u/s 73 (4B) (a) and (b) of the Finance Act, 1994 - HELD THAT:- As there has been a gross delay on the part of the respondents in proceeding with the impugned SCN. As noted above, the concerned authority had taken no steps after 21.10.2009 till transferring of the case in the Call Book on 16.12.2015. Thus, even if it is accepted – which this Court does not – that the Call Book procedure is permissible in law, the delay in adjudication of the present case clearly exceeds a reasonable period. Therefore, reinitiation of the proceedings are required to be set aside.
Section 73 of the Act as applicable prior to 06.08.2014 did not provide any specified time for determining the service tax payable. By virtue of Finance (No. 2) Act, 2014, Sub-section (4B) was introduced in Section 73 of the Act with effect from 06.08.2014.
By virtue of Section 73 (4B) of the Act, the Adjudicating Authority is required to determine the amount of service tax due within a period of six months or one year from the date of notice as the case may be. However, there does not mean that the adjudication of Show Cause Notices issued prior to 06.08.2014, could remain open indefinitely.
It is settled law that in absence of any specific time period prescribed for conclusion of proceedings, the same are required to be concluded within a reasonable period.
In Union of India v. Citedal Fine Pharmaceuticals [1989 (7) TMI 100 - SUPREME COURT] had rejected the challenge to Rule 12 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 as unreasonable and violative of Article 14 of the Constitution of India, inter alia, on the ground that it did not provide for any period of limitation for recovery of duty.
In Sanghvi Reconditioners (P.) Ltd. v. Union of India [2017 (12) TMI 906 - BOMBAY HIGH COURT] had held that larger public interest requires the Revenue and its officials to adjudicate the Show Cause Notice as expeditiously and within a reasonable period of time.
In the present case, it is apparent that the Show Cause Notice dated 24.10.2008 (the impugned SCN) has not been adjudicated within a reasonable period of time. More than 14 years have elapsed since issuance of the impugned SCN. It is also relevant to note that part of the demand sought to be raised pertain to a period more than twenty years prior to date of the impugned SCN.
Clearly, the adjudication proceedings are now barred by limitation.The impugned notice dated 21.08.2023 is set aside. The respondents are restrained from proceeding with the initial impugned SCN.
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2024 (11) TMI 526
Classification of services - provision of ‘online information and database access or retrieval’ [OIDAR] service defined under section 65(75) of the Finance Act and made taxable under section 65(105)(zh) of the Finance Act - to be treated as 'support services of business or commerce' (BSS) or 'online information and database access or retrieval' (OIDAR).
HELD THAT:- The order accepts the contentions of the appellant and holds that to be covered under OIDAR service, data or information belonging to the service provider should be provided to the service receiver but the appellant did not provide any data or information owned by Verio USA as Verio USA only provided infrastructure facilities in the form of server space and other facilities which are necessary for the appellant to store the data. Accordingly, the order holds that services provided by Verio USA to the appellant are not taxable under OIDAR service. However, the order proceeds to hold that such services are in the nature of infrastructure support and are taxable under BSS.
Thus, the order has confirmed the demand under BSS though the demand made in the show cause notice is for OIDAR service.
A show cause notice is the foundation and since, the taxability under BSS was not proposed in the first show cause notice, the demand could not have been confirmed under the said category.
In this view of the matter the demand confirmed under BSS cannot be sustained.
It would, therefore, not be necessary to examine the contention advanced by the learned counsel for the appellant that even otherwise the services received by the appellant are not taxable under BSS.
Demand of service tax under advertising service for the period after 18.04.2006 - As submitted by learned counsel for the appellant that the amount that has been appropriated is Rs. 54,09,868/- but the amount paid towards service tax on advertising service is Rs. 43,25,505/- and Rs. 1,27,004/- on the service received from Minik Enterprises. Thus, the total amount of service tax that was paid is Rs. 54,52,509/- but only an amount of Rs. 54,09,868/- has been appropriated. According to the learned counsel for the appellant, there is a short fall of Rs. 42,641/- in appropriation,
Appellant also submitted that an amount of Rs. 20,17,511/- has been paid in excess on advertising service and, therefore, it may also be adjusted towards or refunded to the appellant.
The aforesaid errors that have been pointed out by the learned counsel for the appellant can be pointed out by the appellant to the Commissioner by moving an appropriate application and in case such an application is filed, the Commissioner shall examine the same and pass an appropriate order.
Penalty under section 78 of the Finance Act on the demand of service tax with respect to issue at serial no. 1 - The issue as to whether the demand of Rs. 1,68,440/- can be sustained or not is being remitted to the Commissioner. The imposition of penalty under section 78 of the Finance Act will, therefore, depend upon the decision to be taken by the Commissioner. This issue of penalty will, therefore, also have to be examined by the Commissioner.
Benefit of section 80 of the Finance Act permitting waiver of penalty should also be extended to the appellant. This issue can also be examined by the Commissioner.
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2024 (11) TMI 525
Demand of service tax invoking extended period of limitation - Service tax as payable on generator charges under the category of "renting of immovable property service" and car renting and maintenance charges under the category of "rent-a-cab service"
Generator Charges - HELD THAT:- We find that the generator charges has been recovered by the appellant from the tenant for power cuts/failures, when there is a electricity failure. This electricity charges have been recorded by the appellant as providing electricity to that tenant from whom the appellant has lesser provider as a lessee. As the generator is owned by the appellant, therefore, the renting expenses are paid by the appellant and as the generator is a movable property, it can be put anywhere in the building. Therefore, the generator cannot be termed as “Immovable Property”. Accordingly, the same is not liable to pay service tax as the generator charges are under the category of “renting of immovable property service”. Therefore, the appellant is not liable to pay service tax on the generator charges under the category of “renting of immovable property service”.
Rent-a-cab Service - With regard to demand under the category of “rent-a-cab service”, we find that the appellant is not engaged in the business of rent-a-cab service. Moreover, the appellant is recovering the amount for day to day for maintenance charges of vehicle of car renting, which is owned by the appellant for their own firm, wherein the appellant is one of the partner. In that circumstances, we hold that the appellant is not engaged in the business of rent-a-cab service. Therefore, no service tax is leviable under the category of “rent-a-cab service”.
As the demand of service tax is not sustainable against the appellant, no penalty can be imposed on the appellant.
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2024 (11) TMI 524
Demand of service tax - violation of the principle of natural justice - service tax liability was calculated on the basis of third party information received from the income tax department for the financial year 2014-15 & 2015-16, in which the appellant had reflected gross receipts as per FORM 26AS u/s 194H (Commission or Brokerage Service) of Income Tax, 1961 of the financial year resulted in short payment of service tax
HELD THAT:- While passing the Order-in-Original the adjudicating authority has not considered the reply of the appellant which was duly filed and thereby violated the principles of natural justice. It appears that the adjudication order was passed without considering the reply of the appellant and it has been copy pasted from some other order wherein the service tax demand was only Rs. 2,85,148/- . It is a settled law that any order in violation of the principles of natural justice is non-est.
We are of the considered opinion that this matter needs to be remanded back to the Original Authority, therefore, we set aside the impugned order and remand the matter back to the original authority with a direction to pass a fresh order after complying with the principles of natural justice and after affording adequate opportunity of hearing to the appellant and thereafter pass a reasoned order.
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2024 (11) TMI 475
Demand of service tax - amount received as the consideration due to cancellation of an agreement - declared service as per section 66 (E) (e) of Finance Act 1994 or not? - Obligation to refrain from an act, or to tolerate (e) an act or a situation, or to do an act - invoking the extended period of limitation - “Whether the appellant is providing the declared service contemplated under section 66 (E) (e) of Finance Act which became taxable w.e.f. 1st July, 2002”?
HELD THAT:- When a contract has been broken, the party who suffers by such breach is entitled to receive, form the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss of damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract: When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Section 73 & 74 of Chapter VI of Indian Contract Act provides for compensation of loss or damage caused by breach of contract. Section 75 of Contract Act talks about compensation for party rightfully rescinding the contract.
Apparently there were executed the agreements to purchase land which are absolutely out of the scope of service tax. Cancellation of these agreements has been made as per mutual consent of buyer/appellant and the sellers of eight ‘Agreements to Sell’ subject to compensation to be paid to buyer of such amount as specifically agreed between the parties. These facts when read in the light of above discussion are sufficient for us to hold that the amount of compensation received by the appellant is not an amount for any act of obligation or toleration on part of appellant. Hence is wrongly held to be the amount of consideration for rendering declared service defined under section 66 E (e) of Finance Act, 1994.
Liability has been fastened upon the appellant under Section 65B read with Section 66E(e) of the Finance Act for the period from July 2012 till March 2016 for the reason that by collecting the aforesaid amounts the appellant had agreed to the obligation to refrain from an act or to tolerate the non-performance of the terms of the contract by the other party.
Similar issue has been considered and settled in favour of the assessee, in the order in the case of M/s. South Eastern Coalfields Ltd. [2020 (12) TMI 912 - CESTAT NEW DELHI] held that service tax could not have been demanded from the appellant.
In this connection it would also be pertinent to refer to the Circular dated 3-8-2022 issued by the Department of Revenue regarding applicability of goods and service tax on liquidated damages, compensation and penalty arising out of breach of contract in the context of ‘agreeing to the obligation to refrain from an act or to tolerate an act or a situation, or to do an act’. This Circular emphasizes that there has to be an express or implied agreement to do or abstain from doing something against payment of consideration for a taxable supply to exist and such an act or a situation cannot be imagined or presumed to exist merely because there is a flow of money from one party to another. It also mentions that unless payment has been made for an independent activity of tolerating an act under an independent arrangement entered into for such activity or tolerating an act, such payment will not constitute ‘consideration’ and such activities will not constitute ‘supply’.
Act of entering into sale cancellation agreement is not an act of rendering taxable declared service. Any amount received as damages, in lieu thereof, cannot be called as the taxable value. We draw our support from the decision of Hon’ble Apex Court in the case titled as Union of India vs. Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT]
Since the appellant has not rendered any activity which can be called as taxable declared Service, no question arises of any alleged evasion of service tax. We hold that extended period as has been invoked while issuing the impugned Show Cause Notice is also wrong. We don’t find any positive evidence to support the alleged suppressions of facts on part of the appellant. The Show Cause Notice is held to be barred by time. Accordingly, the order under challenge is hereby set aside and the appeal is hereby allowed.
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2024 (11) TMI 474
Classification of services - Service tax on the services provided by the appellant as a sub-contractor - show cause notice has been issued to the appellant is that the appellant have worked as a sub-contractor in respect of laying of the pipeline for water supply and drainage which falls under the service category of erection, commissioning and installation service and therefore, the appellant should have paid the Service Tax on the services provided by them to their principles - HELD THAT:- As we are of the view that services provided by the appellant to Shri Hindustan Fabricators sub-contractor in laying of the water supply pipeline and drainage pipeline, the demand raised in the impugned show cause notice does not survive. However, we take note of the fact that the appellant have also provided services to various other private parties.
We are of the view that nature of services provided to this firm to other parties have not been discussed clearly in the impugned Order-In-Original and therefore, we are of the view that original Adjudicating Authority need to decide the matter afresh keeping in mind the decision of this Tribunal in case of M/s. Skyway Construction [2024 (6) TMI 1332 - CESTAT AHMEDABAD].
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2024 (11) TMI 473
Service tax leviability on penalty for not completing the contract within the stipulated time period - Obligation to refrain from an act or to tolerate an act or a situation - Declared Services - Whether the penalty recovered from the contractors for not completing the work/ contract within a stipulated time is liable to service tax as a declared service u/s 66 E (e)? - HELD THAT:- As per the plain reading of the above declared service under-sub Clause (e), the activity of not completing the contract within the stipulated time period as provided under contract does not fall under the aforesaid entry. It is a penalty which is imposed on the contractor for not completing the work within the stipulated time period. Therefore, such penalty is not the consideration towards any service. Accordingly, the same does not fall under the declared service as provided u/s 66 E (e) of Finance Act, 1994. This issue is no longer res-integra in the light of the decision cited by the appellant in the case of South Eastren Coalfields Ltd. [2020 (12) TMI 912 - CESTAT NEW DELHI] it is clear that penalty towards non fulfillment of the condition of the contract will not fall under Section 66 E (e) of Finance Act, 1994, therefore the service tax under the said declared service cannot be recovered. Accordingly, service tax demand on this ground is set aside.
Service tax on consideration recovered from the employees who have not complied with the condition of giving sufficient notice before leaving the job - This issue is also not res-integra as the same has been decided in the case of GE T & D INDIA LIMITED [2020 (1) TMI 1096 - MADRAS HIGH COURT] the employer cannot be said to have rendered any service per se much less a taxable service and has merely facilitated the exit of the employee upon imposition of a cost upon him for the sudden exit. The definition in clause (e) of Section 66E as extracted above is not attracted to the scenario before me as, in considered view, the employer has not 'tolerated' any act of the employee but has permitted a sudden exit upon being compensated by the employee in this regard.
Though normally, a contract of employment qua an employer and employee has to be read as a whole, there are situations within a contract that constitute rendition of service such as breach of a stipulation of noncompete. Notice pay, in lieu of sudden termination however, does not give rise to the rendition of service either by the employer or the employee.
Towards conclusion raises the plea of availability of alternate remedy. However, since the matter involves an interpretation of the statutory provision in the light of undisputed facts available on record, we see no need to relegate the petitioner to statutory appeal. This plea is also rejected.
The demand is not sustainable. Accordingly, the impugned order is set aside, appeal is allowed.
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2024 (11) TMI 472
Appeal filed with a delay of 19 days - reason for delay was that there was confusion in date of receipt of the Order-In-Original - HELD THAT:- We find that Commissioner (Appeals) has rejected the appeal by rejecting the condonation of delay only on the ground that the appellant being a professional company was not supposed to delay in filing the appeal and they were suppose to file within the normal period of 60 days.
This reasoning of Commissioner (Appeals) is weird and absurd, if this reason is accepted which in our view is completely against the statute which provide for condonation of delay, law is equal for all whether it is professional company or unprofessional company or any individual.
Therefore, only deciding the condonation delay application considering the status of the company is clearly with a prejudiced mind. Therefore, we do not accept the reason given by the Commissioner (Appeals) for rejecting the appeal on ground of time bar.
Accordingly, we set aside the impugned order and remand the matter to the Commissioner (Appeals) to decide before him on merit without going into the matter of delay in filing the appeal before him.
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2024 (11) TMI 471
Cenvat Credit of Service Tax on the insurance premium paid to Deposit Insurance Credit Guarantee Corporation ["DICGC”] - commission paid to the brokers for underwriting the government security etc. and for making investments in securities to maintain mandatory Statutory Liquid Ratio in accordance with Banking Regulation Act, 1949 - HELD THAT:- The referral Bench has referred the issue to the Larger Bench because according to them the decision in South Indian Bank [2020 (6) TMI 278 - CESTAT BANGALORE - LB] has been passed without considering the decision of the Hon’ble Constitution Bench of the Supreme Court in the matter of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT]. It also observed that the decision of the Hon’ble Karnataka High Court in the matter of Commissioner vs. PNB Metlife Insurance Co. Ltd. [2015 (5) TMI 68 - KARNATAKA HIGH COURT] relied upon by the Larger Bench in the matter of South Indian Bank [2020 (6) TMI 278 - CESTAT BANGALORE - LB], has been rendered much prior to the decision of Dilip Kumar [2018 (7) TMI 1826 - SUPREME COURT] therefore the said referral Bench was not in agreement with the interpretation of the provisions given by the Larger Bench in the matter of South Indian Bank [2020 (6) TMI 278 - CESTAT BANGALORE - LB]
Since now the Larger Bench vide its interim order in the matter of Bank of America v. Principal Commr., Mumbai [2024 (4) TMI 1149 - CESTAT MUMBAI] has confirmed the decision of the Larger Bench in the matter of South Indian Bank [2020 (6) TMI 278 - CESTAT BANGALORE - LB] and held that the earlier decision of Larger Bench needs no reconsideration, therefore we have no hesitation in holding that the issues involved herein are no longer res integra and is covered by the decision of Larger Bench in South Indian Bank (supra).
There is no information about any further appeal filed by revenue against the aforesaid decision of the Hon’ble Kerala High Court therefore it attained finality.
Since the decision of the Larger Bench of the Tribunal in South Indian Bank [2020 (6) TMI 278 - CESTAT BANGALORE - LB] has been upheld by two Hon’ble High Courts coupled with the fact that the another Larger Bench of the Tribunal in the instant Appeals vide Interim order [2024 (4) TMI 1149 - CESTAT MUMBAI] has once again upheld the decision in the matter of South Indian Bank [2020 (6) TMI 278 - CESTAT BANGALORE - LB], therefore it can safely be concluded that the insurance service received by the appellants from the DICGC which covers a substantial portion of Cenvat Credit in issue herein, qualifies as an input service under the provisions of Rule 2(l) of the Cenvat Credit Rules, 2004.
Commission/brokerage paid to brokers for underwriting government securities or for making investments in securities to maintain mandatory statutory liquid ratio and all other remaining issues - There is no dispute that as per Reserve Bank of India’s regulations, the banks are required to comply with the cash reserve ratio (CRR) and Statutory Liquid Ratio (SLR) and in order to maintain money supply according to the monetary policy of India from time to time. This activity cannot be separated from the ‘banking and financial service’ by bank to its customers since it is a statutory requirement. Tribunal in the matter of South Indian Bank (supra) has held that any activity, without which the existence of the assessee as provider of taxable service is jeopardized, cannot but be an essential input service and is eligible for credit.
The same view is also followed by this Tribunal in the matter of Bank of Baroda Ltd. [2021 (9) TMI 536 - CESTAT MUMBAI]. In our opinion such services, which are necessary to fulfill statutory obligation, would certainly be qualified as input services and in the light of the settled legal position, we are of the view that the appellant is entitled for the Cenvat credit of the service tax paid by them for such services including the payment made to the brokers.
Appellant-Bank of America, National Association has also made a submission that they have paid the service tax amount alongwith applicable interest even before the issuance of show cause notice in relation to the inadvertent availment of Cenvat Credit for a brief period but still the penalty has been imposed on them. This fact has not been denied anywhere by revenue, therefore we are of the view that in terms of Section 73(3) of the Finance Act, 1994 no penalty is to be imposed when short paid Service Tax is deposited alongwith interest prior to the issuance of show-cause notice. Therefore as the payment of service tax along with applicable interest has already been deposited before the issuance of show cause notice the penalty of Rs.25.53 lakhs is not liable to be imposed on the appellant and is accordingly set aside.
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2024 (11) TMI 408
Extended period of limitation invoked - Service tax liability in respect of the tax period from the year 2007-2010 - invoking the provision of Section 73 (1) of the Finance Act, 1994 - SCN issued was beyond the specified period or not? - as alleged that since the assessee had failed to produce the supporting document before the CERA audit team, it appeared that the assessee had availed CENVAT credit on input services without fulfilling the conditions as prescribed under Rule 9 of the CENVAT Rules.
HELD THAT:- There is no allegation against the assessee of any statutory contravention with an intent to evade tax. The case of the Revenue is solely premised on the basis that there was suppression of facts on the part of the assessee. Clearly, not producing the documents, which may be necessary for substantiating a claim, does not fall in the exception of “suppression of facts”. In any view of the matter, no express allegations were made in the SCN to the said effect.
This Court in an earlier decision of M/s EMAAR MGF Land Ltd. [2023 (2) TMI 613 - DELHI HIGH COURT] concurred with the learned CESTAT that the extended period of limitation was not correctly invoked as the intent to evade tax was neither established nor evident in the given facts.
No infirmity with the decision of the learned CESTAT in rejecting the Revenue’s contention that it was entitled to invoke the extended period of limitation in terms of the proviso to Section 73 (1) of the Act.
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2024 (11) TMI 407
Entitlement to make the pre-deposit of Duty, payable under the old Central excise regime, as per the requirement of the section 35F of the Central Excise Act by debiting, the electronic cash ledger under the CGST regime - HELD THAT:- We observe that this issue has already been decided by M/s. Jyoti Construction [2021 (10) TMI 524 - ORISSA HIGH COURT] wherein it has been held that it is not possible to except the plea of the petitioner that ‘output tax’ as defined under section 2(82) of the CGST Act could be equated to the deposit required to be made in terms of section 107(6) of the CGST Act.
Pursuant to these directions, Central Board of Indirect Taxes and Customs vide Instruction No. 14/2022 dated 28.10.2020 as clarified that payments through DRC-03 under CGST regime is not a valid mode of payment for making pre-deposits under Section 35F of the Central Excise Act, 1944 and Section 83 of Finance Act, 1994 read with Section 35F of the CEA. There exists a dedicated CBIC-GST integrated portal, https://cbic-gst.gov.in which should only be utilized for making pre-deposits under Central Excise Act, 1944 and the Finance Act, 1994.
We answer the above framed question in favour of the department and against the appellant. Resultantly, the condition of making payment of amount of pre-deposit in terms of Section 35F remains non-complied with. The matter remains defective. However, in the interest of justice, one more opportunity is given to the appellant to do away the said defect.
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2024 (11) TMI 406
Calculating the proportionate credit attributable to exempted services under Rule 6(3A)(c) of CCR, 2004 - whether total credit availed in a financial year would include credit on taxable services also or only credit availed on common input services is to be considered? - As alleged that the factor ‘P’ in the formula denotes the ‘total cenvat credit taken on input services during the financial year’ was not limited to the common input services on which credit has been availed but also the credit exclusively attributable to taxable service also in the total cenvat credit taken by the appellant during the financial year
HELD THAT:- We find that this Tribunal in a series of cases, interpreting the provisions of Rule 6(3) of CCR, consistently held that the factor ‘P’ referred to in the said formula cannot be considered to mean the total cenvat credit taken in a financial year would also include credit taken on input services and exclusively utilised in providing taxable output services; thus, only the credit taken on common input services which are utilised in providing both taxable as well as exempted services to be considered for arriving at the proportionate credit attributable to exempted services when common input services are utilised for providing both taxable as well as exempted services.
As decided in M/S. THYSSENKRUPP INDUSTRIES INDIA PVT. LTD. VERSUS COMMISSIONER OF CE & ST, PUNE-I [2023 (2) TMI 1343 - CESTAT MUMBAI] main basis on which the demands were raised in both the Show Cause Notices have already been dropped by the adjudicating authority since the appellant had reversed proportionate amount of credit. Only the computation of the amount to be reversed is in dispute. The adjudicating authority has erred in (a) taking the total turnover of traded goods as the value of trading service instead of following Explanation 1(c) to Rule 6 to calculate the value of trading service; (b) For the periods covered in both appeals, the adjudicating authority has erred in reckoning the total credit taken instead of credit on common input services in calculating the amount of credit required to be reversed. The impugned orders, therefore, cannot be sustained.
Undisputedly and admittedly appellant has reversed/ paid the amount of the CENVAT Credit attributable to trading activities as per the prescribed formula in Rule 6(3A) as interpreted in the above referred orders. The fact of reversal is also noted in the impugned orders. Appeal allowed.
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2024 (11) TMI 405
Service tax demand on appellant being a subcontractor of main contractor provided services in the SEZ - service tax demand was made on the ground that appellant is not entitled for exemption Notification No. 09/2009- ST dated 03.03.2009 as amended by Notification No. 15/2019-ST dated 20.05.2019 on the ground that the appellant have failed to provide declaration in form A-1 and A-2. Further, Rule 10 of SEZ Rules, 2006 does not extent the benefit to the subcontractor for the SEZ unit
HELD THAT:- The parent Act i.e. SEZ Act itself grant exemption but all these observation were brushed aside by the adjudicating authority. We find that the appellant being a sub-contractor cannot be expected to obtain a A1, A2, the same has been obtained by main contractor, since, direct dealing of the main contractor with SEZ unit. Therefore, expecting form the sub contractor all the procedure to be followed is incorrect. The main criteria for granting the exemption is that the service should be provided in the SEZ unit which is not under the dispute in the present case. Once this fact is established, then not only service is exempt under Notification No. 09/2009- ST dated 03.03.2009 but also not taxable in terms of the Section 51 read with Section 26 of the SEZ Act
It is settled that when subcontractor provided the service on behalf of the main contractor in the SEZ, the same is exempted from payment of service tax. Thus, the appellant is not liable to pay service tax.
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2024 (11) TMI 404
Classification as declared service u/s 66E(e) of the Finance Act as “agreeing to the obligation to tolerate an Act” and consequential liable to service tax or otherwise - interest charged by the appellant to their customer against the sale of the goods for delayed payment - appellant are a manufacturer of excisable goods and selling the same on principal to principal basis to their customers - HELD THAT:- From the judgments including the Apex Court, judgment in South Eastern Coalfields Ltd. [2023 (8) TMI 606 - SC ORDER] it is settled that penal interest charged for delayed payment cannot be liable to service tax under Section 66E(e) of Finance Act, 1994. Following the ratio of the above judgment in the present case also, the interest charged on the delayed payment of the sale proceed is not liable to service tax. Accordingly, we set aside the impugned order and allow the appeal with consequential relief.
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2024 (11) TMI 403
Service tax demand on municipality on the income received from the renting of immovable property - assessee argued service tax demand on the plea that the Srivilliputhur Municipality is a creature of an Act of the Tamil Nadu Legislature and is the statutory body being governed by the Tamil Nadu District Municipalities Act, 1920 and it is an autonomous self-government in terms of the Article 243Q of the Constitution of India.
HELD THAT:- We find that the issue involved has been squarely covered by the decisions rendered by this Tribunal in the case of The Commissioner, Krishnagiri and OtheRs [2024 (6) TMI 767 - CESTAT CHENNAI] as set aside only to the extent of demand of Service Tax on ‘Renting of Immovable Property service’ by allowing the appeal by way of remand to the Adjudicating Authority who is directed to pass fresh order in strict observance to the principles of natural justice.
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2024 (11) TMI 402
Quantum of demand based on gross receipt - benefit of tax value - invocation of extended period for issuing show cause notice - imposition of penalty, applicability of section 80 of the Finance Act, 1994 - HELD THAT:- There is no element of suppression or concealment on part of the appellant. Hence we hold that extended period of limitation is not invokable in the present case. The period in dispute is the year 2006 to 2012 and the Show Cause Notice has been issued on 23.04.2012. Hence it is only the period from 25.04.2011 to February 2012 which the normal period of limitation for serving SCN. The demand for rest of the prior period is therefore held barred by the period of limitation. It has already been observed that the appellant has already admitted his service tax liability and has deposited the amount demanded voluntarily. Hence we confirm the demand for the normal period and set aside the demand for the extended period.
The order under challenge/ Order-in-Appeal is upheld vis-à-vis normal period and rest is hereby set aside. Consequently, the appeal is partly allowed.
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2024 (11) TMI 401
Service tax demand confirmed in respect of the Goods Transport Agency (GTA) service rendered by the appellant on reverse charge basis - Assessee billed service tax on the GTA service in respect of 12 RA bills / invoices raised by them on the service recipient - appellant submits that the demand of service tax on this category from them is not sustainable as they are not the ‘persons’ liable to pay tax on this activity. They contend that in respect of GTA service, service tax under reverse charge mechanism is liable to be charged at the hands of the service recipient - HELD THAT:- The appellant has negated the allegation against them that they have collected service tax under the category of GTA service. Further, we observe that the charge in the show cause notice is that the appellant has billed the service tax amount in the 12 RA bills / invoices raised by them. However, there is no evidence adduced by the Revenue to substantiate the allegation that the appellant has actually 'collected' service tax. On the contrary, the appellant has submitted evidence to the effect that the service tax amount mentioned in the said bills / invoices are not collected, by producing the ledger accounts and also the Payment Advices, w.r.t. these 12 RA bills / invoices.
We observe that the demand of service tax cannot be confirmed on the basis of a single invoice without verification of all the invoices that too when this single invoice relied upon, belies the allegation of the Revenue. In this regard, we derive support from the judgment in the case of M/s. R.S. Ispat Pvt. Ltd. and Shri Radhe Shyam Agarwal, Director M/s. R.S. Ispat Pvt. Ltd. [2024 (9) TMI 176 - CESTAT KOLKATA].
Since, the appellant is not the ‘person’ liable to pay service tax under the category of GTA service and the evidence submitted by the appellant indicates that they have not collected service tax on this service and the appellant claims that the service recipient has already paid service tax on this category, we hold that the demand of service tax of Rs. 9.03 crores confirmed under the category of GTA service from the appellant, is not legally sustainable.
Reimbursable expenditure - demand pertains to procurement of HSD by the appellant in the case of exigency in terms of Clause 5.10 of the contract dated 14.05.2012 wherein such expenses of procurement are liable to be reimbursed by the service recipient - HELD THAT:- We observe that as per Clause 5.10 of the contract dated 14.05.2012, such expenses of procurement are liable to be reimbursed by the service recipient. We observe that this demand is legally not tenable upto 14.05.2015 in terms of Section 67 of the Finance Act, 1994, in view of the Apex Court judgement in the case of Union of India & Anr. Vs. M/s. Intercontinental consultants and Technocrats Pvt. Ltd [2018 (3) TMI 357 - SUPREME COURT].
Thus, we observe that there is no service tax liable to be paid on these expenditure for diesel reimbursed by the service recipient upto 14.05.2015 except to the above extent, which was already paid to the exchequer. In respect of the remaining transactions upto 14.05.2015, we observe that the appellant did not collect service tax from the service recipient since the same is not legally payable. The Revenue did not come up with any other evidence, except the above cited evidence, to substantiate that the appellant collected service tax on this count upto 14.05.2015. Accordingly, we hold that the demand of service tax of Rs. 4.78 crores confirmed in the impugned order on this count for the period upto 14.05.2015 is not legally sustainable.
Demand on advances - appellant submits that this is a double demand, wherein initially, when the advances were received, demands were raised on such advances, subsequently, service tax is demanded for the second time when they raised the final bill on the gross value– which value is inclusive of the said advance component - HELD THAT:- As per duly supported by documentary evidences, it is evident that the Revenue made out double demands on advances – once on advances per se and for a second time on the total gross values of the final bills / invoices, which values include the advance amounts and the appellant has been paid the remaining amount after adjusting the said advances from the final bills / invoices. This fact of double demand is corroborative from the said 3 Annexures – A3 to A5 themselves since there are separate columns therein for bill amounts as well as mobilization / work advances and tax liability is created against both the entries which liabilities are confirmed by the Ld. Adjudicating Authority. We, therefore, hold that the double demand confirmed in the impugned order is not legally sustainable.
Demand of service tax on supply of materials - as submitted that no service tax is payable on material supplied wherein CST has already been paid - HELD THAT:- This transaction is a pure supply of materials. However, in the impugned order, the nature of service has been indicated as Site Formation Service. In this backdrop, the appellant produced the related work order, invoice and a Chartered Accountant Certificate dated 10.03.2024, produced at the time of personal hearing. This documentary evidences submitted by the appellant reveals that material has been supplied in this transaction on which CST has been paid. Thus, we hold that no service tax is payable on this transaction involving only pure sale of materials. Accordingly, we hold that the demand confirmed in the impugned order, on this count is not sustainable.
Demand on Road Works - appellant has billed service tax in respect of this activity and hence it is alleged that the appellant collected service tax on this activity - HELD THAT:- This demand pertains to construction of roads. We observe that construction of roads is exempted under Notification No. 25/2012-ST. The said Notification clearly exempts the services provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of a road, bridge, tunnel, terminal for road transportation for use by general public.
The notification speaks of only “usage of the roads by general public” and it does not refer to ownership of the roads. We have perused the depositions obtained by the investigating agency during the course of investigation from the personnel of the appellant as well as the service recipient and the payment advices of the service recipient.
We find that Para 54 of the notice dated 18.11.2017 clearly admits to usage of the road by local villagers at different stretches. Shri Sameer Kumar Rout, Assistant General Manager (Taxation), UAIL in his statement dated 15.03.2017, in response to question no. 4, clearly admitted that the said road is used by the local villagers for years together even before setting up of the plant and before acquiring the ownership of the mines road by M/s UAIL. Thus, we find that the evidence available on record clearly indicates the usage of the said road by the inhabitants of 16 villages on either side of the road.
The other objection of the Revenue is that the appellant billed service tax in respect of this activity and hence it is alleged that the appellant collected service tax on this activity. In this regard, we observe that even though the appellant billed service tax in two instances (invoice dated 28.10.2013 & invoice no.1 dated 16.02.2015), fact remains, service tax is not paid to the appellant by the service recipient in these two cases as is evident from the corresponding payment adviceApart from the two instances cited none of the bills / invoices indicate billing of service tax. The payment advices in all the 12 cases indicate that service tax was not paid by the service recipient to the appellant. We thus observe that the Revenue has not brought in any evidence to substantiate the allegation that the appellant has actually collected the service tax. While this is the factual position, the Ld. Adjudicating Authority cited the above two bills / invoices for the purpose of confirmation of the demand without appreciating the difference between billing and collection and without establishing that the appellant collected service tax in those two cases.
As the activity of construction of road is exempted from payment of service tax as per Notification No. 25/2012-ST, fortified by the cited case law and documentary evidence placed to the effect that no Service Tax was collected by the appellant, we hold that the demand of Rs.1.49 crores confirmed in the impugned order on this count is legally not sustainable.
Confirmation of demand on Commission - appellant submits that they have sub- contracted some of the work orders to the sub- contractors on back-to-back basis, in which case the appellant paid service tax on the entire contract value; while disbursing this amount to the sub-contractors, they retained their profit margin and TDS and paid the remaining amount to the sub-contractors - HELD THAT:- In the present case, from the factual details discussed on the issue, the activity would not fall under (i) to (vi) above. Coming to the entry (vii), there is nothing to indicate that the appellant is acting as ‘Commission agent’ for the sub-contractor to whom the back-to- back contract has been given. The appellant is the one who is directly raising the bills for the work and receives the payment from the client. They are not performing any of the activities under (i) to (iv) specified to be the activities to be undertaken by the ‘Commission agent’. Since the work has been given on back-to-back basis, they retain a part of the margin as their profit and after deducting the TDS, they are giving the balance amount to the sub-contractor. Thus, we do not see that the profit margin retained by the appellant would fall under any of the above (i) to (vii) categories, so as to attract Service Tax payment under Business Auxiliary Service.
It is to be noted that the appellant has not rendered any service to the sub-contractor, but it is the other way round. The profit margin on such back-to-back transfer of the contract is in the nature of trading the contract to make a profit. This activity is not mentioned as a taxable service under Section 65(19) of the Finance Act, 1994, under the definition of the Business Auxiliary Service. Hence, the confirmed demand is not sustainable.
Therefore, we hold that this demand confirmed in the impugned order under the category of ‘Business Auxiliary Service’ is not sustainable.
Demand on Railway work - demand has been confirmed in the impugned order on the ground that it is a private railway line for use by UAIL - appellant submits that works related to Railways are exempted under Notification No. 25/2012-ST - HELD THAT:- We observe that the Original Authority, without appreciating the fact that the Revenue itself admitted to the non-billing of service tax, confirmed this demand by citing invoice no.1 dated 03.09.2012 which is the subject matter of S. No. 1 of Annexure - A2 to the notice for the year 2012-13 in which case, the appellant submitted that service tax has been collected and paid during the normal course vide challan no. 106 dated 27.09.2012. All the connecting documents relating to this transaction i.e., invoice, payment advice & challan. Thus, we hold that the demand confirmed in the impugned order is not sustainable.
Erection, Commissioning and Testing – Double Demand - HELD THAT:- We observe that the Ld. adjudicating authority has not given any findings on the submissions made by the appellant on this demand in the entire Order-in- Original. Thus, we hold that the demand raised in the instant notice is a double demand as the demand on this issue has already been covered in the Notice dated 17.10.2016. We accordingly hold that this demand is not legally sustainable.
Demand on Eastern piling - appellant submits that the amount involved in this demand pertains to lumpsum compensation paid by them on behalf of UAIL and got reimbursed later. Thus, the submission of the appellant is that this reimbursement does not relate to any activity which is liable for service tax - HELD THAT:- There is no discussion with reference to this demand either in the notice or in the impugned order. The documentary evidence submitted by the appellant clearly reveal that M/s Eastern Piling & Construction Pvt. Ltd., while executing a 33KV tower line and stringing work upto the mines top, encountered certain problems with the local villagers and negotiated with them for a lump sum compensation.
For this purpose, the appellant paid the said amount to the said company and got the same reimbursed from UAIL. The documentary evidence submitted by the appellant in the form of two letters dated 27.08.2013 and 25.10.2013 and a Note dated 17.07.2013, indicate that the reimbursement received by the appellant was not related to any taxable service. Accordingly, we hold that service tax confirmed in the impugned order on this count is not sustainable. Hence, the demand confirmed in the impugned order on this count is set aside.
Double demand on the advances received and the tax thereon - HELD THAT:- We observe that these advances on which service tax has already been paid, are adjusted in the present bills. However, the investigating agency has taken into consideration the gross amount for the purpose of computation of the tax liability of the appellant which resulted in the excess demand. Detailed calculations and submissions in this regard are provided. Thus, we hold that the demand of Rs. 78.96 lakhs confirmed in the impugned order on this count is not sustainable.
Confirmation of demand on Hiring of Additional dumper - as argued since the tax is to be payable by the service recipient and the same was already paid by him and since the appellant was not paid the said service tax, the demand on this count is liable to be set aside - HELD THAT:- We have perused the revised invoice wherein the service tax billed earlier was excluded. The corresponding payment advice confirms the claim of the appellant that they have not collected the service tax on this bill. Thus, we observe that the related payment advice indicates that only service consideration was paid and no service tax component was paid. Since, the appellant was not paid the said service tax and the activity undertaken is not liable to service tax at the hands of the appellant, the demand is not legally sustainable on merit.
We observe that the Original Authority for the purpose of confirming this demand. It is on record that this invoice was cancelled and a revised invoice was issued for which no service tax was paid by the service recipient to the appellant. This citation therefore will not be of any help to the Revenue. Accordingly, we hold that the demand confirmed in the impugned order on this count is not sustainable and hence we set aside the same.
Demand on Works Contract Service - HELD THAT:- We observe that the service rendered by the appellant include materials also and hence the said services are appropriately classifiable under the category of ‘Work Contract Service’. Accordingly, we hold that the appellant is eligible for the abatement 60% available to ‘Works Contract Service’. Thus, we hold that the appellant has rightly computed service tax on 40% of the value and correctly paid service tax as per the provisions relating to Works Contract Service on these three transactions.
Appellant was paid service tax on 40% of the value in all these 3 cases as seen from the related payment advice. Accordingly, we hold that the demand confirmed on this count is not sustainable and hence we set aside the same.
Notice issued invoking extended period of limitation - demand related to ‘Commission’ received by the appellant - HELD THAT:- We observe that the present notice was issued on the heels of the earlier notice dated 17.10.2016, covering the same period; the said notice has clearly gone on record that the appellant was providing exempt / non-taxable services like bauxite are transportation, reimbursable expenditure, road works etc., and yet did not question the said clearances. We also observe that three successive audits have been conducted during the relevant period, the audit teams did not question the said transactions; in fact, the audit memo dated 06.05.2016 for year 2014-15 has asked for reversal of proportionate CENVAT Credit on the ground that the appellant have provided taxable as well as exempt / non-taxable clearances. Thus, we observe that notice cannot be issued again by invoking extended period of limitation, as held in the case of Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT]. Accordingly, we hold that the confirmed demand in respect of extended period, is not sustainable and hence, we set aside the same on the ground of limitation.
Confirmation of CENVAT credit demand on inputs and input services - demand has been confirmed in the impugned order on the ground that the appellant had taken excess credit in certain cases and in some other cases availed credit without any supporting documents / proper duty paid documents - HELD THAT:- he Audit Officers called for various documents from the appellant including CENVAT Credit Documents, statement of credit availment, item-wise and document-wise. The CENTRAL EXCISE AND SERVICE TAX AUDIT MANUAL 2015 – CESTAM-2015 provides the documents to be verified by the auditors in the areas like CENVAT Credit and the auditors are bound to examine each and every aspect / record / document in relation to CENVAT Credit, Provision of services, payment of service tax, valuation, exemptions, taxable /non-taxable services etc. of the assessees.
Having regard to the above position and the evidence cited by the appellant, accounts of the appellant company were audited upto the period 2014-15. We, therefore, hold that the demand under this head for the years 2013-14 and 2014-15 are liable to be set aside on time bar front and accordingly we set aside the same.
Demand raised on the ground that there is misreporting of credit availment under input services instead of under inputs and vice versa - HELD THAT:- Since the appellant has already produced documents evidencing availment of credit of Rs. 25,71,907/- as against the availment of credit of Rs. 27,63,848/-, as accepted by the Department in the said Annexure and since the same are available with the department, the appellant is required to produce documentary evidence in respect of the balance credit of Rs. 1,91,941/- only. The appellant submitted that they have the documentary evidence for availment of this balance CENVAT Credit of Rs. 1,91,941/- also. Accordingly, we remand the matter back to the adjudicating authority for the purpose of verification of documents w.r.t availment of CENVAT credit.
Invoking extended period of limitation cannot be invoked to demand service tax and CENVAT credit - HELD THAT:- We hold that the Revenue was well aware of the issues on which demand was raised in the present proceedings much before issuance of the present notice. When the facts are in the knowledge of Revenue through audit of the accounts of the appellant as well as through the proceedings of other notice dated 17.10.2016, issued under the extended period, suppression of facts with intention to evade the tax cannot be alleged and extended period of limitation cannot be invoked.
Thus, we hold that the extended period of limitation cannot be invoked to demand service tax and CENVAT credit in this case. Accordingly, we hold that in the case of all the confirmed demands discussed above, the extended period provisions could not have been invoked. Hence, we hold that the following demands in respect of the extended period i.e., upto to the year 2014-15 are not legally sustainable on account of the time bar and set aside.
Appellant has charged and collected service tax from the recipient but failed to pay such tax so realised to the Govt exchequer - Even though the appellant billed service tax in some of the bills initially, the appellant is not liable to pay service tax, as the service recipient has finally not paid the service tax amount to them, as evidenced by the RA bills / invoices raised for final payment / payment advices issued by the service recipient. However, we make it clear that in any of the cases where the appellant has billed service tax in the bills and collected it from the service recipient and not paid the same to the exchequer during the normal period i.e., 2015-16, the appellant is liable to pay the amount of service tax collected by them to the exchequer, even if the activity is held as not liable to service tax in this order, as per the provisions of Section 73A of the Finance Act, 1994. We have already held that the demands for the period prior to 2015-16 are not sustainable on merit as well as on limitation. Thus, the above said verification needs to be done only for the demands confirmed in the impugned order for the Financial year 2015-16, which is the demand pertains to the normal period of limitation. Revenue is directed to conduct the verification on this aspect and complete the verification within three months from the date of receipt of this order. The appellant should cooperate and produce the relevant documents for verification.
Personal penalty on MD under Section 78A of the Finance Act, 1994 - Most of the demands pertain to settled issues like free supplies, reimbursable expenditure, road works, railway works and services liable to tax under RCM by the service recipient like Bauxite Ore Transportation. In addition, there are double demands on the advances, demand of service tax on supply of material, demand on lump sum compensation paid to villagers, commission, etc. These demands are set aside on limitation front too. In this backdrop, it may not be fair to impute mala fide intention on the part of Shri Ravichandra. Having regard to this position, we set aside the penalty of Rs. 1,00,000/- imposed on Shri M. V. Ravichandra, Managing Director of M/s K.V. Mohanarao & Co. Pvt. Ltd.
Original Authority also imposed a penalty of Rs.1 Lakh on Shri T. Srinivasa Rao, GPA Holder and Authorized signatory of M/s K. V. Mohanarao & Co. Pvt. Ltd. - As we have set aside almost all the demands on merit. Most of the demands pertain to settled issues like free supplies, reimbursable expenditure, road works, railway works and services liable to tax under RCM by the service recipient like Bauxite Ore Transportation. In addition, there are double demands on the advances, demand of service tax on supply of free material, demand on lump sum compensation paid to villagers, commission, etc. These demands are set aside on limitation front too. In this backdrop, it may not be fair to impute mala fide intention on the part of Shri T. Srinivasa Rao. Having regard to this position, we set aside the penalty of Rs. 1,00,000/- imposed on Shri T. Srinivasa Rao, GPA Holder and Authorized signatory of M/s K. V. Mohana Rao & Co. Pvt. Ltd.
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2024 (11) TMI 351
Entitlement to benefit of abetment 75% of the transportation charges - exemption notifications for Goods Transport Agency services - exemption notification No. 32/2004-ST dated 03.12.2004 and Notification No. 1/2006-ST dated 01.03.2006 - department is of the view that on verification of consignment notes issued by the ‘Goods Transport Agency’ has revealed that the ‘Goods Transport Agency’ have not given declaration on consignment notes to the effect of non-availment of Cenvat etc.
HELD THAT:-The certified photocopies as well as declaration from the service providers namely various transport agencies such as M/s. Maruti Logistics etc. it has categorically been provided by the appellant during the course of hearing to the learned adjudicating authority that the service provider transport agency has declared that ‘they have neither availed any credit of the duty paid on import or capital goods used for providing such taxable services under Cenvat Credit Rules, 2004 nor availed benefit of the Notification No. 12/2003-ST dated 28.06.2003 nor they are going to avail the benefit in future against the invoices issued to the service recipient.
On perusal of and a scrutiny of the document submitted by the appellant we are convince that substantive compliance of the conditions provided under Notification No. 12/2003-ST dated 28.06.2003 as well as Notification No. 32/2004-ST dated 03.12.2004 has been made by the appellant and therefore the benefit of abetment 75% of the transportation charges cannot be denied to them.
As decided in M/S EASTERN COALFIELDS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BOLPUR [2012 (10) TMI 492 - CESTAT KOLKATA] in absence of any particular format prescribed under the respective notifications, the department insisting for declaration on each consignment note for allowing the abatement under the said Notifications is unsustainable in law. In these circumstances the declarations filed by the Goods Transport Agencies (GTA) in their letter-heads or in the respective payment bills certifying that they have not availed Cenvat credit on inputs or capital goods nor availed the benefit of exemption Notification 12/2003-S.T., dated 20-6-2003 should have been accepted by the department in extending the benefit of Notification Nos. 32/2003-S.T. and 1/2006-S.T. In view of the above findings, we do not see any merit in the impugned orders passed by the Id. Commissioner. Consequently the order is set aside and the Appeals are allowed.
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