2023 (12) TMI 480 - AT - Service Tax

Benefit of Cum duty price denied - services of Management, Maintenance or Repair Service - Erection Commissioning and Installation Services - allegation that services were provided clandestinely. The issue which has to be decided by this court is whether there is any conflict between the decision of Hon ble Supreme Court as relied upon reported by the Learned Commissioner (Appeals) in AMRIT AGRO INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD 2007 (3) TMI 14 - SUPREME COURT , and which distinguished the decision of COMMISSIONER OF CENTRAL EXCISE, DELHI VERSUS MARUTI UDYOG LTD. 2002 (2) TMI 101 - SUPREME COURT , or both operate in different domains. On same issue of cum duty price is another decision in COMMISSIONER OF C. EX; JAIPUR VERSUS DUGAR TETENAL INDIA LTD 2008 (3) TMI 50 - SUPREME COURT , which also had the benefit of referring to the decision of COMMISSIONER OF CENTRAL EXCISE, DELHI VERSUS MARUTI UDYOG LTD. 2002 (2) TMI 101 - SUPREME COURT . HELD THAT - This Court finds that in the decision of Maruti Udyog Ltd, that the cum duty price realised by the assesse was entire price inclusive of Excise duty. Therefore by not separately charging nor intending to charge assesse had taken upon itself to discharge the liability to pay taxes on the good sold, therefore cum duty benefit will be available to it, was the decision of the Hon ble Court. As against this, in the matter of Amrit Agro Industries Ltd Vs. Commr of C.Ex Ghaziabad cited (supra), the Apex Court held that in peculiar circumstances of matter when classification of roasted Peanuts was changed from chapter 21 to chapter 20 of the C.Ex. and an exemption granted of Notification No. 4/97 was being availed earlier and therefore duty charged was nil in effect. And when with change of classification to chapter 20 some duty became payable without the exempted rate (nil), same also should be considered as price inclusive of tax. Therefore further benefit was not required to be given to the assesse, consequent upon change of classification of the goods. Thus, it is apparent that there is no conflict between various decisions cited supra of the Hon ble Apex Court and there is a consistency that whenever matter pertains to clandestine removals or invocation of Section 11A, in cases where no duty on invoice was charged or no invoices issued in which the benefit is generally sought to be derived by evader by capturing market through lower price vis a vis., the general tax paying competitors, in such a case cum duty benefit will be afforded to such assesseee as it did not charge or intended to charge duty, whereas in other cases which pertain to classification disputes or there was an indication to the contrary indicting the price was cum duty or not cum duty, even if Nil there the benefit shall be suitably altered. In the instant case, this court finds that services have been rendered by the appellant, but without registration or filing returns. Therefore, under the circumstances it could not be said in the facts of the case that cum duty benefit was deniable to the party. Commissioner (Appeals) having thus wrongly interpreted the decision of the Apex Court, and having ignored other decisions is directed to re-work the duty by allowing cum tax benefit to the assesse. Needless to say the interest and penalty, if any will also be reworkable accordingly. Appeal is allowed by way of remand.

Summary

Issues involved: Benefit of Cum duty price denial on services provided in 2010-11, penalty under Section 67, interest calculation, conflict between different Supreme Court decisions on cum duty price.

The issue at the appellate stage concerned the denial of Cum duty price benefit to the appellant for services provided in 2010-11, leading to a penalty under Section 67 and a duty amount. The department found that the services were provided clandestinely without proper registration or filing of returns. The appellant contested the denial of cum duty benefit and interest calculation by the department, citing various Supreme Court decisions. The court appointed an experienced Advocate as amicus curie for assistance due to the absence of the party during previous hearings.

The main issue for the court was to determine any conflict between Supreme Court decisions regarding cum duty price benefit. The court analyzed the decisions in the cases of Maruti Udyog Ltd, Amrit Agro Industries Ltd, and C.Ex Jaipur Vs. Dugar Tetenal India Ltd. The appellant argued for cum duty benefit based on the nature of services provided, while the department relied on the decision in the Amrit Agro case. The court found that the denial of cum duty benefit by the Commissioner (Appeals) was incorrect and directed a reworking of the duty amount to allow the benefit to the appellant. The interest and penalty were also subject to re-calculation accordingly.

The court referenced specific paragraphs from the Supreme Court decisions to highlight the principles governing cum duty price determination in different scenarios. It was noted that in cases of clandestine removals or Section 11A invocations, cum duty benefit should be granted if no duty was charged or intended to be charged. However, in cases involving classification disputes or clear indications of price being cum duty or not, adjustments should be made accordingly. In this case, the court concluded that the appellant was entitled to cum duty benefit due to the nature of services provided, despite the lack of registration or return filings. The Commissioner (Appeals) was directed to rework the duty amount considering the cum tax benefit for the appellant. The court appreciated the assistance provided by the Advocate appointed as amicus curie and allowed the appeal by way of remand.