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TMI Blog2023 (11) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... s provides that: "The rate quoted by the `bidders shall be inclusive of all taxes and duties. However, Service Tax and Educational Cess, if applicable, will be reimbursed by KOPT at actual on production of documentary evidence. Service Tax and Educational Cess will not be considered for the evaluation of the Tender". c. The plaintiff under the impression that the service tax was payable only in respect of daily maintenance charges of the vessels, the plaintiff started raising bills on the defendant together with the bills for reimbursement of service tax on daily maintenance charges and the same was duly received by the defendant and were duly paid. d. When the control and management of the Corporated Shipyard Private Limited was merged with the plaintiff, a doubt was created with regard to the applicability of the service tax on the entire service rendered by the plaintiff to the defendant under the contracts. The plaintiff has sought for professional expert opinion and it was opined that service tax was payable on the entirety of the service rendered by the plaintiff. In order to regularize payment of service tax under the eight agreements and further in order to avail o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court by an order dated 24th February, 2017. 3. Case of the defendant is as follows : a. The plaintiff is not entitled to any reimbursement of service tax unless and until the plaintiff submitted to the defendant suitable documentary evidence in original during the subsistence of the contract so as to enable the defendant to avail corresponding input credit. The plaintiff has not paid the service tax during the subsistence of the contract. The plaintiff has also not submitted the discharge certificate in Form VCES-3 which was the required to prove payment under VCES-3 scheme and a pre request for availing of input credit. b. The defendant by a letter dated 17th September, 2015, called upon the plaintiff to submit Form VCES-3 and subsequent several reminders were made to the plaintiff for submission of documents but the plaintiff has not submitted the same till the order passed by the Hon'ble Court dated 24th February, 2017. The defendant had legitimately required the plaintiff to submit a bank guarantee in as much as input credit in all likelihood would have disallowed by the Service Tax Department without Form VCES-3. c. The Service Tax Authority was impleaded as party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made payment of Rs. 2,40,00,000/- on 31st December, 2013 and the balance amount of Rs. 1,54,34,035/- was paid on 31st December, 2014 along with interest of Rs. 13,97,767/-. The claim of the plaintiff is that after payment of the first tranche i.e. Rs. 2,40,00,00/- on 31st December, 2013, the plaintiff has requested for reimbursement of the said amount but the defendant neglected to reimburse the same due to which delay was caused for payment of the balance amount. The plaintiff claims that after payment of first tranche of the service tax, the plaintiff has applied for reimbursement by enclosing debit notes dated 1st January, 2014 i.e the documentary evidence as per Clauses 2.13 and 3.12 of the Contract. Similarly, the plaintiff after payment of second tranche applied for reimbursement of the said amount by enclosing debit notes dated 10th August, 2015, as documentary evidence but inspite of receipt of the said documentary evidence, the defendant has not reimbursed the service tax paid by the plaintiff. The defendant was not satisfied with the debit notes as documentary evidence submitted by the plaintiff for reimbursement of service tax as the plaintiff has not submitted dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny further documents and/or security of any nature. After the writ petitioner No. 1 has received the sum of Rs. 3,94,34,035/- s directed hereinbefore, it shall be open to the writ petitioner No. 1 and/or the Kolkata Port Trust to pursue their respective legal remedies in respect of any other claims that they may have against each other before the appropriate forum, with liberty to each of the said parties to defend the same. The Service Ta Department will be making available to the Kolkata Port Trust the necessary Cenvat Credit for the said sum of Rs. 3,94,34,035/- paid towards service tax on the basis of the supplementary invoices and the original discharge certificate as aforesaid issued by the Service Tax Department as per the statement made in paragraph 3(e) and 3(f) of the affidavit in opposition affirmed on 22nd day of January, 2017 by and on behalf of the Service Tax authority, and thus shall not demand the original discharge certificate from the writ petitioner No. 1 for any related or other purpose whatsoever. Since no affidavit in opposition has been filed the allegations are deemed to have been denied. W.P. No. 948 of 2016 stands disposed of." Circular No. 176/2/2014- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m VCES-3. As per circular dated 20th January, 2014, it is clarified that under Section 108(2) of the Finance Act, 2013, a declaration made under Section 107(1) shall become conclusive only upon issuance of acknowledgement of discharge under Section 107(7). It is also clarified that in terms of Rule 7 of the Service Tax VCES Rule 2013, the acknowledgement of discharge in form VCES-3 shall be issued within a period of 7 working days from the date of furnishing of details of payment of tax dues in full along with interest, if any, by the declarant. It is also clarified that in the interest of VCES declarants to make payment of the entire service tax dues at the earliest and obtain the discharge certificate within 7 working days of furnishing details of the payment. In the present case, the plaintiff has paid part of the service tax on 31st December 2013 and subsequently the balance amount was paid on 31st December 2014 with interest. After payment of service tax in both occasions, the plaintiff has applied for reimbursement of the said amounts enclosing debits notes as documentary evidence but admittedly, the plaintiff has not submitted discharge certificate in both the occasions. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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