South India Corporation Ltd Vs State Of Tamil Nadu

Whether when the dealer has filed return and disclosed turnover fully, the AO cannot cull out all the details from the returns filed by the dealer for purpose of levying penalty - YES: HC

- Assessee's petition allowed: MADRAS HIGH COURT

SERVICE TAX

2018-TIOL-2600-HC-MAD-ST

PR CIT Vs Consolidated Construction Consortium Ltd

ST - Whether the Tribunal was right in allowing the appeals filed by assessee without verifying their claim that they completed the services prior to 01.6.2007 and consequently, they are entitled for abatement - The Tribunal took note of an order earlier passed in assessee’s own case 2016-TIOL-1856-CESTAT-MAD - Assessee argued that in impugned common final order, Tribunal straightaway granted relief and quashed the orders passed by Adjudicating Authority without any verification being done with regard to the stand taken by assessee that though the payments were received after 01.6.2007, the services were rendered prior to 01.6.2007 - Since the Tribunal, in said common impugned order, has not given any specific finding with regard to relevant assessment year as to whether the services were rendered by assessee prior to 01.6.2007 though they received the payment after the said date - Assessee is partially right in referring to O-I-O, still court cannot dispense with verification process because the periods involved are different from the periods involved in other cases - Therefore, to that extent, Adjudicating Authority should verify the nature of transactions to ascertain as to whether the decision of Supreme Court in case of Larsen & Toubro Limited 2015-TIOL-187-SC-ST can be applied to the case of assessee - The said common impugned order is set aside and the matters are remanded to Adjudicating Authority - Since the matters have been pending for a quite long period of time, Adjudicating Authority is directed to complete the verification process as expeditiously as possible and preferably within a period of three months: HC

- Matter remanded: MADRAS HIGH COURT

2018-TIOL-3777-CESTAT-MUM

Marketplace Technologies Pvt Ltd Vs CCGST & CE

ST - Appellant had availed CENVAT credit on certain software but the same was cleared as such without using the same - they failed to reverse the credit but did so along with interest after being pointed out by Audit - SCN issued and penalty imposed u/s 78 of FA, 1994 - appeal to CESTAT.

Held: It is seen that this was not a first and lone instance when the appellant wrongly availed credit - Perusal of SCN shows that during the period 2010-11 and 2011-12, on a few occasions, the appellant has availed CENVAT credit and failed to reverse when such software was sold by them - when there is no intention to use the software, availment of credit itself was wrong - it is clear that the activity is of trading and in these circumstances the claim of the appellant that they were under a mistaken impression cannot be believed - since it is an act clearly intended to defraud the government, no merit in their claim for remission of penalty - penalty upheld and appeal dismissed: CESTAT [para 5, 6]

- Appeal dismissed: MUMBAI CESTAT

Sandvik Asia Pvt Ltd Vs CCT

ST - During audit, department pointed out that between July 2012 to September 2013, appellant had received services from M/s Vishwajeet Fabricators, M/s Tejal Electricals, M/s Magha Infrastructure etc. towards Manpower services and who had paid 100% applicable service tax on the value of service provided by them - as per notification 30/2012-ST, the service provider was required to pay 25% of service tax whereas the service recipient-appellant was required to pay 75% of the tax payable - accordingly, service tax liability on the appellant was worked out provisionally and a demand was issued on 08.02.2016 for Rs.6,20,225/- - appellant intimated that they had on 12.08.2015 paid service tax of Rs.9,68,934/- for the period August 2012 to January 2014 and which includes the demand raised by the department and, therefore, the SCN was uncalled for - appellant also submitted that since tax was already paid by service providers, same should be treated as payment made by the ‘agent' of assessee and no further tax liability is due from the appellant on the same services - Tribunal decision in Katrina Turquotte - 2012-TIOL-1780-CESTAT-MUM cited - nonetheless, the demand was confirmed by the adjudicating authority and upheld by Commissioner(A) - appeal before CESTAT.

Held: What benefit can be derived by the appellant by discharging 100% tax liability and availing the credit thereof or by paying 75% tax liability and availing credit thereof, whether such payment is made directly to the revenue authority or collected and paid through some additional agency or by the service provider - appellant is in an advantageous position since the act of their discharging tax liability as per the prevailing practice would justify its bonafide belief and disprove its malafide intention -appellant has justified in holding that the onus of proof of malafide intention is on the revenue authority - obviously, there cannot be double taxation in respect of same service provided to or availed by the same person - any amount paid during investigation/audit prior to filing appeal can be considered as pre-deposit - regarding refund claim in treating the payment as pre-deposit, the appellant has to follow the procedure prescribed for such refund - appeal allowed by setting aside the order-in-appeal: CESTAT [para 8 to 11]

- Appeal allowed: MUMBAI CESTAT

CENTRAL EXCISE

2018-TIOL-3775-CESTAT-MUM

CCE Vs Sai Equipments Pvt Ltd

CX - Respondent was fabricating underground storage tanks for M/s Indian Oil Corporation on labour charge basis and were paying CE duty on the same but from November 2004, they got themselves registered with the service tax department and started paying service tax under the category of BAS and Commissioning and Installation Service - Revenue was of the view that the respondent should have paid CE duty instead of Service Tax - demand of CE duty issued invoking extended period of limitation - Commissioner(A) upholding demand only for the normal period, therefore, Revenue in appeal.

Held: Since the respondent registered themselves with the department and started paying service tax by treating the activity as 'service', no suppression or malafide can be attributed to them so as to justify invoking the longer period of limitation - no infirmity in the order of the Commissioner(A) - Revenue appeal rejected: CESTAT [para 6, 7]

- Appeal rejected: MUMBAI CESTAT

Karishma Overseas Vs CCE

CX - Application filed for rectification of mistake in Final order dated 09.03.2018 - 2018-TIOL-2909-CESTAT-MUM on the ground that since the proceedings against the main appellant was dropped, appeals of the co-appellants also ought to have been allowed; that since cross-examination of witnesses were not given, the order suffers from infirmity requiring rectification.

Held: Issue of cross-examination cannot be said to be a mistake apparent on the face of the records requiring any rectification - moreover, the entire ground raised in the ROM application is relatable to the merits of the case and it is a well settled law that a mistake requiring any rectification has to be apparent on the face of the record and any issue which requires long drawn out arguments from both sides cannot be held to be a mistake apparent on the face of the records - review of the matter cannot be sought under the guise of rectification - applications rejected: CESTAT [para 4, 5]

- Applications rejected: MUMBAI CESTAT