2019-TIOL-3088-CESTAT-MUM

Prashant Trading Company Vs CCGST

ST - The assessee is engaged in providing renting of immovable property service - On the basis of intelligent reports, it was found that the assessee was not discharging service tax on the rent collected from their tenants - Since the arguments about the extended period is very vital issue therefore, firstly this point will be decided without giving into other aspects of the matter - Although this issue was raised before the Commissioner also but no finding has been recorded - It is not disputed that earlier also a SCN was issued to assessee for the same issue concerning the same licensee, covering the period April, 2009 to August 2009 - If that is so and if the department is aware about alleged misdeeds in the year, 2010 itself, when the first SCN was issued, then why the department waited for three long years for issuing the second SCN for the same issue that too by invoking the extended period - It is legally unsustainable - The first/earlier SCN dated 08/10/2010 was issued to assessee covering the missing interregnum period of the second SCN i.e. April, 2009 to August, 2009, therefore the fact about non-payment of Service tax by assessee was within the knowledge of the department - The extended period could not have been invoked in the second SCN - The Supreme Court in the matter of Nizam Sugar Factory 2006-TIOL-56-SC-CX has laid down that when the first SCN was issued, all the relevant facts were in the knowledge of the authorities and later on while issuing the second SCN, the same/similar facts could not be taken as suppression of fact on the part of assesee as these facts were already in the knowledge of the authorities - Accordingly, without going into the other aspects of the matter, the appeal filed by assessee deserves to be allowed on the point of limitation itself: CESTAT

- Appeal allowed: MUMBAI CESTAT

2019-TIOL-3087-CESTAT-MUM

Owens Corning India Ltd Vs CST

ST - Admittedly the demand has been confirmed against assessee in respect of four services namely; Franchise Services, Consulting Engineer Services, Technical Testing and Analysis Services and BAS - As regards to demand on services received by assessee from overseas service providers under the category of Consulting Engineer Services and Technical Testing and Analysis Services, the amount paid by assessee was appropriated against the demand and penalties were set aside by extending the benefit of Section 80 - Assessee was engaged in selling the goods manufactured by their foreign counterparts namely OC HK and OC A in India - For undertaking the sale of such goods, assessee was receiving certain commissions from those foreign companies - Undisputedly the said commission was received in convertible foreign exchange - As per the assessee, during the period prior to introduction of Export of Service Rules, 2005, i.e. 14.03.2005, the benefit of exemption under Notfn 21/2003 should have been extended by Commissioner to them - The Commissioner has in his order not denied the admissibility of the benefit of said exemption notification but has only stated that assessee have failed to substantiate their claim under the said notification - The services of commission agent provided by assessee to their foreign counterparts have been provided by assessee for the sale of goods in India, is nothing but service provided/ used by the recipient of service in India - The services have been consumed in India, no merits found in the submission made by assessee, that the services provided by them were "export of services" - No reason found to differ from the findings recorded by Commissioner in his order for invoking the extended period of limitation - Penalties leviable on assessee for the various acts of commission under Section 76, 77 and 78 of FA, 1994 are upheld - Effectively the demand which is determined against the assessee is only in respect of "Business Auxiliary Services" - Since assessee have not provided the details of said services in their ST-3 return and have not paid the service tax in respect of these service, the penalties levied in respect of the services upheld under the section 76, 77 and 78 - However the quantum of penalty need to be redetermined after re-determining the demand in respect of these services: CESTAT

- Appeal partly allowed: MUMBAI CESTAT

2019-TIOL-3086-CESTAT-ALL

Krishi Utpadan Mandi Samiti Vs CCE

ST - The assessee is a statutory body under U.P. Krishi Utpadan Mandi Adhiniyam, 1964 and have not charged Service Tax from the receivers of service being renting of immovable property - Accordingly, it is pleaded that cum-duty benefit for calculation of service tax be allowed - It is also urged that the assessee being a Statutory body, the compliance under Service Tax was not made only due to lack of knowledge and/or instructions from the Administrative Authority of assessee - The transaction in dispute is duly recorded in books of accounts, ordinarily maintained by assessee - The demand have been raised on the basis of information furnished to Revenue by the assessee - It is a fit case for allowing the cum-duty benefit for calculation of Service Tax - There is no contumacious conduct or suppression of facts or deliberate default in compliance with the provisions of the Service Tax Act and Rules on the part of assessee and accordingly, the penalty under section 76, 77 and 78 of the Act are set aside - So far, late fee under Section 70 read with Rule 7 is concerned, the same is modified holding that penalty under Section 70 read with Rule 7 would be payable for default after 27th May, 2011, when Revenue initiated enquiry - It is facts on record that each Mandi Samiti is constituted separately with separate PAN numbers, henceforth eligible for basic exemption subject to satisfaction of other conditions specified in Notfn 06/2005-ST and as amended from time to time - Accordingly, the appeals are allowed in part and remanded to the Adjudicating Authority for re-calculation of tax: CESTAT

- Appeal partly allowed: ALLAHABAD CESTAT