Grishma Developers Vs CCE & ST

ST - The issue in the present case is whether service tax is leviable on services under the heading Commercial or Industrial Construction, when the assessee received advance in respect of sale of property prior to 01.07.2010 - The period of dispute in the present matter is 2005-06 and 2007-08.

Held - There is no dispute that the amount against sale of Commercial complex was received by the assessee during the period 2005-2006 to 2007-2008 - The explanation was inserted in Clause (zzq), as per which even the amount received before during and after construction is liable to service tax only after 01.07.2010 - Considering that this statutory provision came into effect w.e.f. 01.07.2010, the demands raised are unsustainable: CESTAT

- Assessee's appeal allowed: AHMEDABAD CESTAT

ST - Show Cause Notices mention that the activity undertaken by the appellant appeared to be classifiable and taxable under the category of "Construction of complex" services as defined under section 65(30a) of the Finance Act, 1994 - SCNs further mention that the appellant is also liable for payment of service tax as a recipient of GTA service - Principal Commissioner has confirmed the demand of service tax with regard to the work [ Construction of Inter State Bus Terminus platform including building works, water supply, sanitary work and internal electrification, Construction of Individual Duplex under Vedavati Avasiya Yojana, Amravat Khurd ] executed for the Bhopal Development Authority only and has discharged the demand made for the works [ Construction of Office Building for the Commercial Tax Department, GoMP ] carried out for the Capital Project Authority; the demand has also been confirmed for GTA services - appeal to CESTAT.

Held:

++ Tribunal in Amar Construction Company in regard to the construction of the same Inter State Bus Terminal has held that ISBT is transport terminal which is clearly excluded from the definition of "Commercial or Industrial Construction Service" given under section 65(25b) of the Finance Act for service tax purposes; that when the construction of ISBT is not a taxable service, there cannot be any bifurcation of that activity for service tax - demand unsustainable: CESTAT [para 14, 15]

++ Insofar as construction of individual duplex under Vedavati Avasiya Yojana, Amravat Khurd for the Bhopal Development Authority and demand of service tax under "construction of complex" as defined under section 65 (30a) of the Finance Act, the definition of a "residential complex" leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units - In other words, a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units - Independent buildings having twelve or less than twelve residential units would not be covered by the definition of "residential complex" - In the present case, the appellant had constructed independent buildings having one residential unit only - Thus, even if the appellant had constructed more than 12 independent buildings, the nature of activity would not be "construction of complex" and, therefore, the service tax could not be levied - definition of "construction of complex" and a "residential complex" continue to remain the same after 1 July, 2012 and, therefore, service tax liability could not have been fastened even after 1 July, 2012 under "construction of complex" - Thus, the levy of service tax on the appellant under 'construction of complex service' is not justified and, cannot be sustained.: CESTAT [para 19, 20, 27, 28]

++ In the matter of confirmation of service tax demand under GTA service, appellant has referred to receipts to substantiate that it was a case of local cartage and not a case of transportation by GTA - Though it is a fact that the appellant had not produced these receipts before the Principal Commissioner in response to the show cause notice but the meager amount paid by the appellant for this activity during this period persuades the Bench to remand the matter to the Principal Commissioner for examining this aspect after providing an opportunity to the appellant to submit the relevant documents within six weeks from the date of order - Matter remanded to the said extent: CESTAT [para 30]

- Appeal partly allowed: DELHI CESTAT

Joshi Technologies International Inc Vs UoI

CX - Applicant seeks review of the judgment and order dated 16.6.2016 = 2016-TIOL-1240-HC-AHM-CX and seeks grant of interest at the rate of 18% per annum or such other rate as the court deems fit from the date the respective amounts were deposited with the respondents till the date of actual refund of the deposit - Court has held that the provisions of the Central Excise Act, 1944 will not apply to refund amount sanctioned as the said amount was not a duty of excise or education cess or secondary and higher secondary education cess and such amount was merely an amount deposited under a mistake of law and, therefore, as a necessary corollary, the statutory provisions pertaining to interest as provided in Central Excise Act shall also not apply.

Held: This court has held that since refund is not in the nature of duty under the Central Excise Act, the petitioner is not entitled to statutory interest under section 11BB of that Act - It has further been held that in the absence of any statutory provision entitling the petitioner to interest, a mandamus cannot be issued to the revenue to pay interest - It needs mention that while the petitioner in the relief paragraph has prayed for interest at the rate of 18% per annum, at the time of hearing of the petition, no submissions had been made in this regard - Nonetheless, since in the reliefs prayed for, a prayer for grant of interest had been made, Court had considered the same and rightly or wrongly, for the reasons set out in the order, declined to grant such relief - Once the court has, after duly recording reasons, turned down the prayer for grant of interest, even if the reasoning for declining such relief may be fallacious, the same would not fall within the scope of a review application - Petitioner is right in submitting that the findings recorded in the above paragraph are inconsistent with each other, namely, that if the provisions of the Central Excise Act are not applicable to the claim of refund, the question of denying interest on the ground of absence of any statutory provision entitling the petitioner to interest would not arise, inasmuch as, it is only when a claim is made under a statute that an assessee can claim interest only provided the statute provides for the same; however, such view can be said to be an erroneous view, inasmuch as, the court has expressed a view in that regard - even if the court were to accept that to the aforesaid extent, the above finding appears to be erroneous, nonetheless, on behalf of the petitioner no submissions had been advanced before this court at the time of hearing of the matter, nor have any foundational facts been laid down in support of such claim, either in the petition or even in the application dated 17.7.2014 made before the respondent authorities - at this stage of review, the court would be required to re-hear the respective parties on the question of interest, namely, the entitlement, quantum and the date from which such interest is required to be granted which would amount to giving a fresh opportunity to the petitioner to argue on a point which though, could have been argued, was not argued at the relevant time when the case was heard, which would be beyond the scope of a review petition - Therefore, even while accepting the submission of the petitioner that the findings recorded by this court in paragraph 19 of the judgment are inconsistent with each other, it would not be possible for this court to grant the relief prayed for in the application as it would entail long drawn arguments on the question of entitlement, rate of interest as well as the point of time from which such interest should be granted which would be beyond the scope of a review application - review application is rejected: High Court [para 9, 10, 15, 16, 17, 18]

- Application rejected: GUJARAT HIGH COURT

2020-TIOL-558-CESTAT-HYD

CCE Vs Hindustan Shipyard Ltd

2020-TIOL-557-CESTAT-KOL

Numaligarh Refinery Ltd Vs CCE

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