2021-TIOL-2032-HC-KAR-ST
CCE & ST Vs Corporation Bank
ST - Tribunal having examined the records took note of the finding arrived by the Commissioner who had found that the respondent-Bank had acted bonafidely and there was absolutely no intention on the part of the respondent-Bank to evade payment of service tax and therefore, the Tribunal set aside the order passed by the Commissioner - Revenue is in appeal before the High Court.
Held : Material on record does not indicate that the respondent-Bank has indulged in any one of the ingredients contemplated under Section 73 of the Finance Act, 1994 and, therefore, the proviso to Section 73 of the Act would not be available to the revenue - Commissioner was of the view that there was a technical lapse on the part of the respondent Bank - The proviso of Section 73 of the Finance Act allows the revenue to raise a demand within extended period only where assessee indulges in fraud, wilful misstatement or suppression of facts or contravention of provisions of the Act with intend to evade payment of duty - The service tax was implemented in the month of September 2005 and, therefore, the material on record clearly indicates that there was no deliberate intent to evade tax and any lapse on the part of the respondent-Bank was rightly viewed by the authority as a technical lapse - No infirmity or illegality in the order under challenge - Appeal is devoid of merits and the same is accordingly dismissed: High Court [para 12, 14]
- Appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-2031-HC-KAR-ST
Sri Srinivas V Vs UoI
ST - SVLDRS, 2019 - Petitioner seeks review of this Court's order dated 14.12.2020.
Held : It is very obvious that the writ petition is dismissed without considering the material provisions of the statute and the Scheme despite the material being on record - Perhaps the provisions of the statute and the Scheme, now pressed into service could make a material difference to the outcome of the writ petition - It is undeniable that the attention of the Court is not drawn to material statutory provisions and the material circumstances - Thus, obvious sufficient reasons are established for review as envisaged under Order XLVII Rule 1 of CPC without calling for much probing - Therefore, this Court, answering the question for consideration in favour of the petitioner, opines that the order dated 14.12.2020 must be reviewed - The review petition is allowed and the order dated 14.12.2020 in WP No. 11190/2020 = 2021-TIOL-13-HC-KAR-ST is recalled - Writ petition is restored on board for reconsideration: High Court [para 20]
- Petition allowed: KARNATAKA HIGH COURT
2021-TIOL-2030-HC-KAR-CX
Pr.CCT Vs Vikrant Tyres Ltd
CX - Revenue is in appeal aggrieved by the order of the CESTAT holding that the doctrine of unjust enrichment is not applicable in the case of Provisional Assessments.
Held: Rule 9B[5] has to be read with the proviso which provides that if an assessee is entitled to refund, such refund shall not be made to him except in accordance with the procedure established under Sub section [2] of Section 11B of the Act as inserted with effect from 25.07.1999 - Rule 7[6] read with the proviso provides that the duty of excise paid by the manufacturer, if he had not passed an incidence of such duty to any other person be paid to the applicant instead of crediting to the fund, the refund amount determined under Sub-rule[3] - Thus, it cannot be held that Rule 7[6] cannot be equated to Rule 9B[5] inasmuch as the claim of refund is concerned - It is not disputed that for the assessment years from 2002-03 to 2008-09, refund claim of the manufacturer assessee was allowed and the same has reached finality - Revenue has cherry picked the assessment years in question to challenge, giving a finality to the other assessment years - Apex Court in Surcoat Paints [P] Ltd. = 2008-TIOL-223-SC-CX has held that the Revenue having accepted the decision given by the Tribunal in another case of the same nature, is precluded from challenging the similar order passed in respect of another unit - If so, in the very same assessees case if the refund orders are accepted for particular years, the same cannot be challenged relating to the other years - Revenue cannot pick and choose the assessment years for challenging the orders having similar effect - Moreover, as observed by the First Appellate Authority, the issue of unjust enrichment has been raised for the first time on the sanction of refund order consequent on finalization of provisional assessment - The authorities have admitted that the credit notes were issued by the assessee to their dealer representing various discounts which have been actually passed on, in accordance with marketing circulars/policies - It is also observed that on verification of sample depot invoices at the time of completion of provisional assessment, that the assessee has not issued any CENVATable invoice from the depot which are prescribed document for availment of CENVAT credit under CENVAT Credit Rules, 2004 - Thus, it cannot be held that the assessee was not subjected to the test of unjust enrichment - No perversity or illegality in the orders impugned - Revenue appeal is dismissed: High Court [para 13, 16, 17]
- Appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-653-CESTAT-BANG
Pradeep Deviah And Associates Pvt Ltd Vs CCT
ST - The issue relates to applicability of Rule 6(3) of CCR, 2004 to exempted activity of sale of space or time for advertisement in print media, inadmissible cenvat credit of input services availed in respect of Air travel, accommodation charges, taxi hire charges and AMC for flat at Delhi and limitation - As far as applicability of Rule 6(3) of CCR is concerned, Activity of sale of space or time for advertisement in print media is specifically covered under negative list in terms of Section 66D of FA, 1994 and therefore the same cannot be said to be an exempted service and the provisions of Rule 6(3) is not applicable to an activity which is in the negative list - Appellant at the time of audit itself reversed the cenvat credit along with interest on proportionate common credit and once the appellant has reversed the proportionate credit as per Rule 6(3A) of CCR, 2004 then it was not incumbent on the Department to issue a SCN demanding reversal of 6/7% of the exempted turnover - Appellant has complied with the requirement of 6(3A) by reversing the amount which was required to be reversed - As far as wrong availment of credit on input service is concerned, as far as Air travel/visa, accommodation and AMC for flat at Delhi is concerned, the employees have to travel to places to organize business exhibitions and events and hence the travel is in relation to the output service provided.
As far as extended period of limitation is concerned, extended period cannot be invoked because the SCN was issued on the basis of departmental audit undertaken for period October 2011 to September 2015 and all the facts were disclosed in the audit - Hence, suppression of fact with intent to evade service tax cannot be alleged against the appellant - The impugned order is not sustainable in law and the same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT |
