2021-TIOL-680-CESTAT-KOL
Eden Real Estates Pvt Ltd Vs CST
ST - There are three different issues to be decided - Firstly, as regards the demand of Service Tax on car parking charges collected by appellant from its customers, though Tribunal is not inclined to accept the proposition of appellant that since the car parking is specifically excluded from definition of 'Preferential Location Services' which was also introduced w.e.f. 01/07/2010 and hence the said service cannot be taxed under 'Construction of Residential Apartment Services', the appellant has made out a case on limitation ground as the said service was introduced w.e.f. 01/07/2010 and there was no clarity as to the taxability of such amounts as received by appellant - Hence, appellant was under a bona fide belief that since it was giving Right to use of car parking space, no tax is payable under the category 'Construction Services' - Thus, since the entire demand has been raised by invoking extended period of limitation, the same is set aside.
As regards the demand of Service Tax on 'Club Membership Services', since there was no club in existence during the period of dispute, there cannot be any demand raised on said ground - Also, post the judgment of Supreme Court in Calcutta Club case 2019-TIOL- 449-SC-ST-LB , it is a settled law that there cannot be any Service Tax charged on services between club and its members as the same tantamounts to self service - Hence, the demand under 'Membership of Club or Association Services' also needs to be set aside.
Lastly, as regards the demand of Service Tax on amounts received after 01/07/2010 for 'Construction Services' rendered upto 30/06/2010 and demand notices issued in this regard, lower authority has confirmed the demand by holding that as per the explanation added to clause (zzzh) for 'Construction of Residential Complex Services' w.e.f. 01/07/2010 viz. the essential condition for determining taxability is, whether payment made by buyer to the builder on or after 01/07/2010 and whether payment made before or after issuance of completion certificate by competent authority and since in the case of appellant the completion certificate was not issued when the amounts were received, the same is taxable under the Service Tax net - There is no ambiguity in said explanation as the same only extends the tax net of 'Construction Services' to any amounts received prior to obtaining completion certificate - Said explanation does not and cannot levy tax on amounts collected before the levy itself came into existence - In this regard Rule 6(1) of the Service tax Rules, 1994 clearly provides that the said amounts cannot be taxed if the service was not taxable when the same was provided - The judgment in case of Amit Metaliks Ltd. 2019-TIOL-3177-CESTAT-KOL is squarely applicable to the present case and hence demand on the 'Construction of Residential Complex Services' is set aside - Further, on limitation also, the department has failed to produce sufficient evidence to satisfy the ingredients for invocation of extended period of limitation and hence, the invocation of extended period of limitation to demand duty cannot be sustained - The entire demand cannot be confirmed both on merits and on limitation: CESTAT
- Appeal allowed: KOLKATA CESTAT
2021-TIOL-679-CESTAT-AHM
Essel Propack Ltd Vs CCE & ST
CX - The appellant has availed Cenvat credit pertaining to period of 2009-2010 and 2010-11 in July 2013 - Case of department is that the appellant has not availed Cenvat credit immediately on receipt of inputs therefore, it becomes time-barred accordingly, the Cenvat credit was denied - The appellant have taken the credit in month of July 2013 in respect to the goods received during the period 2009-10 and 2010-11 - During that period, no time-limit was prescribed for taking credit - Therefore, department cannot import the time limit which is not statutorily stipulated in the law - The time limit has been prescribed by Notification No. 21/2014-C.E. (N.T.) whereby the appellant is supposed to take credit within 6 month/1 Year from the date of invoice - Considering this amendment for the past period, Tribunal has considered the similar issue wherein it was held that for the invoice issued prior to date of Notification No. 21/2014-CE (NT) , the Cenvat credit cannot be denied on the ground of limitation - This issue has been considered by Punjab and Haryana High Court in case of Industrial Cables 2009-TIOL-244-HC-P&H-CX wherein the same issue of limitation for availing Cenvat credit was considered - In view of the same, cenvat credit cannot be denied on the ground of limitation in absence of any statutory time limit prescribed - Therefore, the impugned order is not sustainable hence the same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-678-CESTAT-BANG
John's Cashew Company Vs CC
Cus - The issue for consideration in this case is the eligibility of the appellant for refund of 4% of Special Additional Duty (SAD) in terms of Notification No. 102/2007-Cus, dated 14/09/2007 - The appellant made claim for refund and after due adjudication, vide the Order-in-Original dt. 04/08/2018, the Assistant Commissioner rejected 4% SAD as being time barred in terms of the Notification - The Commissioner (Appeals) passed the Order-in-Appeal & upheld the rejection.
Held - There can be no dispute on the proposition that irrespective of whether or not the judgments of non-jurisdictional High Courts are binding, these judgments deserve utmost respect which implies that, at the minimum, these judgments are to be considered reasonable interpretations of the related legal and factual situation - Doctrine of precedence only mandates that it is the ratio in the decision of higher courts to be followed, and not conclusions - Considering legal position and propriety, it is inappropriate to choose views of one of the High Courts based on perceptions about reasonableness of the respective viewpoints, as such an exercise will de facto amount to sitting in judgment over the views of the High Courts - When there is a reasonable interpretation of a legal and factual situation, which is favourable to the assessee, such an interpretation is to be adopted - The Apex Court in CIT v. Vegetable Products Ltd. has laid down that if two reasonable constructions of a taxing provision are possible, that construction which favours the assessee must be adopted - Although this principle so laid down was in the context of penalty, and Their Lordships specifically stated so in so many words, it has been consistently followed for the interpretation about the statutory provisions as well - Hence the denial of refund is bad in law: CESTAT
- Assessee's appeal allowed: BANGALORE CESTAT |
