|
2022-TIOL-1025-CESTAT-DEL
Revex Polymer Pvt Ltd Vs CCE & CGST
CX - It is alleged that appellant had wrongly availed Cenvat Credit of Service Tax on invoices issued by principal importers from whom appellant purchased the inputs on high sea import basis - Issue involved is no more res integra in view of decision of Tribunal in appellant's own case for earlier years i.e. December, 2010 to December, 2015 - The aforesaid decision of Tribunal has not been challenged anywhere and there is no reason for not to follow the same - Therefore, without going into other details of matter, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-1024-CESTAT-DEL
S Kumar Builders Vs CCGST
ST - The appellant is a provider of service under the head "Works Contract Service" and is registered with the Department - The appellant filed their returns regularly and also deposited the admitted tax - Pursuant to show cause notice dated 6.11.2019, service tax has been demanded as short paid/not paid, based on the Income Tax records like Form 26 AS, Income Tax Return, Profit & Loss Account, etc. for the financial year 2014-2015 - The proposed demand of Rs.11,67,226/- was confirmed with equal amount of penalty under Section 78. Further, late fee of Rs.21,000/- has been imposed under Rule 7C read with Section 70 - Further, penalty of Rs.10,000/- has been imposed under Section 77(2) for not showing correct gross receipt of services in ST-3 Returns - The appellant preferred appeal before the Commissioner (Appeals), who vide impugned order-in-appeal set aside the demand of Rs.12,047/- (on Euro Bond) in respect of debt settlement and upheld the balance demand of Rs.11,55,179/- along with equal amount of penalty and also upheld both the penalties under Section 70 and 70 (2).
Held - Section 12 AA read with section 12 A of the Income Tax Act provides for process of registration of a trust or institution, where income derived from the property etc. held under trust, is wholly meant for charitable or religious purposes, wherein exemption from income tax is available, subject to certain conditions - Further, 'charitable purpose' is defined under Section 2 (15) of the Income Tax Act – 'Charitable purpose' includes relief of the poor, education, yoga, medical relief, preservation of environment, etc. and the advancement of any other object of general public utility - Further, in the facts of the case, it is admitted that the service tax has been provided for civil construction of school building or hospital building to a charitable institutions or Trust registered under Section 12 AA of the Income Tax Act and the said activities are covered under the definition of 'Charitable Purpose' under the Income Tax Act - Further, the exemption notification in clause 13 (C) only states that, services provided by way of construction, erection, alterations, etc. is exempted, if the building is owned by an entity registered under 12 AA of the Income Tax Act and meant predominantly for religious use by public - Thus, education and medical services are also in the nature of religious services - The said activities are exempt under clause 2(k) of Notification No.25/2012-ST - Held that religious use includes providing of education, and medical aid, which reduces human suffering - Accordingly, I hold that the appellant is entitled to exemption with respect to aforementioned works contract service provided to the Trusts registered under Section 12A/12AA of the Income Tax Act - Thus, the demand of Rs.(2,52,912/- + Rs.1,75,512/-) or Rs. 4,28,424/- is set aside: CESTAT
+ the appellant have rightly claimed abatement, accordingly they have paid their service tax liability being 50% of the tax payable. Admittedly, balance 50% of service tax is payable by Narmada Gelatine Ltd. being a corporate entity. Further, I hold that no service tax can be demanded on the differential value as per profit & loss account, of Rs. 75,647/-, as service tax is chargeable on accrual basis i.e. the liability occurs immediately on raising of the bill for the service provided or to be provided, whereas the appellant have maintained their account on cash basis/receipt basis. Accordingly, the demand of Rs. 64,259/- is set aside. (Para 8)
+ So far the demand on other receipts as per profit & loss account Rs. 47 lakhs is concerned, I find that the demand of tax has been made arbitrarily without relating the said receipt to any service provided, only on the allegation that the appellant did not provide any supporting documents with respect to the same and have demanded service tax of Rs. 5,85,920/-. The Counsel explains that the said receipt is in respect of construction of individual houses and the same is an exempted activity under the service tax provisions. Accordingly, the demand is hereby set aside. So far the demand of Rs. 18,540/- on house rent is concerned, I find that no service tax is chargeable on house rent of residential premises. Thus, this demand of Rs. 18,540/- is set aside. (Para 9) + So far the demand of Rs. 7,416/- with regard to tower rent is concerned, though the said amount have been shown under the head "tower rent" but in actuality this has been received by way of compensation, and not towards any other service rendered. Thus, the demand of Rs. 7,416/- is set aside. (Para 10)
- Appeal allowed: DELHI CESTAT
2022-TIOL-1023-CESTAT-MUM
Inventurus Knowledge Solution Pvt Ltd Vs CCT
CX - The present appeal is directed against an order dated 23.10.2019 passed by the learned Commissioner of Central Excise and Service Tax (Appeals), Raigad - Vide the order, the first appellate authority has rejected the refund application filed by the appellant for the period January 2017 to March 2017 and April 2017 to June 2017 on the ground of limitation provided under Notification No. 12/2013 dated 01.07.2013 as amended - Further, refund application for an amount of Rs.2,388/- was also rejected on the ground that the services were availed for the unregistered premises.
Held - The submissions of appellant to the effect that date of payment of advance amount is the date of payment of premium has not been considered by the authorities inasmuch as no such finding to such extent has been recorded in this regard - Since the appellant, at this juncture, submitted the working sheet mentioning that the refund application was filed within stipulated time of one year from the relevant date, the refund benefit should be available to the appellant - There is force in submission of appellant that the date of payment of premium is specifically to be examined by original authority for ascertaining fact regarding the time bar aspect as provided in the said notification for grant of the refund benefit - Matter remanded for re-consideration: CESTAT
- Case remanded: MUMBAI CESTAT
2022-TIOL-1022-CESTAT-AHM
Satish Mehta Vs CC
Cus - The appellants have challenged letters/ order issued by revenue granting refund of sale proceeds of Gold - Moot question to be decided is as to whether appellants are entitled to receive differential value of seized gold between the value prevailing on date of melting and value as on date of which the cheque was given to appellant - During disputed period, matter was sub judice before Tribunal, but Department in a haste manner has disposed of the goods without seeking permission from appellate court where matter was sub judice - Thus, Department has committed a serious mistake by disposing disputed goods which was subject matter of an appeal - Department also not intimated the appellants regarding disposal of confiscated gold - The act of department ex-part cannot be held as proper and legal - In Kailash Ribbon Factory Ltd., Delhi High Court held that it is a serious lapse on the part of department when it auctioned confiscated goods without permission of Tribunal during pendency of appeal without even giving notice to appellants - It was held that department has to refund declared value of goods with interest per annum from date of auction of goods - Action of department is clearly in gross violation of principles of natural justice, hence same cannot be allowed to sustain - Appellants are entitled for refund of differential value of gold as claimed by them alongwith interest: CESTAT
- Appeals allowed: AHMEDABAD CESTAT |
|
