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2022-TIOL-1090-CESTAT-AHM
Triton Communication Pvt Ltd Vs CST
ST - The appellant is providing service falling under the category of 'Advertising Agency Service' - Scrutiny of the appellant's records, revealed that they purchased the time slots from electronic media for which they got agency commission and sold the same slot of time to their clients who in turn used the slot for screening the advertisements - It was further revealed that the electronic media raised bills to Appellant on the time slots sold to them and charged them service tax under the category of "Broadcasting Service" - It was contended that Appellant further issued bills to their clients included the gross value of broadcasting service and the service tax charged by the electronic media - Further, it was contended that in view of definitions and provisions of section 65 of the Finance Act the activities of appellant do not qualify as broadcasting agency nor can be classified under Broadcasting services - Thus, appellant is neither Broadcasting agency nor has provided broadcasting services, but have collected the service tax on broadcasting charges from their clients under the category of "Broadcasting Service" - Appellant have contravened the provisions of Section 73A(2) of the Finance Act, 1994 in as much as they have collected the service tax, which is not required to be collected from their clients and have failed to pay the amount so collected to credit of the Central Government - The amount of service tax thus recovered by appellant from their clients is required to be recovered from them under Section 73A(3) of the Finance Act, 1994 - Accordingly, SCN dated 24.10.2013 was issued demanding service tax amounting to Rs. 5,74,98,622/- under Section 73A(2), 73A(3) and Section 73(1) of the Finance Act, 1994 - The SCN also proposed to demand interest on the above amounts under Section 73B and also imposed penalties under the provisions of the Finance Act - The case was adjudicated by the Commissioner who vide order confirmed the demand of service tax along with interest and imposed penalties under Section 76, 77 and 78 of the said Act. Held - It is also admitted fact in the present case that the retainership fees or commission income separately charged and collected from the clients, appellant paid the service tax under the advertising services - The said undisputed facts clearly established that the present one is not a case where the appellant had collected any amount as service tax and retained the same by not depositing the same with the Government exchequer - We find that the Appellant has collected the service tax from the clients on behalf of Broadcasters in relations to service of "Broadcasting services" and transferred the said service tax amount to Broadcaster for discharging service tax liability on "Broadcasting services" - In the present matter revenue nowhere disputed the facts that Broadcaster had paid the said disputed service tax to Government: CESTAT Held - When there is no dispute at all on the facts that the appellant has not retained the amount collected from the client as service tax and when there is no dispute at all on the facts that the appellant has passed on such amount entirely to the broadcasters who have paid such amount to the Government and since no amount retained by the Appellant in the present case, demand of service tax by applying the provisions of Section 73A of the Finance Act is not correct - The transaction of appellant not covered under the provisions of Section 73A of the Finance Act - Therefore, we find that the impugned order confirming demand under Section 73A of the Finance Act are not sustainable and needs to be set aside: CESTAT Held - Without prejudice, It is also seen that the amount received from the clients/customers have been subjected to Service Tax at the hands of the Broadcasters - The Revenue also admitted that appellant do not qualify as Broadcasting agency - Hence, on the Broadcasting Service actual liability of payment of services tax is on the Broadcasting company who provide the said services to the clients - In the present matter Broadcasters already deposited the service tax amount to government as allegedly collected by the appellant from clients against the Broadcasting Services and demand of service tax again from the appellant would amount to double payment - However, the Broadcasters having already paid such collected amount to the government, the appellant cannot be asked to deposit the same again with the Government exchequer - It is our considered view, that once tax has already been paid on the services, it was not open to the Department to confirm the same against the appellant, in respect of the same services - Accordingly, the impugned order liable to be set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1089-CESTAT-MAD
RPP Infra Projects Ltd Vs CGST & CE
ST - Issue arises is, whether penalty imposed under section 77 and 78 of Finance Act, 1994 is legal and proper - Department has to refrain from issuing SCN if appellant pays up service tax along with interest as ascertained by himself or by officers - Appellant has paid up service tax along with interest on 4.5.2012 and 16.8.2012 - SCN was issued only on 22.10.2012 - One of the argument put forward by appellant is that there was no deliberate suppression and they were under bona fide belief that said amount of freight paid which has been accounted in ledger as "conveyance others" was not taxable as per definition of GTA services during relevant period - There was confusion as to whether freight paid on single pack and multiple packs transported in a single consignment attracts levy of service tax or not - Appellant on being pointed out has paid service tax immediately - They have paid 1% penalty in case the matter falls under section 73(4A) of Finance Act, 1994 - Conduct of appellant pursuant to verification of accounts shows that they had intention to pay up service tax - Further, payment of service tax on GTA service during relevant period was under litigation before various forums and there were conflicting decisions - It is argued that entire issue is a revenue neutral as they would be eligible to take credit of service tax being tax paid on input services - There is no deliberate suppression of facts - On such score, sub-section (3) of section 73 would apply - Penalties imposed under sections 77 and 78 are not legal and proper and are set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-1088-CESTAT-MAD
Indian Additives Ltd Vs CGST & CE
CX - Appellant is engaged in manufacture of "Lubricating Oil Additives" - For the period from 2014-15 and 2017-18 (up to June), appellant availed CENVAT Credit of Service Tax paid on Housekeeping Services - Said services were received and utilized by appellant at their office premises in Mumbai - Department was of the view that credit availed on capital goods and Housekeeping Services is not eligible - The definition of capital goods excludes 'any equipment or appliance used in an office' of manufacturer and hence, credit availed on capital goods, namely, computer server, installed in Mumbai office of appellant prior to 01.04.2016 is ineligible - Definition of "capital goods" after 01.04.2016 does not exclude 'any equipment or appliance used in an office' - For this reason, credit availed by appellant on computer server after 01.04.2016 would be eligible - In regard to Housekeeping Services, credit availed by appellant has been disallowed alleging that these services are consumed in Mumbai office - Mumbai office is an integral part of business of appellant and is doing administrative work in respect of their factory - Credit availed by appellant on Housekeeping Services at their Mumbai office is eligible - Authorities below have imposed equal penalty on appellant under Rule 15(2) of CENVAT Credit Rules, 2004 r/w Section 11AC of Central Excise Act, 1944 - However, the issue being an interpretational one and appellant having been eligible to avail the credit on the said capital goods after 01.04.2016 as well as credit on Housekeeping Services, penalty imposed requires to be set aside: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2022-TIOL-1087-CESTAT-DEL
Sunshine Steel Industries Vs CCGST
CX - Assessee is in appeal against impugned order by which demand with interest and penalty has been set aside but demand of Rs. 13,32,087/- with interest and penalty of Rs. 1,33,209/- has been upheld - Present appeal therefore, concerns the demand confirmed for SS Patta and SS Utensils sold to RSSL - With regard to SS Patta, appellant submitted that this was not manufactured by them and therefore, provisions of section 4 of Central Excise Act, 1944 and Valuation Rules would not be applicable - It is a fact that in impugned order, Commissioner has recorded a finding that SS Patta was not manufactured by appellant - It appears that by mistake this demand has been confirmed - The confirmation of demand on SS Patta needs to be set aside - With regard to SS Utensils, demand has been confirmed under Rule 8 of Valuation Rules - As demand is of Rs. 1,95,598/- only and considering the difficulties in checking the price at which each of SS Utensils was sold by RSSL, remanding the matter may not serve any purpose and value can be fixed by Tribunal exercising powers under Rule 11 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules - Having considered the matter in its entirety and average mark up of 3 – 4% for product indicated by appellant, value of SS Utensils cleared by appellant be re-determined as 3.83% of sale price - The order passed by Commissioner (A) in so far as it confirms demand of duty on SS Patta is set aside and demand on SS Utensils is reduced from Rs. 1,95,598/- to Rs. 75,000/- - Penalty imposed on appellant should be set aside: CESTAT
- Appeal partly allowed: DELHI CESTAT
2022-TIOL-1086-CESTAT-DEL
Rajasthan Small Industries Corporation Ltd Vs CC
Cus - The issue that arises for consideration is as to whether the recovery of cost/recovery charges could have been confirmed by Commissioner exercising powers under regulations 5(2) and 6(1)(o) of Handling of Cargo in Customs Area Regulations, 2009 (2009 Regulations) and whether penalty could have been invoked - Said issue was examined by Division Bench of Tribunal in Container Corporation of India 2019-TIOL-574-CESTAT-DEL - Tribunal after examining the various provisions of regulation, observed that the adjudicating authority could not have ordered for recovery of outstanding cost recovery charges - This issue was also examined at length by Division Bench of Tribunal in M/s. The Thar Dry Port and it was held that Commissioner could not have ordered for cost recovery charges under aforesaid provisions of regulations 5(2) and 6(1)(o) of 2009 Regulations - Penalty that was imposed under regulation 12(8) was also set aside - It has, therefore, to be held that Commissioner committed an illegality in ordering recovery cost/recovery charges under aforesaid provisions of 2009 Regulations - The penalty that has been imposed is also liable to be set aside : CESTAT
- Appeals allowed: DELHI CESTAT |
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