2023-TIOL-753-CESTAT-MAD
VLCC Health Care Ltd Vs CGST & CE
ST - The issue arises is, whether the assessee is liable to pay service tax at the revised rate of 12.24% for the period prior to 18.04.2006 - Authorities below have relied upon Board circular No.65/14/2003-ST - On perusal of circular, it is indeed clarified the situation of payment of service tax when the service becomes taxable subsequently - It does not talk about situation of enhancement or revision of service tax - The Tribunal in case of Vigyan Gurukul = 2011-TIOL-1724-CESTAT-DEL had analysed the very same issue wherein Tribunal has referred to Board's circular and after analysing the issue held that assessee is not liable to pay service tax on the advance payment received prior to 2011 as the liablility to pay service tax was on receipt basis during the relevant period - Demand cannot sustain and requires to be set aside - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-752-CESTAT-MAD
Stahl India Pvt Ltd Vs CGST & CE
ST - Appellants are engaged in manufacture of leather chemicals, intermediaries and dyes - They had entered into a Service Level Agreement (SLA) with their holding-company M/s. Stahl Holdings, BV, Netherlands and they had been paying service tax under head Management or Business Consultancy service on amounts received from their holding-company - In addition to SLA charges, the holding-company at Netherlands had also collected VAT @ 19% from appellant on which the appellant had not paid any service tax - Adjudicating authority has taken note of payments made by appellant on service charges raised in invoices and has set aside the demand pertaining to service charges - The demand that has been confirmed is only with regard to VAT amount - Period involved is prior to 18.4.2006 - Appellant has been called upon to pay service tax under reverse charge mechanism - Section 66A was introduced in Finance Act, 1994 only with effect from 18.4.2006 - Demand upto 18.4.2006 is set aside - Part of the demand is also confirmed from 18.4.2006 to July 2007 - It is submitted by appellant that amounts were paid under book adjustments - So also VAT refunds were received by such book adjustments from their associated enterprise, situated at Netherland - Demand has been made on the book adjustments which are made prior to 10.5.2008 - When the entries are made in books of accounts of appellant in respect of amounts which are to be paid to overseas entities prior to 10.5.2008, there is no liability to pay service tax merely on such accounts - Appellant has argued on the ground of limitation also - Supreme Court in case of I ndian National Shipowners Association = 2008-TIOL-633-HC-MUM-ST had held that the demand cannot be made prior to introduction of section 66A in Finance Act, 1994 - Further, the situation is revenue neutral as appellant would be able to take credit of service tax paid under reverse charge mechanism for relevant period - Department has not been able to establish any positive act of suppression of facts with intent to evade payment of tax on the part of appellant - Demand raised invoking extended period cannot sustain and SCN is time-barred - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-751-CESTAT-AHM
CC Vs Baburam Harichand
Cus - The revenue pointed out that assessee had filed refund claims of SAD paid by them on import of "Betel Nuts Industrial Grade" - It was found that assessee is Kirana traders and the products sold by them is edible betel i.e. "Supari" - Revenue under the belief that the item imported by them i.e. industrial betel is not same as edible Betel denied the refund claim - The Commissioner (A) has however, allowed the refund claim holding that edible Betel nut and industrial Betel nut are one and the same - Commissioner (A) has however denied the benefit of two Bills of Entries where the refund has been filed beyond limitation - There are detailed reasons given in impugned order about the item imported and items sold by assessee being the same - The co-relation between imported goods and the goods sold by assessee has not been contested by revenue - Revenue's appeal does not counter any arguments given by Commissioner (A) - No merit found in the appeal filed by revenue - Assessee has filed appeal against rejection of refund claim on the ground of limitation - A perusal of appeal filed by assessee shows that they have enclosed challan of payment of duty, indicating date of payment as 10.02.2011 and similarly some evidence were given - It is noticed that this evidence has not been examined by Commissioner (A) - Appeals filed by assessee are allowed by way of remand to Commissioner (A) to examine the evidence produced by assessee: CESTAT
- Revenue's appeals dismissed: AHMEDABAD CESTAT
2023-TIOL-750-CESTAT-AHM
Vertellus Specialty Materials India Pvt Ltd Vs CCE & ST
CX - The issue would relate to refund claims made by appellants under Rule 5 of CCR, 2004 and for earlier period also - Entire refund claim in question had been filed under Rule 5 of rules which is a beneficial provision for manufacturer who cleared final product or intermediate product for export without payment of duty under bond - There is no dispute that appellant had exported the goods without payment of duty, further, appellants have not availed drawback or rebate of duty hence refund of credit shall be allowed, as the amount cannot be adjustable against clearance of home consumption or for export on payment of duty - Tribunal in case of Jenntex Engg. Company 2008-TIOL-2250-CESTAT-MAD , observed that the ground on which refund claim was rejected that assessee could have exported the goods on payment of duty utilizing credit is a wrong ground and a misdirected one - On a plain reading of Rule 5 of said Rules, it is clear that assessee is entitled to claim refund on accumulated credit "where for any reason such adjustment is not possible" - Appellant will be eligible for refund of accumulated credit under Rule 5 of CCR and notifications issued there under subject to various conditions of that Rule and related notifications being satisfied - Further after 01.04.2012, refund amount is required to be calculated on the basis of formula prescribed in said rule - While upholding the appellant's contention that they are eligible for refund of accumulated credit under Rule 5 ibid, the matter is remanded back to original authority only to the limited purpose of verifying conditions of Rule and Notification issued there under and calculation of refund amount after 01.04.2012 as per the formula of Rule 5 ibid: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
