2023-TIOL-1383-HC-P&H-VAT
Dharam Pal Goyal Vs State of Punjab
Whether since the allegations against the assessees of having contravened the provisions of the VAT Act with an intent to evade tax cannot be sustained, criminal proceedings on the same set of allegations cannot continue - YES: HC
- Assessees' revision allowed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-970-CESTAT-KOL
Suparna Karmakar Vs CC
Cus - The present appeal was filed against an order passed by the Commissioner (Appeals) wherein the appeal filed by the Assessee was dismissed on grounds of limitation - The Assessee also claimed to have approached the jurisdictional High Court, but was directed to avail alternate remedy of appeal.
Held - Considering the order passed by the High Court, it is seen that the Court did not condone the delay in filing appeal before the Commissioner (Appeals) and only observed that the Assessee was entitled to avail alternate appellate remedy against the order sought to be challenged - Moreover, as per Section 128 of the Customs Act 1962, the assessee's appeal was filed beyond the condonable period - Hence the order rejecting the Assessee's appeal on grounds of limitation, warrants being upheld: CESTAT
- Appeal dismissed: KOLKATA CESTAT
2023-TIOL-969-CESTAT-AHM
J B Exports Vs CCE & ST
ST - Appellant is engaged in export of goods to foreign buyers - While raising invoices in sale invoice the appellant have deducted 10%/12.5% as commission and after deduction of said commission the amount was realized against exports proceeds - Case of department is that since the deduction from invoice value was made in nomenclature of commission - It is a commission paid to foreign buyer and which is chargeable to Service Tax as commission agent service under 'Business Auxiliary Service' - In present transaction only appellant being a seller of goods and foreign buyer of goods are involved - Relationship between appellant and foreign buyer is of seller and buyer of goods and transaction is purely of sale of goods - Even, though the word 'commission' is mentioned in invoice and same was deducted from sale price, it is nothing but extended discount to buyer - The commission shall be chargeable to Service Tax only in case, if there is a third party who has independently provided commission agent service in relation to sales promotion and related service - No independent sales commission agent is involved - Therefore, even though deduction was made in invoice under nomenclature of commission but same is not in nature of commission, but it is only a discount and sales discount cannot be termed as a service charge - Tribunal has taken a consistent view that merely by mention of commission or any other term, whereby deduction was given in sale invoice, same cannot be treated as commission for purpose of levy of Service Tax under 'business Auxiliary Service' - Accordingly, the demand of service tax on the commission shall not sustain - The entire fact about commission being shown deduction in sales invoice was very much in knowledge of department - Appellant being registered manufacturer with Central Excise having filed their regular return to department, there is absolutely no suppression of fact of mis-declaration on the part of appellant - If at all there is a service tax liability on commission, appellant is not only entitled for Cenvat credit but also prima facie eligible for refund, as said commission service is exclusively in respect of export of goods - For this reason also, demand for extend is not invokable - Accordingly, demand of service tax on commission as well as on GTA service is not sustainable also on ground of limitation - Impugned orders are not sustainable, same are set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-968-CESTAT-AHM
Citilink Travels Vs CCE & ST
ST - The Appellant provided buses for transportation of students, facilities and staff to Vadodara Institute of Engineering, which is an educational institution - The Appellant had charged bus fees as prescribed by the Institution from the students and staff as per the contract. The case of the department is that the appellant is liable to pay service tax under the category of rent-a cab service.
Held - The issue lies in a narrow compass that transportation by bus for students and staff of educational institute is liable to service tax or otherwise - There is no dispute in the fact that for the purpose of transportation by bus the appellant had entered into a contract with the education institution namely Vadodara Institute of Engineering which is undisputedly an education institute - From the definition of rent - a - cab scheme operator service, the motor vehicle rented for use by an education institute shall not be included within a meaning of a cab, therefore, renting of bus for an educational institution is clearly excluded from the definition of 'cab' for the purpose of levy of service tax under rent-a-cab scheme operator service - As per the CBEC Letter F. No.137/70/2007- CX.4 dated 26.04.2008 that school running transport services for their students are not liable to payment of service tax under the category of tour operator - Therefore, the activity in question is not taxable under rent - a - cab operator service: CESTAT
- Appeals allowed: AHMEDABAD CESTAT |
