Saturday, October 3, 2015

SERVICE TAX RECENT COURT CASES & DECISIONS

GEE PEE AGRI PVT LTD VS COMMISSIONER OF C. EX. & CUSTOMS [SUPREME COURT]

BRIEF: The revenue cannot hold refund of service tax, even if there remains a dispute in entitlement of refund, because revenue is not entitled to do such.

COMMENTS: In the above case, the Ho le Supreme Court held that the eligible person was to get the refund. It was clear that refund of service tax was due either to the petitioner or the merchant exporter, as verified from the Additional Solicitor General. Although, there was a dispute regarding entitlement of refund of service tax, the respondents i.e. revenue could not hold the service tax as they were not entitled to do such. Pursuant to discussions & the above facts, it was held that service tax should be refunded to the petitioner within six weeks .The petitions were accordingly disposed.[Decided in favour of assessee]

COMMISSIONER OF SERVICE TAX, BANGALORE VS M/S KHODAY BREWERIES LTD [CESTAT BANGALORE ]

BRIEF: If assessee pays service tax under force during investigation & demand gets dropped after adjudication process, the deposited amount has to be considered as pre-deposit or deposit & limitation is to be considered from date of adjudication order instead of the date of deposit.

OUR COMMENTS: In the above case, the Ho le CE“TAT Bangalore held that the contention of revenue that though the appellant had paid service tax correctly in 2005-06, the refund claim in 2010 was rejected correctly for it being beyond the period specified for filing the refund claim, is not correct. The commissioner (appeals) referred to decision in 2549 of 2010 that if payment by assessee is not voluntary, but forced, such would be payment under protest & cannot be thrown out on limitation grounds. Further, pursuant to decision of Ho le CE“TATin the case of Foods, Fats and Fertilisers Ltd. [2010 (20) STR 482 (Tri. Bang.)], the commissioner (appeals) held that payment of service tax by appellant during investigation (based on offi er s advice) might be forced& if demand gets dropped after adjudication process, the deposited amount has to be considered as pre-deposit or deposit. Thus, the limitation has to be accounted from the date of adjudication order instead of the date of deposit of amount. Hence, the impugned order of commissioner (appeals) is correct in this regard & the appeal is rejected accordingly. (Decided against Revenue)

M/S AUTO WINDOW VS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II [CESTAT MUMBAI]

BRIEF: If an activity itself is not taxable & assessee pays service tax after pointing out by the department, it alone cannot be the ground to make allegation of suppression of facts & fraud & refund claim for payment of service tax cannot be denied on the basis of such improper allegation.

OUR COMMENTS: In the above case, the Hotel CESTAT Mumbai held that job work activity was exempted from service tax payment as service provider carried out the job on the material supplied by the appellant & returned the job-worked goods to the appellant and also used the said goods to manufacture other final product cleared on payment of duty. Thus when activity itself was not taxable & appellant discharged the service tax after pointing out by officers, no suppression can be alleged. Further, the concerned jurisdictional office did not issue any show cause notice to service provider for recovery of service tax & the service provider made categorical request for waiver of show cause notice u/s 73(3) of Finance Act, 1994 on the ground of payment of service tax along with interest. Further, payment of service tax by the service provider and issuance of supplementary invoices there against does not amount to suppression of facts by the service provider. It was also found that the only ground to deny refund claim was the payment of service tax on detection by department, which alone is not sufficient to make allegation of suppression of facts by the appellant. Thus, there being no suppression of facts, mis-declaration, fraud etc. on the part of the service provider in making payment of service tax and issuance of supplementary invoices, appellant has correctly availed the Cenvat Credit. Hence, the impugned order is modified & appeal is allowed with consequential relief.[Decided in favour of assessee]

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