Goods and Services Tax – Levy of GST – sale of goods outside India – The goods sold in the subject transaction are non-taxable supply as no tax is leviable on them till the time of customs clearance i
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Goods and Services Tax – Started By: – satbir singhwahi – Dated:- 4-12-2018 Last Replied Date:- 9-12-2018 – EXPORTING GARMENTS FIRM , PAYING OCEAN FREIGHT ON IMPORTS AND EXPORTS. PLS GUIDE THE APPLICABILITY OF RCM FOR JULY 2017 TO TILL DATE. – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = Your query requires some more details. – Reply By satbir singhwahi – The Reply = SIRGARMENTS EXPORTING FIRM :1. PAYING OCEAN FREIGHT ON IMPORT OF CLOTH. WHETHER RCM IS APPLICABLE ON SUCH PAYMENT OF OCEAN FR
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Goods and Services Tax – GST – Dated:- 4-12-2018 – Total GST refunds to the tune of ₹ 91,149 crores have been disposed by CBIC and State authorities out of the total refund claims of ₹ 97,202 crores received so far. Thus, the disposal rate of 93.77 per cent has been achieved. The pending GST refund claims amounting to ₹ 6,053 crores are being expeditiously processed so as to provide relief to eligible claimants. Refund claims without any deficiency are being cleared expeditiously. In case of IGST refunds, about 95 % (Rs 48,455 crores) of the total IGST refund claims (Rs. 50,928 crore) transmitted to Customs from GSTN as on 28.11.2018 have already been disposed. The remaining claims amounting to ₹ 2,473 crores are he
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Goods and Services Tax – GST – By: – Sandeep Rawat – Dated:- 4-12-2018 – Appointment of the GST Auditors under section 35(5) and section 44(2) of the CGST Act read with Rule 80(3) of the CGST Rules [read with the corresponding provisions of the State / Union Territory Goods and Services Tax Acts] is to certify the Reconciliation Statement in GSTR 9-C prepared for the financial year ended 31st March 2018. In this context, clear responsibilities play a very important role to implement the bonafide purpose of the GST audit. I have prepared the scope of the management as well as GST auditor responsibilities in GST audit under the GST laws. Management Responsibilities Compliance with GST laws and preparation of GSTR 9C in compliance of those laws The Management is responsible for compliances with the GST laws, comprising the Union Territory Goods and Services Tax / Central Goods and Services Tax / State Goods and Services Tax Act, 2017* and Integrated Goods and Services Tax Act, 2017 and t
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lly accepted in India and in line with the requirements under the GST laws and assessing the accounting principles used and significant estimates made by the Management in the presentation of financial statements The audit will be conducted in accordance with the auditing standards generally accepted in India and in line with the requirements under the GST laws. Those standards require that GST auditor plan and perform the audit to obtain reasonable assurance as to whether the relevant GSTR 9C is free of material mis-statements. An audit includes examination on a test basis, using the concept of materiality, evidence supporting the amounts and disclosures in GSTR 9C. The audit may also include assessing the accounting principles used and significant estimates made by the Management in the presentation of financial statements. Consider- internal control. GST auditor will consider, solely for the purpose of planning of the audit and determining the nature, timing, and extent of the audit
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as may be applicable and the effectiveness of internal control over financial reporting. Auditing standards generally accepted in India also require that, at the conclusion of the audit, GST auditor obtain representation letters from certain members of management about these matters. The responses to those inquiries, the written representations, and the results of the audit tests comprise the evidential matter GST auditor will rely upon in forming an opinion on the GSTR 9C or other reports. Owing to the importance of Management s representations to an effective audit and review, the enterprise agrees liability and costs relating to the services under the letter attributable to any misrepresentations by Management. Management is responsible for providing him with all financial records and related information / documents on a timely basis, and its failure to do so may cause him to delay the report, modify the procedures, or even terminate the engagement. Working papers prepared in conjun
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Goods and Services Tax – Started By: – Shyam Agarwal – Dated:- 4-12-2018 Last Replied Date:- 5-12-2018 – Sir, Mr.A purchased a Motor Car as a business assets in GST Era. But as ITC is blocked,He has not taken the ITC of the same. Now, He wants to Gift the same to his relative WITHOUT CONSIDERATION. 1.Whether GST is payable on Gift of such car as clause 4(a) of Schedule-II says about applicability of GST on business asset even without Consideration, even with or without ITC? 2.If yes, How GST sh
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2018 (12) TMI 341 – CESTAT NEW DELHI – TMI – Refund of cenvat credit taken on the inputs services – inputs services used in the manufacture of the finished goods which were subsequently exported – appellant is denied eligibility to avail cenvat credit on input services due to being exclusively used for exempted goods as per Rule 6(1) of CCR, 2004 and refund is also denied – refund also denied on the ground of non-registration of manufacture and also on the ground of non-distribution of credit – Held that:- Any manufacturer who clears a final product or an intermediary product for export is entitled for credit subject to above conditions. The appellant in the present case admittedly is engaged in clearing excisable goods however the controversy is whether the goods i.e. gems and jewellery were fully exempted or not.
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Under Central Excise, “exemption” means exemption by Notification No. under Section 5A of Central Excise Act, 1944 thus goods exported under bonds are not exempted f
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cope of “exempted goods” – Rule 7(b) of CCR, 2004 to reject the refund is not applicable.
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Refund allowed – appeal allowed – decided in favor of appellant. – Service Tax Appeal Nos. ST/52143, 52144 & 52145/2018 [SM] – FINAL ORDER NO. 53352-53354/2018 – Dated:- 4-12-2018 – MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Sanjiv Agarwal & Mr. MB Maheshwari, Advocates Present for the Respondent: Mr. P.R. Gupta, DR ORDER PER: RACHNA GUPTA Three of the above mentioned Appeals are disposed of vide this Order as the Commissioner (Appeals) has passed a common Order with respect to three Show Cause Notices in three of these Appeals. Common Order dated 16.02.2018 has been challenged before this Tribunal. 2. Relevant facts for the purpose are: The appellant herein is engaged in manufacturing and export of gems and jewellery. He had filed a refund claim under Rule 5 of Cenvat Credit Rules, 2000 and Notification No. 27/2012-CE dated 18.06.2012 in respect of the cenvat c
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tices are as follows:- Appeal No. SCN Period Refund amount & date Ex-parte OIO No./ Date Common OIA No./ Date ST/52143/2018 C.No. V(71)R-5/Ref/246/2015/5603 dated 10.12.2015 July 2014 to September 2014 Rs.5,14,709/- 30.09.2015 380/Ref./2015 dated 31.12.2015 37 to 39 (NG) ST/JPR/2018 dated 16.02.2018 ST/52144/2018 C.No. V(71)R-5/Ref/261/2015/5601 dated 10.12.2015 October 2014 to December 2014 Rs.4,97,807/- 08/Ref./2016 dated 05.01.2016 37 to 39 (NG) ST/JPR/2018 dated 16.02.2018 ST/52145/2018 C.No. V(71)R-5/Ref/307/2015/5827 dated 21.12.2015 January 2015 to March 2015 Rs.1,11,374/- 09/Ref./2016 dated 11.01.2016 37 to 39 (NG) ST/JPR/2018 dated 16.02.2018 3. I have heard Mr. Himanshu Bansal, Ld. Advocate for the appellant and Mr. P.R. Gupta, Ld. DR for the Department. 4. It is submitted on behalf of the appellant that the refund claim was filed of accumulated cenvat on inputs/ input services used for export under Rule 5 of CCR, 2004 read with Notification No. 27 dated 18.06.2012. The D
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ods of the appellants may be excluded from the scope of exempted goods and may be made eligible to the refund claim under Rule 5 read with Rule 7 of CCr, 2004. 4.2 Ld. Counsel has also mentioned that as per the definition of exempted goods in Rule 2(d) of CCR, 2004 those goods which are under entry no. 67 and 128 of Notification No. 12 dated 17.03.2012 (as has been relied upon by the Commissioner(Appeals) by the Adjudicating Authorities below) but the goods of the appellant fall under none of those categories for this reason also the goods cannot be held as exempted goods and the claim cannot be rejected in accordance thereof. The Order under challenge is therefore prayed to be set aside; Appeal is prayed to be allowed. 5. Ld. DR on the other hand has justified the order and prayed for the dismissal of Appeal. 6. After hearing both the parities my observations and opinion is as follows:- The appellant had filed the refund claim under Rule 5 of Cenvat Credit Rules, 2004 and Notification
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rs a final product or an intermediary product for export is entitled for credit subject to above conditions. The appellant in the present case admittedly is engaged in clearing excisable goods however the controversy is whether the goods i.e. gems and jewellery were fully exempted or not. The appellant has drawn attention to the Ministry of Law advice dated 29.10.1974 as circulated vide CBEC Circular No. 278/112/96-CX dated 11.12.1996 which reads as follows:- Under Central Excise, exemption means exemption by Notification No. under Section 5A of Central Excise Act, 1944 thus goods exported under bonds are not exempted from duty. A conjoint reading of this Circular with the above requirements of Rule 5 makes it clear that a manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking which is exported without payment of service tax shall not be an exempted goods and as such shall be allowed refund of cenvat cre
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GST – States – F16 (21) Tax/Juris(GST)/CCT/2017/1377 – Dated:- 4-12-2018 – Government of Rajasthan Commercial Taxes Department Order Jaipur, Dated: December 4, 2018 In exercise of the powers conferred by sub-section (1) of Section 5 of the Rajasthan Goods and Service Tax Act, 2017(Act No. 9 of 2017), I, Alok Gupta, Commissioner of State Tax, Rajasthan, hereby, make the following amendment in the order number F16 (21) Tax/Juris(GST)/CCT/2017/3261 dated 11.07.2017, as amended from time to time, n
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2018 (12) TMI 366 – CESTAT NEW DELHI – TMI – Short payment of service tax – mining of mineral, oil or gas services provided to Madhya Pradesh State Mining Corporation Ltd. – suppression of facts – penalty – Held that:- There appears no infirmity in the findings based on the statement of services provided during the relevant year, as provided by the appellant alongwith the ledger accounts of the service recipients that the appellant have paid service tax in excess during the period in question and that the charge of short payment of service tax as alleged in Show Cause Notice is not based on any evidential proof – demand withheld.
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CENVAT credit wrongly availed – wrongly availed credit utilised for payment of service tax for the period July-September 2012-13 – the credit has been availed on the purchase of two machines vide two invoices dated 06.06.2011 and 24.12.2011 which were to be used to execute the work order of mining between the Corporation and the appellant – Held that:-
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as wrongly been considered as a ground to deny the availment of cenvat credit on the capital goods used by the appellants for providing the output service – credit allowed.
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Non-payment of late fees – ST-return for the period April-September 2011-12 filed on 22.04.2012 i.e. after a delay of 98 days – Held that:- It is observed that details of amount received and service tax paid for the last 5 years of period in dispute were provided by the appellant to the Department. Based thereupon, it is the finding of the authorities below that the service tax was paid in excess by the appellant during the period in question. Confirming the demand of late fee is apparently a contradictory finding and resultantly is not sustainable – demand set aside.
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Penalty – Held that:- The onus was of the Department to prove the suppression of fact on part of the appellant to evade the payment of duty but the record of the matter and even the findings of the appellate authority are sufficient to prov
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h State Mining Corporation Ltd. (hereinafter called as Corporation), however is not discharging the whole tax liability. Notices were accordingly served to the appellant to provide the requisite documents. Despite repeated reminders, the documents were not provided by the appellants. It is in furtherance of notices to the Corporation that details of payment made to the noticee alongwith the copies of bills issued by the noticee for the period of 2011-12 to 2015-16 alongwith the copies of work order between them were provided to the Department. On perusal thereof, the Department alleged as follows: (i) Noticee/ appellant have short paid the service tax amounting to ₹ 11,43,240/- during financial year 2011-12 to 2015-16 and has suppressed the facts from the Department. (ii) The appellant has wrongly availed the cenvat credit of ₹ 4,58,476/- on capital goods and utilised the same for payment of service tax for the period July-September 2012-13. (iii) The appellant has filed ST
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eriod of time, appellant were executing mining contracts at Hirapur, District Sagar as well as at Megh Nagar District Jhabua. For the purpose of excavation of rock phosphate and crushing the same, appellant ordered two machines for executing the contract at Megh Nagar site however by the time machines could arrive, the machines were diverted to appellant s Hirapur site where the credit was taken during quarter April-June 2011 and same was duly exhibited/ reported in appellants ST-3 return for the period April-June 2012. It is further submitted that ST-3 returns both for Megh Nagar for the period October 2011 to June 2012 and for Hirapur for the period April 2011 and June 2012 were duly enclosed on the record showing that the appellant has availed credit only at Hirapur site and not at Megh Nagar site. Resultantly, the cenvat credit availed has wrongly been denied to the appellant. The appellant had made a substantial compliance of Rule 9 of Cenvat Credit Rules, 2004 however with minor
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n the Order under challenge. Appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, we are of the opinion that the demand of alleged short levy has already been dropped by the authorities below. No appeal has been filed by the Department against the same. There otherwise appears no infirmity in the findings based on the statement of services provided during the relevant year, as provided by the appellant alongwith the ledger accounts of the service recipients that the appellant have paid service tax in excess during the period in question and that the charge of short payment of service tax as alleged in Show Cause Notice is not based on any evidential proof. The findings are therefore upheld. 6. Now coming to the findings about confirming the recovery of the Cenvat credit of ₹ 4,58,476/- alleging the same to be wrongly availed. It is observed that the credit has been availed on the purchase of two machines vide two invoices dated 06.06
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is rather permissible to be taken on both these machines by the appellants in another unit irrespective of the invoices showing the different address of the appellant. We draw our support from the decision of this Tribunal in the case Tooltronic Vs. C.C.E. 2006(205) E.L.T. 946. Even the CBEC Circular as relied upon by the appellant has clarified that where the goods are ordered by registered / head office of the assessee and the invoice does not bear the consignee address, the credit ought not to be denied. 7. Now coming to the alleged lapse on part of the appellant qua the alleged procedural compliance, we are of the opinion that irrespective the Rule 9 required the production of original documents with complete particulars but it is quite oblivious that if the documents is not produced in original or if lost, the claim will not to be defeated especially when the Department is not in dispute about receipt of goods, their use in providing the output service and about the duty paid cha
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d by the appellants for providing the output service. Similarly, the findings about absence of all the particulars as prescribed under Central Excise Rules, 2002 / Rule 9(2) of CCR, 2004 are not sustainable. These findings are therefore set aside. 8. Now coming to the allegation of payment of late fee, it is observed that details of amount received and service tax paid for the last 5 years of period in dispute were provided by the appellant to the Department. Based thereupon, it is the finding of the authorities below that the service tax was paid in excess by the appellant during the period in question. Confirming the demand of late fee is apparently a contradictory finding and resultantly is not sustainable. 9. Finally coming to the imposition of penalty, the onus was of the Department to prove the suppression of fact on part of the appellant to evade the payment of duty but the record of the matter and even the findings of the appellate authority are sufficient to prove that the app
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2018 (12) TMI 367 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – Employees Group Insurance – Personal Accident Insurance Policies – Held that:- In the appellant’s own case, for the period October 2007 to May 2011, the department has allowed credit. The Commissioner (Appeals) have totally disregarded this decision. Instead of analysing the reason for allowing credit on such services after 1/4/2011, the Commissioner (Appeals) has brushed aside this order stating that major part is prior to 1/4/2011. I do not think this is sufficient reason to deviate from abiding the judicial discipline. The mechanical approach to issues without application of mind increases litigations.
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The Hon’ble High Court of Madras in the recent decision in M/s. Ganesan Builders Ltd vs CST, Chennai [2018 (10) TMI 269 – MADRAS HIGH COURT], has observed that when the insurance policies have been taken for compliance under the labour legislations, the same are eligible for credit.
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Credit allowed
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issioner (Appeals) and vide order impugned herein, the Commissioner (Appeals) allowed the appeal filed by department, thus disallowed the credit and confirmed the demand, but however sustained waiver of penalty. Aggrieved, the appellants are now before the Tribunal. 2. On behalf of the appellant, the Ld. Sr. Advisor of the company, Sh. K. Vijayasimhudu appeared and argued the matter. He submitted that the insurance policies are aimed to compensate the workforce in the event of any accident or untoward incident that may lead to injury or demise during the course of employment. Such insurance is not merely a welfare measure, but the appellant is duty bound to have such policies as envisaged under Workmen Compensation Act. Even the policy is specifically taken as under the Workmen Compensation Insurance Scheme. Therefore the credit is eligible. He further submitted that in the appellant s own case for the period after 1/4/2011 also, vide OIA No.58/2013 (M-II) dated 21.10.2013 the said ser
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No.58/2013 (M-II) dt.21.2.2013. The Commissioner (Appeals) have totally disregarded this decision. Instead of analysing the reason for allowing credit on such services after 1/4/2011, the Commissioner (Appeals) has brushed aside this order stating that major part is prior to 1/4/2011. I do not think this is sufficient reason to deviate from abiding the judicial discipline. The mechanical approach to issues without application of mind increases litigations. 6. The Hon ble High Court of Madras in the recent decision in Civil Miscellaneous Appeal No.2926/2017 dt.19/9/2018 in the case of M/s. Ganesan Builders Ltd vs CST, Chennai in para 11, 12.2, 12.3 and 13, has observed that when the insurance policies have been taken for compliance under the labour legislations, the same are eligible for credit. In my view, the adjudicating authority had correctly analysed the facts and the law contained in sub-clause (C) of the definition of input services and dropped the demand. The Commissioner (App
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2018 (12) TMI 416 – ALLAHABAD HIGH COURT – TMI – Deletion of penalty – Section 129 of the Uttar Pradesh Goods and Services Tax Act, 2017 – transportation of goods – Held that:- The explanation furnished by the assessee with respect to first transaction was found to be false. Even with respect to the goods that were seized which have resulted in the penalty proceedings, discrepancy in quantity of goods has been found to be established and, therefore, in his submission, the first Appellate Authority has erred in overlooking that vital aspect of the matter and in deleting the penalty – Matter requires consideration. – WRIT TAX No. – 1538 of 2018 Dated:- 4-12-2018 – SAUMITRA DAYAL SINGH, J. Counsel for Petitioner :- Bipin Kumar Pandey 1. Pres
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ellate Authority are perverse, inasmuch as this was the respondent's case that it had transported two consignments of different goods from Sonipat to Jhansi on 21.09.2018 and again on 24.09.2018 (disputed transaction). However, upon enquiry made, the explanation furnished by the assessee with respect to first transaction was found to be false. Even with respect to the goods that were seized which have resulted in the penalty proceedings, discrepancy in quantity of goods has been found to be established and, therefore, in his submission, the first Appellate Authority has erred in overlooking that vital aspect of the matter and in deleting the penalty. 5. Matter requires consideration. 6. Shri Subham Agarwal, learned counsel for the asses
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2018 (12) TMI 426 – CESTAT HYDERABAD – TMI – CENVAT Credit – common inputs and input services used of manufacture of goods as well as for taxable and exempt service – non-maintenance of separate records – Rule 6(3A) of CCR 2004 – Extended period of limitation – Held that:- The intention of the Legislature was that a manufacturer or a service provider should not avail the entire CENVAT credit of the service tax paid on common input services and should avail proportionate credit attributable to the taxable output service for which the CENVAT credit Rules provides for maintaining separate accounts.
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Appellant herein has followed this rule by taking the credit of only an amount which is attributable to the taxable services provided by him and not availing the CENVAT credit of the input services which are attributable to the trading activity. By availing only the CENVAT credit of the service tax paid attributable to the taxable services, in my view, appellant had complied with the pr
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s appeal is directed against Order-in-Appeal No. HYD-EXCUS-MD- AP2-0228-17-18-CE, dated 25.01.2018. 2. The relevant facts that arise for consideration are appellant herein is the manufacturer and sale of steel doors and also provides taxable services; is engaged in trading of hardware items. Appellant availed CENVAT credit of common input services as also input services and inputs; had not availed CENVAT credit of service tax paid on services utilised for exempted services and reversed the CENVAT credit attributable to trade activity based upon the turnover as provided under Rule 6(2) of Cenvat Credit Rules, 2004. It is the case of Revenue that appellant having not maintained separate accounts for the input services used for taxable and non-taxable services, is required to pay an amount as provided under Rule 6(3A) of CCR 2004. Appellant in his reply to the show cause notice pointed out that they had in fact availed CENVAT credit of the common input services attributable to the taxable
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hipping Services Pvt. Ltd. [2018(9) TMI 922-CESTAT-Bangalore]. It is his submission that the first appellate authority has tried to deviate/distinguish the judgment of the Tribunal in the case of Sify Technologies Ltd. only on the ground that the provisions of Rule 6(2) were worded differentially at that time and used differentially during the period in question in this appeal. He draws my attention to the provisions of Rule 6(2) which is to be interpreted in the case in hand. He would submit that they are covered by the provisions of Rule 6(2). Further, it is his submission that the demands are hit by limitation as the extended period is invoked for demanding ineligible CENVAT credit and that during the period in question, appellants filed returns with the authorities regularly and audit has taken place and the decision of the Tribunal in the case of Sanjay Automobile Engineering Pvt. Ltd. is on the same issue wherein the Tribunal took a view that if one audit is carried out then the
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the CENVAT credit, attributable to the trading activity (exempted services) on a mathematical formula which was followed by him which is the turnover of the trading activity of the total turnover multiplied by CENVAT credit availed on common input services, that every month they have been filing the returns with the authorities giving all the details of such reversals; that many audits have taken place in the factory premises and only in subsequent audit, had brought out this anomaly. 6. Relevant provisions of Rule 6 which is applicable for the period in question, needs to be reproduced which is as under: 6(1) The CENVAT credit shall not be allowed on such quantity of input or input service which is used in the manufacture of exempted goods or for provision of exempted services, except in the circumstances mentioned in sub-rule(2). Provided that the CENVAT credit on inputs shall not be denied to job worker referred to in rule 12AA of the Central Excise Rules, 2002, on the ground that
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lature was that a manufacturer or a service provider should not avail the entire CENVAT credit of the service tax paid on common input services and should avail proportionate credit attributable to the taxable output service for which the CENVAT credit Rules provides for maintaining separate accounts. In my view, appellant herein has followed this rule by taking the credit of only an amount which is attributable to the taxable services provided by him and not availing the CENVAT credit of the input services which are attributable to the trading activity. By availing only the CENVAT credit of the service tax paid attributable to the taxable services, in my view, appellant had complied with the provisions of Rule 6(2). I do find that the judgment of the Tribunal in the case of Trans Asian Shipping Services Pvt. Ltd. (supra) is directly on the point and in para No. 6.1 it is held as under. 6.1 As submitted by the learned counsel for the appellants, we find that the appellants have issued
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big entity spread over different countries and different places in India as there is no prescribed manner for maintenance of records under CENVAT Credit Rules, the records maintained by the appellants have to be accepted as records for the purpose of observing the conditions of CENVAT Credit Rules. Moreover, we find that the Chartered Accountant has given a categorical certificate that the appellants are maintaining separate records and have been making reversals of the balance amounts at the end of every month. In the case of Sify Technologies Limited, the issue is more specific and in para No. 8, 9 & 10, the Bench held as under: 8. Factually, the appellant has made its case very clear that it had received input services for its departments tabulated in Table-C. The input tax suffered on such services were allocated substantially to the departments in Table-A which provided taxable service and a minor part thereof to the department in Table-B. To this extent, the facts remained u
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ity of the credits allocated, due to its division of the department and maintenance of records, there cannot be any presumption by Revenue that the appellant's case falls under Rule 6 (3) of CCR 2004. It is also apparent from record that the order passed by the Authority below is unreasonable for the reason that as against credit of ₹ 6,66,423/- allocated to the department in Table- B which provided exempted service, disallowance of entire credit of Rs.1,11,07,075/- allocated to Departments in Table-A providing taxable service is contrary to the principal of proportionality. Therefore, entire disallowance does not call for any decision in favour of Revenue. 10. As an abundant caution, to make sure that the mathematical exercise is properly made by the appellant for allocation of credit rationally, the matter is remitted to the Adjudicating Authority to a limited extent to examine the allocation of the credit received by the appellant through departments in Table-C and allocab
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2018 (12) TMI 711 – APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – 2019 (20) G. S. T. L. 161 (App. A. A. R. – GST) – Levy of GST – electronic commerce operator or not – money paid by the customer directly to the driver of the cab for the service of the trip – Held that:- In the instant case the transportation of passenger service is provided by the taxi drivers by using a software application. Transportation of passengers is a taxable service liable to GST. The provision of this service by the taxi driver to the passenger is a ‘supply’ within the scope of supply given in Section 7 of the CGST Act since the service is provided for a consideration. The Appellant on the other hand has developed a digital platform which aggregates the taxi drivers on one common platform. The service of transportation of passengers is supplied by the taxi drivers using the digital application developed by the Appellant. The Appellant manages the digital application which facilitates the supply of the
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HI, AND SHRI. M.S. SRIKAR, MEMBER Represented by: Sri Chandrashekar Reddy, Managing Director PROCEEDINGS (Under Section 101 of the CGST Act, 2017 and the KGST Act, 2017) At the outset we would like to make it clear that the provisions of both CGST, Act 2017 and SGST, Act 2017 are in pari material and have the same provisions in like matter and differ from each other only on a few specific provisions, Therefore unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the KGST Act. The present appeal has been filed under section 100 of the Central Goods and Service Tax Act 2017 and Karnataka Goods and Service Tax Act 2017 (herein after referred to as CGST Act, 2017 and SGST Act, 2017) by M/s. OPTA cabs Private Limited, (herein after referred to as Appellant) against the advance Ruling No. KAR/ADRG 14/2018 Dated: 27th July 2018. = 2018 (8) TMI 933 – AUTHORITY FOR ADVANCE RULINGS, K
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cab for the service of the trip is liable to GST and whether the applicant is liable to pay GST on this amount. 4. It was decided by the Karnataka Advance Ruling Authority vide Ruling No. KAR/ADRG 14 OF 2018 July 27, 2018 = 2018 (8) TMI 933 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA that GST is leviable on the amounts billed by the appellant on behalf of the taxi operators for the services provided in the nature of transportation of passengers through it. 5. Aggrieved by the said Ruling of the Authority (herein after referred to as impugned order ), the appellant has filed an appeal under section 100 of the CGST Act, 2017 and KGST Act, 2017 on the following grounds. i. The Advance Ruling Authority has erred in holding that GST is leviable on the amounts billed by the appellant on behalf of the taxi operators for the services provided in the nature of transportation of passengers through it and is without consideration of the facts of the case and applicant s interpretation of law. ii.
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paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services: Provided that where an electronic commerce operator does not have a physical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory shall be liable to pay tax: Provided further that where an electronic commerce operator does not have a physical presence in the taxable territory and also he does not have a representative in the said territory, such electronic commerce operator shall appoint a person in the taxable territory for the purpose of paying tax and such person shall be liable to pay tax. vi. Authority for Advance Ruling verified the model of OPTA and held that as per Section 9(5) of the Central Goods and Services Tax Act, 2017 and Notificatio
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ibility of the deemed supplier. vii. OPTA model services of taxi are not supplied through it, due to following reasons: There is no privy of contract on account of payment between OPTA and customer. Customers pay directly to taxi drivers; and OPTA does not charge any trip commission from taxi drivers. Thereby there is no flow of consideration on account of any particular trip undertaken by the said taxi driver. OPTA charges monthly rentals to taxi driver for usage of IT platform. The responsibility of OPTA is limited to providing a stable and fully functional IT platform to taxi drivers, and provision of taxi driver services is the sole responsibility of taxi drivers for which no part of income accrues to OPTA. OPTA does not ensure any work to any taxi driver, neither does it offer any incentives for completing particular value of transactions in limited time. viii. In view of the above appellant pleaded that the impugned order be set aside. Personal Hearing 6. The appellant was called
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n their written submissions as well as at the time of personal hearing. Briefly stated the facts are that the Appellant is in the business of operating taxi aggregation service wherein the Appellant provides an IT platform whereby services of information technology is provided to both the customers and the taxi operators for the usage of service. The business model of the Appellant is that a potential customer would book the taxi by using the IT platform provided by the Appellant and the taxi operator would be intimated about the potential customer through the same IT platform. On completion of the journey, the Appellant sends an invoice to the customer using the IT platform and the charges for the taxi ride are paid by the customer directly to the taxi driver by way of cash, mobile wallets or online payment. The Appellant does not charge any commission from the taxi driver for the trip. For providing this digital platform, the Appellant collects a prepaid monthly subscription from the
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portation of passengers is a taxable service liable to GST. The provision of this service by the taxi driver to the passenger is a supply within the scope of supply given in Section 7 of the CGST Act since the service is provided for a consideration. The Appellant on the other hand has developed a digital platform which aggregates the taxi drivers on one common platform. The service of transportation of passengers is supplied by the taxi drivers using the digital application developed by the Appellant. The Appellant manages the digital application which facilitates the supply of the service of transportation of passengers. 11. Further, the appellant owns and operates the IT platform for the supply of service of transportation of passengers over the digital network. Using this digital network facility the Appellant provides the taxi aggregation service wherein they connect both the customer as well as the taxi operator. The customer would book the taxi by using the IT platform provided
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ion (5) of section 9 of the CGST Act and Notification No. 17/2017 – Central Tax (Rate) dated 28th Junes 2017 was issued whereby, the services by way of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle was notified as the category of services, the tax on intra-State supplies of which shall be paid by the electronic commerce operator. 14. Section 9(5) of the CGST Act shifts the liability to pay the tax from the actual supplier of the notified services to the e-commerce operator. The provisions of Section 9(5) Of the CGST Act do not in any way imply that the Supplier of the service is the e-commerce operator. Only the liability to pay the tax is now cast upon the e-commerce operator. The supply of the service of transportation of passengers continues to be the taxi operators However, since the service is supplied by them through the e-commerce platform, the liability to pay the tax is cast upon the e-commerce operator by virtue of Notification No 17/2017 CT(
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he nature of booking . Honouring such requests by the supplier of the goods or services, in return for a consideration, is the taxable event of supply . Therefore, booking for a service is also an integral part of the supply chain and hence there is no merit in the argument of the Appellant that the service has merely been booked on their platform and not supplied through it . We reiterate here that the supply of the service of transportation of passengers has been provided through the digital platform and by virtue of the provisions of Section 9(5) of the CGST Act, the e-commerce operator (the one who manages and operates the digital platform) is the person who is liable to pay the tax on all intra-state supplies as if he is the supplier. 15. The electronic commerce operator shall be liable to pay tax on the services provided by a motor cab or maxi cab or motor cycle or radio-taxi, by way of transportation of passengers, if such services are supplied through it and it shall be deemed
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2018 (12) TMI 790 – CESTAT CHENNAI – TMI – Refund of service tax paid erroneously – no service was provided – rejection on the ground of time limitation and unjust enrichment – period from April 2004 to August 2007 – Held that:- The refund claim has been filed on 14.3.2008. The Ministry of Company Affairs has issued the order of amalgamation on 30.4.2007. Further, in this order it is specifically stated that the amalgamation is to take effect from 1.4.2004 – In the present case, they have filed the refund claim within one year of the order passed by the Ministry of Company Affairs. In such a case, the refund claim which has been filed within one year after receiving the order or after coming to know about the amalgamation has to be considered to be made within the time prescribed under section 11B of the Act – thus, the refund claim is not hit by time bar.
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Unjust enrichment – Held that:- The Tribunal in the case of Usha International Ltd. [2016 (3) TMI 205 – CESTAT NEW DELHI] af
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ing the facility of storage to IBP Co. Ltd. and received consideration for the services provided under Storage and Warehousing services . They discharged service tax for such services. Later, the Ministry of Company Affairs accorded sanction to the scheme of amalgamation of M/s. IBP Co. Ltd. with the appellant s organization (M/s. IOC) vide order dated 30.4.2007. In view of such amalgamation, the appellant filed a refund claim on 14.3.2008 seeking refund of service tax paid on storage and warehousing services to the tune of ₹ 30,27,454/- for the period from April 2004 to August 2007 stating that pursuant to scheme of amalgamation which has taken effect from 1.4.2004, since both the entities have become a single entity, there is no service provided and therefore no liability to pay service tax. A show cause notice was issued proposing to reject the refund claim on the ground of time bar and also for the reason that the appellant had not produced any evidence to show that the incid
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refore filed the refund claim on 14.3.2008. The refund claim has been filed within one year as prescribed under section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. The authorities below have rejected the refund claim alleging that the service tax having been paid in 2004, the refund claim filed on 14.3.2008 is barred by limitation. He adverted to sub-clause (ec) of Section 11B(5) of Central Excise Act, 1944 and submitted that as per this provision, in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, appellate Tribunal or any court, the relevant date for reckoning the period of one year would be the date of such judgment, decree, order or direction. Ld. counsel has produced a copy of GSR No. 238 dated 2.2.1978 issued by the Ministry of Company Affairs wherein it has been directed that the Companies Act is to be modified / amended in Section 100,101, 102, 103, 391 and 394 by substitu
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efore no question of unjust enrichment would arise. To support his argument, he relied upon the decision of the Tribunal in the case of Usha International Ltd. Vs. CST – 2016 (43) STR 552 (Tri. Del.) 3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that the relevant date for computing the limitation as prescribed under section 11B would be the date of payment of duty / service tax. In this case, the service tax was paid from April 2004 to August 2007. The refund claim has been filed on 14.3.2008 which is beyond the period of one year. With regard to the argument of the ld. counsel referring to sub-clause (ec) in Section 11B(5), he submitted that the relevant date mentioned in the said provision is with regard to refund which is in consequence of judgment or decree passed by any court. The said provision does not refer to a direction given by Ministry of Company Affairs or of a High Court for amalgamation. He argued that the authorities
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d scheme. 2. Part II of the Scheme of Amalgamation between IBP and IOC for which sanction has been accorded vide the Order of Central Govt. stated above specifies that the Amalgamation is with effect from the Appointed Date i.e.. 1.4.2004. From the above, it can be seen that the appointed date for the amalgamation to take effect is 1.4.2004. The order of amalgamation passed by the Ministry of Company Affairs has to be considered as an order passed by the court itself as per the amendments brought forth in the Companies Act by substituting the words Central Government instead of Court . In any case, if an order of amalgamation is passed by any High Court, the appellant would be able to file the refund claim only after such order comes within their knowledge. In the present case, they have filed the refund claim within one year of the order passed by the Ministry of Company Affairs. In such a case, the refund claim which has been filed within one year after receiving the order or after c
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ugh the order of merger was passed High Court on 26.5.2008, the merger was to take effect from 1.4.2007. The Tribunal after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M/s. Sescot Sheet Metal Works Ltd. Vs. Commissioner of Customs – 2015 (327) ELT 545 (Mad.), the jurisdictional High Court held that the doctrine of unjust enrichment is inapplicable to the State (PSU). and therefore it cannot tantamount passing the burden to any other person. Following the said decision, we are of the considered view that the rejection of refund observing that it is hit by unjust enrichment is incorrect. 6. After appreciating the facts and also applying the position of law, as held in the decisions discussed above, we are of the considered opinion that the rejection of refund is unjustified. The impugned order is set aside and the appeal is allowed with consequential relief, i
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RAI PREXIM INDIA PRIVATE LIMITED Versus STATE OF KERALA REPRESENTED BY ITS SECRETARY (TAXES) , THIRUVANANTHAPURAM, THE COMMISSIONER OF STATE GST KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, ASSISTANT STATE TAX OFFICER SQUAD NO. VII, KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD, AMITY ROCK PRODUCTS PVT. LTD., THE UNION OF INDIA REPRESENTED BY THE SECRETARY (REVENUE) , NEW DELHI, GOODS AND SERVICE TAX COUNCIL THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NEW DELHI, GOODS AND SERVICE TAX NETWORK THROUGH ITS CHAIRMAN, EAST WING, NEW DELHI, AND CHIEF COMMISSIONER OF CENTRAL TAXES CENTRAL GST OFFICE, KERALAD – 2018 (12) TMI 1004 – KERALA HIGH COURT – TMI – Detention of goods – discrepancy in e-Way bill – the val
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wn in Ext.P4, the petitioner's goods and vehicle need be released only on furnishing bank guarantee.
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Petition disposed off. – WP(C).No.39022 of 2018 Dated:- 4-12-2018 – MR A. MUHAMED MUSTAQUE, J. For The Petitioner : ADVS. DR.K.P.PRADEEP SMT.ANJANA KANNATH SMT.NEENA ARIMBOOR SMT.RANI MUMTHAS SRI.SANAND RAMAKRISHNAN AND SRI. T. T. BIJU For The Respondents : SMT.THUSHARA JAMES, GOVERNMENT PLEADER JUDGMENT The petitioner's goods have been detained on account of discrepancy in e-Way bill. The first e-Way bill generated by the petitioner is produced as Ext.P4. Therein, the place of delivery was mentioned as 'Payhanamthitta, Kerala – 686547'. The value of the goods is shown as ₹ 3882200/-. Noting that the mention of place
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ut I am persuaded to adopt a different course for the simple reason that if the petitioner had paid the IGST in accordance with the value as shown in the original bill, goods cannot be detained and shall be released to the petitioner. Therefore, the following orders are issued. On verification, if it is found that the petitioner had paid the IGST in accordance with the value shown in Ext.P4, the vehicle and the goods shall be released to the petitioner on executing a simple bond. However, if it is found that the petitioner had not paid the IGST according to the value shown in Ext.P4, the petitioner's goods and vehicle need be released only on furnishing bank guarantee. This writ petition is disposed of as above. – Case laws – Decision
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2019 (1) TMI 322 – CESTAT NEW DELHI – TMI – Classification of services – appellant has been provided work contract for transportation of coal from mining area either to washery or to the railway siding by employing tippers and trucks for this purposes – Cargo Handling services or GTA Service? – Reverse Charge Mechanism – Held that:- It can be seen from a plain reading of 65A (2)(b) that the classification in the case of combined service is to be decided by analyzing the fact as to which service gives essential character to the service being performed – As can be seen from the contract that the essential character of the service for which contract has been entered by the service provider is that the service received are for transportation of coal for mining area to the railway siding and the activity of loading/ unloading mechanically or otherwise is in our view, is only incidental to the activity of transportation of the cargo in these cases – thus, the service provided by the appella
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r the various agreements entered by the appellant with M/s Western Coal Field Ltd. the appellant has been provided work contract for transportation of coal from mining area either to washery or to the railway siding by employing tippers and trucks for this purposes. The scope of work included loading of the coal from mining area to the washery or to the railway siding, transportation thereof and thereafter unloading of the coal either at washery or at the railway siding. The Department has entertained a view that loading and unloading of the coal for mining area and transport of the same within the mining area is more appropriately classifiable under the category of Cargo Handling Service , and therefore, same should have been classified by the appellant under the Cargo Handling Services rather than Goods Transport Agency Service. A Show Cause Notice dated 18/10/2013, came to be issued to the appellant demanding a service of tax of ₹ 35,19,423/- of Section 43(1) of Finance Act, 1
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y service on reverse charge basis. In this regard, it will be appropriate to have a look at the sample contracts which the appellant has entered with the service recipient, namely, M/s W.C.F. Ltd. LOA No. WCL/KAN/SO(M)/P 175/2012-985 dated 6.01.2013 Description of work Qty Rate/Unit Amount(Rs) JOB No.1) Transportation of coal form Bunker of Tandsi, mines to Nandan Washery by hiring of trippers including mech.unloading. Weighment of tripping trucks will be done at Tandsi & Nandan Washery Lead of 20-20 Kms. (Average) Daily rate of transportation: 800 tonnes. JOB No.2) (a) Loading of coal from bunker of Tandsi 1 & 2 and 3 & 4 under gravity by6 hiring of equipment such a trippers and transportation to ground stock and unloading. Lead 0 to 1.00 KM(Avg. 0.349 KMs.) As and when required, 40000 Tonnes 115.53/Te. 4621200.00 JOB No. 2(b) Loading of coal into tippers by hiring of equipment such as pay loader for transportation of coal to Nandan Washery. As and when required(Transporta
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cally signifies that the rates are pre-dominantly for transportation of cargo rather than for handing of cargo. However, before proceeding further the relevant section 65 A of Finance Act, 1994 need to be looked into in detail for classification of the service rendered by the appellant. The provisions of section 65A provides as follows:- SECTION 65A. Classification of taxable services – (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clause (105) of Section 65; (2) When for any reason, a taxable service, is prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows: (a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description; (b) composite service consisting of a combination of different services which cannot be classified in the manner specified in clause (a), sh
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above, we hold that the service provided by the appellants have rightly been classified in the Goods Transportation Agency service. 6. We also feel that this issue has already been examined by the Hon ble Supreme Court in their decision in the case of CCE & ST Raipur Vs Singh Transporters [(2017 (4) GSTL 3 (SC)] wherein the Hon ble Supreme Court has held that activity undertaken by the assessee of transporting of coal from the pithead of the mines to railway siding is more appropriately classifiable under service head of Transport of Goods by road services. The relevant extract of the above judgment is reproduced herein below: 6. Be that as it may, even if the relied upon judgment in the case of Arjuna Carriers (supra) is of no consequence to the present case, we are of the view that the activity undertaken by the respondent i.e. transportation of coal from the pit-heads to the railway sidings within the mining areas is more appropriately classifiable under Section 65(105)(zzp) of
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2019 (1) TMI 373 – CESTAT NEW DELHI – TMI – Short payment of service tax – erection, commissioning and installation services – works contract service – CENVAT Credit availed in excess – Held that:- This issue relates to examination of documents and thereafter to correlate as to whether there was any short payment of service tax during the impugned period w.e.f. July, 2012 to March, 2014 and as to whether the excess cenvat credit of ₹ 54,192/- has been availed by the appellant during the said period – there is no denial on part of the Department to the effect that the system of submitting return had a major change requiring the assessee to file the half yearly returns instead of the annual returns w.e.f. the year 2012. There is also no apparent denial of rebutting the failure in the software of the appellant as is mentioned by them.
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Perusal of various documents also makes it clear that there is no intentional act on the part of the appellant to evade the duty.
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Appeal
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. The said proposed recovery was confirmed vide the order of Additional Commissioner bearing No. 06 dated 28th February, 2018. Being aggrieved an appeal was preferred before Commissioner (Appeals), who vide the order under challenge bearing No.787 dated 27.04.2018 has upheld the Order in Original. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. Pradeep CA for the appellant and Ms. Tamanna Alam, ld. D.R. for the Department. 3. It is submitted on behalf of the appellant that most of the work of the appellant is being out-sourced including the accountancy work. It is submitted that during the impugned period, there was change in rate of duties and the procedure of submitting annual returns was changed with the mandate of submitting half yearly returns for which the software was not instantly prepared. It is submitted that the alleged short-coming occurred due to the error committed on account of the failure of the software but was not at all intentional on part
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the order. Appeal is accordingly, prayed to be dismissed. 5. After hearing both the parties, I observe that the Department noticed the short payment on the total taxable value as declared by the appellant and also noticed that the cenvat credit in excess has been availed by the appellant. To my opinion this issue relates to examination of documents and thereafter to correlate as to whether there was any short payment of service tax during the impugned period w.e.f. July, 2012 to March, 2014 and as to whether the excess cenvat credit of ₹ 54,192/- has been availed by the appellant during the said period. I further observe that there is no denial on part of the Department to the effect that the system of submitting return had a major change requiring the assessee to file the half yearly returns instead of the annual returns w.e.f. the year 2012. There is also no apparent denial of rebutting the failure in the software of the appellant as is mentioned by them. 6. The perusal of ord
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by the appellant that when this error came to their notice they suo moto assessed their accounts and whatever short payment of duty i.e. for an amount of ₹ 56,017/- was suo moto deposited way back in the year 2013. The authorities below are silent qua this deposit as well. The record also bear another document in the form of the certificate from the Chartered Accountant of the appellant to certify that service tax returns of the appellant were prepared by them on the software developed, prepared and designed by M/s. MDA Software Ltd. It is certified therein clearly that due to certain glitches, not noticed earlier, the input credit availed during the relevant period were not shown in the ST-3 returns as utilized towards discharging of output Service Tax liability for the impugned period, which resulted in the anomalous situation of large credit balances simultaneous on the un-availed Service Tax liability. The detail of Service Tax credit and the payments were also submitted with
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Customs – TRADE NOTICE: 05/2018 – Dated:- 4-12-2018 – OFFICE OF THE PRINCIPAL COMMISSIONER OF GST & CENTRAL EXCISE 6/7, ATD STREET, RACE COURSE ROAD, COIMBATORE – 641 018. [Issued in FiIe C. No. IV/16/02/2017-GST. Pol.] Date:04.12.2018 TRADE NOTICE: 05/2018 Sub: Reg. The trade & industry are hereby informed that the CGST Mettupalavam Range falling under the jurisdiction of Coonoor Division, functioning in a rented building at No.69B, Karamadai Road, Mettupalayam – 641301 [Location Code
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Goods and Services Tax – Started By: – Kaustubh Karandikar – Dated:- 3-12-2018 Last Replied Date:- 6-12-2018 – XYZ making late payment of monthly GST and therefore liable to pay Interest. E.g. if he is paying GST today and total GST payable is ₹ 100/- while today he has got balance of unutilized input tax credit of ₹ 80/-, therefore he will be paying ₹ 20/- in cash. As far as interest is concerned, he has to calculate on ₹ 100/- or only on ₹ 20/-? – Reply By CASush
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Goods and Services Tax – Classification of services – Supply of Services or not – Services to NMC by providing the Busses along with Driver, Fuel & Maintenance for use of General Public at Large – The
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Goods and Services Tax – Levy of GST – The applicant is not liable to pay GST on the supply of goods located outside India to customers within India without physically bringing the goods to India. – TMI Updates – Highlights
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Goods and Services Tax – Classification of goods – various poultry feed products – whether covered under the HSN CODES 2301, 2302, 2308, 2309 and effectively exempted or not – As such applicant produc
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Goods and Services Tax – Detention of goods with vehicle – goods detained on the ground Part B of the accompanied e-way bill has not completed – if the petitioner desires to have the interim release o
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Goods and Services Tax – Profiteering – Respondent did not pass on the benefit arising out of the increased ITC in the case of the subject transaction – the possibility of the Respondent having profit
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Goods and Services Tax – Started By: – Sharmila P – Dated:- 3-12-2018 Last Replied Date:- 4-12-2018 – I am a registered person under GST. My goods were lost by fire. With regard to this, I received an insurance claim from the insurer. Should i charge GST on the claim received by me from the insurer? what are input tax credit implications if i have availed ITC on the premium paid? – Reply By CASusheel Gupta – The Reply = 1) You need to reverse the ITC taken on goods destroyed. 2) No need to char
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2018 (12) TMI 263 – CESTAT NEW DELHI – TMI – Rejection of Voluntary Compliance Encouragement Scheme (VCES) – the tax dues declared by the appellant were for the subsequent period on the same issue for which a show Cause Notice dated 04.01.2011 for the period w.e.f. 01.01.2009 to 31.03.2010 had already been issued – time limitation – Held that:- Vide the impugned VCES-I, the appellant has declared his tax dues of ₹ 4,50,756 against the renting of immovable property services for the period w.e.f. 01.10.2008 to 31.03.2010. This perusal makes it clear that it is not merely that the category of service rendered is same but the allegation of not discharging the tax liability for rendering the said service and that the period for the alleged default is also same. Thus it becomes clear that a notice has already been issued to the appellant in respect of the same issue for the same period for which the appellant made the declaration under VCES-I – The said declaration is prohibited under
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Voluntary Compliance Encouragement Scheme dated 30.12.2013 had filed VCES-I declaring the tax dues of ₹ 4,50,756/- against renting of immovable property services for the period w.e.f. 01.10.2008 to 31.03.2010 vide challan No. 50518 dated 28.12.13. On examination of the said VCES-I, the Department observed that the tax dues declared by the appellant were for the subsequent period on the same issue for which a show Cause Notice dated 04.01.2011 for the period w.e.f. 01.01.2009 to 31.03.2010 had already been issued. Accordingly, a Show Cause Notice dated 25.02.2014 was issued proposing the rejection of the said VCES-I. The said proposal was confirmed vide Order-in-Original No. 1 dated 18.05.2015. It is thereafter that another Show Cause Notice No. 1216 dated 01.03.2016 was issued proposing the recovery of the service tax on ₹ 4,50,756/-. The said recovery has been confirmed vide the Order-in-Original dated 22.05.2018. Being aggrieved, the Appeal in hand have been filed. The s
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ory of service cannot be considered as the same issue which has been wrongly interpreted by the Department. It is further submitted that the Show Cause Notice is otherwise beyond the normal period of one year of the limitation and there was no intention of the appellant to evade the duty, extended period could not be invoked. Show Cause Notice is therefore barred by time and thus is liable to be set aside on this ground itself. Appeal is accordingly prayed to be allowed. 3. Mr. PR Gupta, Ld. DR while rebutting these arguments has submitted that there is no wrong interpretation on the part of the adjudicating authority below as alleged vide the previous Show Cause Notice of the year 2011. The liability of the appellant on account of renting of immovable property services for the same period for which the VCES has been filed was issued. The VCES has rightly been held to be covered under proviso 2 of Section 106. Appeal is prayed to be dismissed. 4. After hearing both the parties before p
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and submit a declaration. Under this Section, any person may declare his tax dues in respect of which no notice or an Order of determination under Sections as mentioned above has been issued or made before first day of March 2013. It further provides that where a notice or Order of determination has been issued to any person that person is debarred to avail the benefit of Scheme. Ld. Counsel for the appellant has challenged the Order alleging that the adjudicating authority below has given a wrong interpretation of the word any issue and same issue as used in Section 106. The term issue has nowhere being defined in the Finance Act 1944, or even in the Central Excise Act, 1994. Tribunal being a quasi-judicial authority can well rely upon the Civil/ Criminal Procedural Codes in the situations of ambiguity as the one in hand. Order 14 of Civil Procedure Code is about settlement of issues. Rule 1 sub-rule 1 thereof says that issues arise when a material proposition of fact or law is affir
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on under VCES-I. In view thereof I am of the firm opinion that the said declaration is prohibited under proviso 2 to Section 106(1) of VCES 2013. The Adjudicating Authority below are held to have committed no error while rejecting the said VCES Scheme. Order is held to have no infirmity. Appeal is accordingly dismissed. 5. The argument of the appellant for Show Cause Notice to be barred by time are also held to be not sustainable because the time limit for issuing notice under 101 of VCES will be applicable if and only if the assesse is entitled to file the VCES. Once it is apparent on record that rejection of VCES of appellant is correct due to a wrong declaration and non compliance of statutory provision. There is no need to look into the issue of limitation. As a result, I hold that there is no infirmity. Appeal is dismissed. [Pronounced in the open Court on 03.12.2018] – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxm
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