The Pr. Commissioner of GST, Delhi -South Commissionerate Versus McDONALDS India Pvt. Ltd.
Service Tax
2017 (10) TMI 514 – DELHI HIGH COURT – 2018 (8) G. S. T. L. 25 (Del.)
DELHI HIGH COURT – HC
Dated:- 9-10-2017
SERTA 7\/2017 & C.M. No. 36005\/2017 (stay)
Service Tax
S. MURALIDHAR & PRATHIBA M. SINGH JJ.
\nAppellant Through: Mr. Harpreet Singh, Sr. Standing Counsel with Ms. Namrata Bharti, Advocate.
\nRespondent Through: Mr. Nikhil Nayyar, Advocate with Mr. N. Sai Vinod, Ms. Smriti Shah, Advocates.
\nO R D E R
\nC.M. No. 36007\/2017 (Exemptions)
\n1. Allowed, subject to all just exceptions.
\nC.M. No. 36006\/2017 (delay of 41 days in filing)
\n2. For the reasons explained in the application, the delay in filing is condoned. The application is allowed.
\nSERTA No. 7\/2017 & CM No. 36005\/2017 (stay)
\n3. This is an appeal by the Service Tax Department through the Principal Commissioner of GST under Section 35 of the Central Excise Act, 1944 (“CE Act”) read with Section 83 of <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n s books of accounts for the aforementioned FYs, the Assessee showed Rs. 3,28,00,378\/- as receivable. However, since the payment had not yet been received, it did not pay the corresponding service tax. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n notice (SCN) dated 24th October 2011 was issued to the Assessee raising a service tax demand of Rs. 39,36,044\/- along with interest and penalty. An adjudication order was passed on 28th March 2012 confirming the above demand of tax, interest and penalty against which the Assessee went in appeal before the Commissioner (Appeals) who, by the order dated 25th July 2013, dismissed the appeal. The Assessee then went in appeal before the CESTAT which, by the impugned order, has allowed the appeal and set aside the adjudication orders as well as the order in appeal. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n es it mean that it is conclusive in nature? In law, it is not. It is not a case where by reason of a judgment of a court, the law was found to be vague or ambiguous. There is also nothing to show that it was found to be vague or ambiguous by the executive. In fact, the Board circular shows that invocation of clause (ii) had never been in contemplation of the taxing authorities.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" The Pr. Commissioner of GST, Delhi -South Commissionerate Versus McDONALDS India Pvt. Ltd.Service Tax2017 (10) TMI 514 – DELHI HIGH COURT – 2018 (8) G. S. T. L. 25 (Del.)DELHI HIGH COURT – HCDated:- 9-10-2017SERTA 7\/2017 & C.M. No. 36005\/2017 (stay) Service TaxS. MURALIDHAR & PRATHIBA M. SINGH JJ. Appellant Through: Mr. Harpreet Singh, Sr. … Continue reading “The Pr. Commissioner of GST, Delhi -South Commissionerate Versus McDONALDS India Pvt. Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-8189","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/8189","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8189"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/8189\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8189"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8189"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8189"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n5. By the FA 2008 effective from 10th May 2008, an amendment was made in Explanation (c) to Section 67 of the FA 1994 which defined the expression “gross amount charged” as under:-
\n“(c) “gross amount charged” includes payment by cheque, credit card, deduction from account and any form of payment by issue of credit notes or debit notes and book adjustment, and any amount credited or debited as the case may be, to any account, whether called “Suspense account” or by any other name, in the books of accounts of a person liable to pay service tax, where the transaction of taxable service is with any associated enterprise.”
\n6. Correspondingly, an explanation was added to sub-rule (1) under Rule 6 of the Service Tax Rules, 1994 (“ST Rules”) by Notification No. 19\/2008\/ST dated 10th May 2008 <\/p>\n
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\n9. The CESTAT has, in the impugned order, held that the amendment was made to Section 67 of the FA 1994 as well as Rule 6 of the ST Rules only with effect from 10th May 2008 and not retrospectively. It was noted that the explanation to Rule 6 being prejudicial to the interest of the AE would, therefore, not apply retrospectively.
\n10. The learned counsel for the Appellant-Department sought to urge that the explanation is merely a<\/p>\n
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\nxxx xxx xxx
\n52. As stated hereinbefore, for the aforementioned purpose, the expressions like “for the removal of doubts” are not conclusive. The said expressions ap<\/p>\n
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