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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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Update No. 92nd on SERVICE TAX ON CANCELLATION CHARGES RECEIVED ON ACCOUNT OF SC DIRECTION dt. 15.11.2021

Update No. 92nd on SERVICE TAX ON CANCELLATION CHARGES RECEIVED ON ACCOUNT OF SC DIRECTION dt. 15.11.2021
The levy of service tax on the cancellation charges/liquidated damages or compensation received has been subject matter of litigation since the time when declared services stated that the activity of tolerating is also a service liable to service tax. Since then, numerous decisions have been reported on the leviability of tax on such compensatory amount received. Recently, this issue was raised before the CESTAT, Kolkata in the case of M/s MNH SHAKTI LIMITED wherein the coal mines allotted to the appellant were cancelled and compensation was granted vide direction of the hon’ble Apex Court. The outcome of this decision is the subject matter of discussion of our present update. The appellant contended that the cancellation charges received by them was not by his choice but it was by virtue of order passed by Hon’ble Supreme Court. The receipt of compensation is a consequence of the operation of a statute and not the result of any agreement either as to render a service or to tolerate an act. Hence, no service tax is leviable on the compensation received by them. Reliance was also placed on various favourable judicial pronouncements on the issue as follows: - • South Eastern Coal Fields Ltd vs Commissioner of Central Excise Raipur decided by CESTAT Final order no. 51651/2020 dated 22 December 2020. • K.N. Food Industries Pvt. Ltd. Vs CCE Kanpur 202 (38) GSTL 60- (Tri-All) • Amit Metalinks Ltd. Vs CCGST, Bolpur 2019- TIOL—3177- CESTAT Kol. • Lemon Tree Hotels vs CCE, Indore 2020 (34) GSTL 220 (Tri-Del) The Hon’ble CESTAT held that the appellant had no choice of tolerating cancellation or not. The cancellation was in pursuance of the order of the Supreme Court and not as a result of a contract to tolerate cancellation. There was no consideration for tolerating the cancellation, only a compensation provided for statutorily for the investment made in the mines by the appellant. These, cannot be called taxable services of tolerating a situation by any stretch of imagination. No service tax can be levied on the amounts received by the appellant as compensation. The above decision deals with compensation received by virtue of Statue or direction of Supreme Court. However, the ratio of the decision should be made applicable for compensations received on account of breach of contractual obligations also where there is no specific intention to provide the service of “tolerate an act”. We have extensively covered the dispute as regards leviability of tax on liquidated damages in our earlier updates and have concluded that tax should be levied only when there is express intention to perform such services, say for example in case of noncompete agreements. The assessees should not be fastened with tax demands for compensations received during normal course of trade due to breach of conditions of the contract. The dispute is continued In GST era as well as serial no. 5(e) of Schedule II of the CGST Act, 2017, is identically worded as Section 66E(e) of the Finance Act. Interestingly, several advance rulings under the GST regime have ruled that payment of liquidated damages is liable to tax, without taking into consideration that damages are essentially compensatory in nature and are payable in case of breach of a contract to monetarily place the aggrieved party in the position it would be in if the breach was not committed. The reasoning of the judgment discussed in update will have persuasive value in the GST regime too as the clauses for damages or penalty for deficiency in services is a common feature.
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