Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Publish Date: 20 Jan, 2011
Print   |    |  Comment

Johnny and Service Tax Refund (Series-II) Part 7: Refund on Other services

Johnny and Service Tax Refund(Series-II)

Part 7: - “Refund on Other services”

                         

                       By: -                          

CA. Pradeep Jain

Mayank Palgauta

Visit us at: www.capradeepjain.com

In continuation of previous articles, elaborating the difficulties in getting the refund claim under different conditions, we in this article are unveiling the problems existing in the Service tax refund mechanism under Conditions relating to Courier Service, Insurance Service and GTA by Road Service under [Section 65 (105) (f)], [Section 65 (105) (d)] and [Section 65 (105) (zzp)] respectively. This complete scenario is being elaborated with the means of humorous poems and conversation between Johnny (an assessee) and his father but the main motive is to bring out the problems faced by exporters. 

Johnny and Jill went up the hill, to get the refund order
 

Johnny came back with a lack
 

And Jill came hopeless after.

Presently, assesses are claiming refund orders under above mentioned Services and are experiencing vast intricacies in getting such refund orders due to attach conditions thereon. The refunds claimed by the assessees as against their exports are their Statutory Rights but are being refused by the departmental authorities on various arguments which are of no significance and worth less. Such reasons on which the department is refusing the refund claims on the said services are being written out hereunder as follows: -

Johnny-Johnny!  Yes papa!
Got the refund?
No Papa,
Telling lies?
No Papa,
What’s the reason?
This papa: -
 
Johnny says:  I went to the department to get the refund for the Courier service availed by me in relation to export of goods, but department said: -
Johnny-Johnny go away,
Come again another day.
Your refund order has following Flay: -

The documents submitted by the exporter for the refund claim for Courier services falling under Section 65 (105) (f) of the Finance Act, 1994 are not complying with the conditions prescribed in Notification no. 17/2009-ST dt. 07/07/2009.

Johnny’s View: 

We submit that the conditions laid down in the notification are reiterated hereunder:-

 

10. (f) Service provided by a courier agency to an exporter in relation to transportation of time sensitive documents, goods or articles relating to export, to a destination outside India. (i) The receipt issued by the courier agency shall specify the importer-exporter code (IEC) number of the exporter, export invoice number, nature of courier, destination of the courier including name and address of the recipient of the courier; and
(ii) Exporter produces documents relating to the use of courier service to export goods.
 
 

The analysis of these conditions makes it clear that these details are to be mentioned on the invoice of the courier agency. We submit that preparation of any invoice of any service is not in the hands of the service recipient. It is the duty of the service provider, courier agency. But normally courier agencies do not take pain to mention these details. They focus mainly on the name and address of the service recipient and the destination of the courier. Further service tax is charged on the invoice. All these details, though not covers everything mentioned in the above column no. 4, are sufficient to prove that the services have been availed by us and the service tax is paid on the invoice. As such, the main conditions for getting refund of service tax are satisfied.

The refund cannot be denied on the ground that the service provider has not raised the proper invoice. This is just a procedural lapse and procedural lapse cannot be the basis for denying the refund claim. We rely on the decisions in the case of COMMISSIONER OF C. EX., MUMBAI Versus MANISH ENGINEERING CORPORATION[2003 (162) E.L.T. 670 (Tri. - Mumbai)] and Bajaj Tempo Ltd. versus Commissioner of C. Ex., and Customs, Pune [1999 (106) ELT 145 (Tribunal)] as already discussed here above.

We further submit that we have fulfilled the substantial condition for the refund i.e. export of goods hence the refund should not be denied. Further we have already certified on the invoice that the specified services have been fully utilized in export of goods. The documents are also authorized. The certification done by the assessee clearly said that the service mentioned in the bill/ invoice / challan issued in their name pertaining to specified service has been received by them and that the said taxable service has been fully utilized in export of goods also the service tax has been paid on the same. In light of the above discussions the refund should be granted to us.

Johnny says:  I went to the department next day again with the above submissions and further supporting but department said: -

Johnny-Johnny go away,
 

Come again another day.
 

Your refund order has following more flay: -

In respect of refund of service tax paid insurance charges, it is alleged that the document issued by the insurer submitted is a receipt towards open policies hence the same is not a document issued by the insurer for payment of insurance premium specific to export grade covered under the specific Shipping Bill. The copy of document submitted neither mention any amount paid or payable for services rendered nor the document is specific to export goods nor the name of the exporter is found mentioned anywhere in the document. The document pertains to an open policy which cannot be said to be specific to export goods.

Johnny’s View:

The conditions for the insurance are specified in the condition 4 under column 4 is reproduced below-

Exporter shall submit document issued by the insurer, including re-insurer, for payment of insurance premium and the document shall be specific to export goods and shall be in the name of the exporter

We have taken a general insurance policy for the export of goods. The policy has a prescribed period, i.e., as and when we will export the goods during this period, insurance cover will be subject to this policy.

The allegation that the refund of service tax paid on premium of running policy is not allowed is not sustainable on the grounds that it is not feasible neither for the insurance co. nor for the exporters to obtain separate policy per consignment. It is a practice throughout India and all the exporters are following the same. A blanket policy is taken for a large amount. It is specifically for the export of the goods and consignment wise amount is debited in that policy. When the policy comes to an end, it is renewed by the exporter. This is a general practice throughout the country.

However, there is no doubt regarding availment of these services and service provider being a public sector undertaking is duly depositing the service tax. The cover note indicates the details of the policy taken like policy amount and type of policy and nature of goods covered, etc., premium amount and service tax due thereon. Since the insurance policy is taken in respect of export goods and the premium paid has suffered the service tax incidence of which is born by us, the refund should be allowed to us.

Johnny says:  I went to the department next day again with the further submissions but department rejected saying: -

Johnny-Johnny go away,

You won’t get refund anyway.
 

It has following more flay: -

In respect of refund of service tax on goods transported by road, Refund in respect of taxable services wherein service tax has been paid or payable to the service provider and where the person claiming refund is a person liable to pay service tax under section 68 of the Finance Act.Hence refund is not admissible in view of Proviso (c) to paragraph 1 and clause (a) of Paragraph 2 of Notification No. 17/2009-ST.

Johnny’s view: -

The relevant clause is produced below-

2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.

This clause says that the service tax has to be paid by the person according to the rate specified in Section 66. This clause will apply on the person who is liable to pay service tax under this Act. This sub-section covers those cases where the service tax is paid by the persons other than service providers. The recipients of services rendered by the goods transport agency are covered by this sub-section.

Further the clause no. (c) of the para 1 of the notification says -

(c) the exporter claiming the exemption has actually paid the service tax on the specified service to its provider; 

In the cases other than where the recipient of the service is made liable to pay the service tax, the person paying the service tax to the government exchequer and the person bearing the incidence of that service tax/exporter are two different persons. Out of the services specified in this notification, all the services other than GTA services fall this category where the service tax is paid to the government exchequer by the service provider and the person bearing the incidence of this service tax (i.e. exporter) are two different people. Thus, this condition has been added in order to ensure that the person claiming the refund of service tax has borne the incidence of the same in order to avoid the unjust enrichment. In case of the GTA services, the person paying the service tax and the person who has borne the incidence of this service tax are the same – i.e. exporter. As such, there is no unjust enrichment and this clause is not applicable on us.
Further the clause (a) of the Paragraph 2 of these says-

  1. the person liable to pay service tax under section 68of the said Act on the specified service provided to the exporter and used for export of the said goods shall not be eligible to claim exemption for the specified service;

Further the above clause says that the service provider (who is liable to pay service tax as per provisions of section 68) providing the specified services to the exporter, will not be able to claim this exemption. The analysis of this clause makes it clear that this clause is applicable where the service provider is liable to pay the service tax [i.e. under section 68(1)], then the service provider will not be able to claim the refund. For eg. if the CHA has provided the services to the exporter, he is the person liable to pay service tax under section 68(1); then he will not be able to claim the refund of the service tax in terms of this provisions. Only exporter can claim the service tax refund. The analysis of this clause (a) makes it clear that this clause is not applicable in the cases where the person is liable to pay the service tax under section 68(2). In other words, where the service recipient is liable to pay the service tax or where the person liable to pay the service tax and the exporter are the same, this clause is not applicable. Thus, this clause is not applicable on us as we are the person liable to pay the service tax and the exporter too.

At end, reaching at the same point from originally started, we submit that the intention of the government is to promote the exports and provide maximum benefits to the exporters only. But such show cause notices / orders have been issued to deprive the exporter from the refund benefits which is not tenable under law.

Fruitless again & again;

Johnny now in grief and pain!

Refund order now a dream;

His efforts have downstream!

 

In this article our sole endeavor is to picturise the problems faced by assessees in getting the refund order as against the services specified above. To represent the whole situation and to make it somewhat rhythmatic we have graced the article with humorous poems.

This is the last article of the prolonged series of articles restraining various issues/ conditions involved in the refund claim mechanism under services tax law. We hope the series of articles depicted the tangible situations faced by exporters under different services.

We will be back with new articles or their series, on various other current issues prevailing in the Indirect Tax regime. Your valuable comments and suggestions are welcomed on pradeep@capradeepjain.com.

***********

 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com