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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.  

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Publish Date: 05 Jun, 2007
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NEW LEVY ON GOODS TRANSPORT OPERATOR: ANOMALIES

NEW LEVY ON GOODS TRANSPORT OPERATOR: ANOMALIES
 
 
            It is truly said, “History repeats itself.” But so early nobody knows. The Government has once again introduced the levy of service tax of Goods Transport Operator on the service taker rather on the transporter. It is once again going on to give rise to protests from the trade and industry as well as undue litigation. The earlier levy in 1997 has seen such scenario. The Apex Court struck down the earlier levy in case of Laghu Udyog Bharti v. Union of India [1999 (84) ECR 53 (SC)]. Later on the Government has introduced a plethora of retrospective amendment to regularize this levy. But the litigation on the above is still continued.
 
            However, we are limited to legal aspects and anomalies on this new levy. These points are discussed below:-
 
            1.         Person covered under the new levy:- The lists of the person who are liable to pay the service tax are covered under the Notification No. 35/2004-ST. These gives the exhaustive list of the assessee. However the list clause (g) reads as follows:-
 
            “(g)   any body corporate established, or a partnership firm registered, by or under any law, any person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage.”
 
            The levy on any body corporate or partnership is clear but the words appearing after that are ambiguous. It covers any person or his agent who pays or liable to pay freight. It virtually covers all the persons in its ambit. This seems not to be the real intention of the Government otherwise there was no need to give such exhaustive list. It should amend to clear the confusion.
 
            2.         Credit of Input or Capital Goods:- There is a provisions in the Notification No. 32/2004-ST that no credit on inputs or capital goods will be allowed if the assessee intends to enjoy the benefit of abatement. Normally, the transporter to whom the freight is paid owns the vehicle. If the assessee owns these then there is no need to pay the freight. Also, there are hardly any inputs which are used for providing such services. Thus, this clause should be deleted otherwise the Department will insist that the assessee should not take any credit on any inputs or capital goods. This is impossible in case of the manufacturer who is also paying Excise Duty.
 
            3.         Cenvat Credit on Service Tax:- The newly introduced Cenvat Credit Rules, 2004 also provides the credit of the input service. The freight is definitely an input service for the manufacturer. Thus, he will thus deposit the tax and take the credit of the same. This is not intended at all. An Exemption Notification like 67/95-CE dated 16.03.1995 should be introduced. It will avoid this revenue neutral exercise wherein the manufacturer will pay service tax and simultaneously take the credit.
 
            4.         Cenvat Credit on Service Tax:- There is a provision under Rule 4(7) of Cenvat Credit Rules, 2004 that the credit will be allowed when the payment is made of the value of input service and the service tax paid or payable to the input service provider. But in this case the output service provider himself deposit the service tax. Thus, there should not be condition of payment of the value of input service. The payment of service tax should be condition precedent. The Cenvat Credit Rules should be amended accordingly to enable the output service provider to take the credit as soon as he deposits the tax.
 
            5.         SSI Exemption:- It is the demand of the service tax assessee to give an exemption limit to the assessee as available under the Central Excise. It seems that the Government has forwarded a step towards the same. A small scale limit is given for the assessee of Goods Transport Operator. But it is very small limit of Rs. 1500/- only. Secondly, this goods carriage wise. Every assessee has to keep on counting it for each goods carriage. But one goods carriage has availed the Exemption limit with one assessee then how the other assessee will know about it. Whether it is available each assessee wise? Furthermore, it is not clear that it is annually or monthly limit. This point needs urgent clarification from the department.
 
            These amendments are urgently needed for smooth implementation of the levy. But it is bound to face protest from trade and industry.
 
  
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