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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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PJ/Case Law/2013-14/1975

1.Whether assessee who received manpower recruitment or supply service from overseas companies are liable to pay service tax under reverse charge mechanism or not? 2.Whether assessee who received commission from overseas companies is liable to pay servic

Case:- BMW INDIA PVT LTD Vs COMMISSIONER OF SERVICE TAX, DELHI
 
Citation:-2013-TIOL-1407-CESTAT-DEL
 

Brief Facts:-  The Adjudication order assessed service tax liability of Rs. 6.5 crores under three heads:
 
a)    Rs.4.39 crores (approx.) under reverse charge mechanism for having received 'manpower recruitment or supply agency' service from BMW U.K. and Germany by way of deputation of technical and other personnel from the overseas companies for a tenured employment with the petitioner/appellant; the amounts remitted by the petitioner either to the deputed personnel directly or amounts representing salaries of such deputed personnel remitted to the overseas companies, as the case may be, having been assumed to be the consideration for the taxable service provided by the overseas companies.
 
b)    Rs.16,65,550/- and Rs.1,74,76,381 /- are assessed towards commission/amount received from overseas companies for having provided Business Auxiliary Services to the overseas entities; and
 
c)    Rs.28,24,406/- is alleged in the appeal before us as a result of erroneous accounting of the liability on education cess .
 
Reasoning of Judgment:- The Tribunal heard both parties and consider that in so far the Business Auxiliary Service is concerned [sub para (b) above] the petitioner claims immunity under the provisions of Export of Service Rules, 2005 relying on the judgment of the Larger Bench in Paul Merchants Ltd. vs. C.C.E., Chandigarh ( (2012-TIOL-1877-CESTA T-DEL). In view of the decision in Paul Merchants Ltd., prima facie the issue is in favour of the petitioner/ assessee.
 
The Tribunal also finds that the adjudication order also appears to be error in computation of education cess.
 
The Tribunal further finds that under the taxable service 'manpower recruitment or supply agency' the petitioner relies on interim order passed in appeals preferred by M/s Volkaswagen India (Pvt.) Ltd.; ITC Ltd. vs. C.S.T., New Delhi; UTI Asset Management Co. Ltd. vs. C.S.T., Mumbai I; and a final order in Paramount Communication Ltd. vs. C.C.E., Jaipur - (2013-TIOL-774-CESTA T-MUM); (2012-TIOL-855-CESTA T-DEL); (2012-TIOL-1822-CESTA T-MUM) and (2013- TIOL-37-CESTA T-DEL) respectively. In view of consistent orders passed granting waiver of pre-deposit in aforesaid orders and the final order in Paramount Communication Ltd., we see a strong prima facie case in favour of the petitioner in respect of the adjudicated tax liability under 'manpower recruitment or supply agency' service as well. 
 
The Tribunal decides on the aforesaid analysis and grant waiver of pre-deposit in full and stay all further proceedings pursuant to the impugned adjudication order, pending disposal of the appeal. In view of the above order passed in the stay application, the miscellaneous application has become infractuous and is accordingly dismissed.
 
Decision:-  Pre-deposit waived and stay granted.
 
Comments:-  it is clear from this case is that if a assessee received commission from overseas companies for providing Business Auxiliary Services to the overseas entities. Assessee can claims immunity under the provisions of Export of Service Rules, 2005 relying on the judgment of the Larger Bench in Paul Merchants Ltd. vs. C.C.E., Chandigarh ( (2012-TIOL-1877-CESTA T-DEL).  

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