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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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PJ/Case Laws/2011-12/1368

Abatement for GTA service - availability to consignor/consignee

Case:  COMMISSIONER. OF C. EX., PATNA v/s H.T. MEDIA
 
Citation: 2011 (23) S.T.R. 451 (Pat.)
 
Issue:- Benefit of abatement - GTA service - Whether consignor or consignee are eligible to take benefit of abatement of 75 percent of service tax on the gross value of taxable service?
 
Brief Facts:- Respondent-assessee is engaged in the business of production and circulation of newspapers, and its printing activities are carried out in the township of Patna. The newspapers were carried to different destinations by means of road transport, the service providers the assessee being the consignor.
 
Assessee was liable to payment of service tax on freight charges in view of the provisions of the Finance Act, 1994. As per legal advice to them that they were entitled to abatement of 75 percent of service tax on the gross value of taxable service, Respondent submitted its return and deposited amount equal to 25 percent of the service tax.
 
The Director General of Service Tax, Mumbai, issued Circular dated 30-3-2005, clarifying the position that the benefit of exemption of abatement of the tax to the extent of 75 percent shall be available to the goods transport agency, the service provider, being the carrier, and not to consignor and consignee. In view of this clarificatory circular, respondent deposited a further sum of Rs. 1,08,153/- on 6-5-2005 and a sum of Rs. 3,442 on 12-5-2005 by way of interest on the delayed deposit.
 
This was followed by another clarificatory Circular No. B-1/6/05-TRU, dated 27-7-2005, which in substance provided that the benefit of abatement of tax to the extent of 75 percent shall be available to the consignors and consignees also. It was further clarified that a declaration by G.T.A. on the consignment note may suffice. In view of the clarificatory circular dated 27-7-2005, the respondent submitted filed claim for refund of amount of abatement on service tax i.e. 75% deposited by respondent later on. The Adjudicating Officer granted the refund.
 
The Commissioner of Central Excise suo motu invoked the powers under Section 84 of the Finance Act, 1994 and issued notices to concerned parties as to why the impugned order should not be set aside. The Commissioner set aside the impugned order and directed respondent to deposit the amount of abatement claimed as refund. In appeal, the Tribunal set aside the impugned order and restored the order of Adjudicating Authority.
 
Hence, Revenue is in appeal before the High Court.
 
Reasoning of Judgment:- The High Court the benefit of the circular dated 27-7-2005 would be available to the assessee. It was noted that it was evident that confusion was created by the redundant circular dated 30-3-2005, which was rectified by the circular dated 27-7-2005. And the bona fide intentions of the assessee are clearly established. It was noted that after issuance of the circular dated 27-7-2005, the assessee had submitted his application dated 20-10-2005 for refund. Coupled with this is the law-abiding sprit of the assessee that, in view of the circular dated 30-3- 2005 the assessee deposited a sum of Rs. 1,08,153/- on 6-5-2005, and further sum of Rs. 3,442/- on 12-5-2005.
 
In such a situation, the High Court accepted the submission of the assessee that it was no longer possible for them to obtain the declaration by the G.T.A. on the consignment notes because the same had gone out of the control and possession of the consignor or the G.T.A. long time ago. The assessee was, therefore, left with no other mode and manner of proof to claim the refund. Reliance was placed on the judgment of the Supreme Court in the case of CCE v/s Hari Chand Shri Gopal [2010 (260) ELT 3 SC].
 
In view of the position that the situation of confusion brought about by the Department, coupled with the bona fides of the assessee, it was extremely difficult for the assessee to obtain declaration by G.T.A. on the consignment note, not being a mandatory condition. They were of the view that the evidence produced by the assessee has rightly been accepted as valid by the Adjudicating Officer. It was observed that the Commissioner erred in setting aside the same on a hyper-technical view of the matter, and erroneously passed the order dated 28-5-2008. The High upheld the order of the Tribunal.
 
Decision:- Appeal dismissed.

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