Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1076

Availability of SSI Exemption

Case: Cancio E. P. Mascarenhas v/s Commissioner of C. Ex. Goa
 
Citation: 2011(21) S.T.R 17 (Tri. Mumbai)
 
Issue:- Whether SSI exemption can be claimed by the assessee who has not opted for claiming exemption as per Condition No. 2(1) of Notification No. 6/2005-ST?
 
Brief Facts:- Appellant received a commission of Rs. 20 lakhs as per the agreement with his client, but did not receive any service tax. Thereafter, the appellant applied for registration to pay service tax on the commission received by him. Registration was granted and appellant paid the service tax. While paying service tax, the appellant did not deduct the basis exemption of Rs. 8 lakhs was not deducted. Hence the appellant filed a refund claim for excess service tax paid on the service tax excess paid on Rs. 8 lakhs under Section 11-B of the Central Excise Act, 1944.
 
The contention of the appellant was that Notification No. 6/2005-ST, dated 1.3.2005 provides an option to the service provider to avail exemption from tax leviable on the taxable services of aggregate value not exceeding the prescribed limit (Rs. 8 lakhs as per Notification No. 4/2007-ST dated 01.03.2007) in any financial year subject to fulfillment of the condition specified in the said Notification. The refund claim was rejected, holding that the appellant has not exercised to opt for the exemption under the above Notification and hence not entitled for the refund claim.
 
Aggrieved by the same, appellant are before the Tribunal.
 
Respondent’s Contentions:- Revenue submitted that the appellant has not opted for the exemption under the said Notification and paid the tax accordingly and as per condition 2(1) of the said notification, the appellant is not entitled for the exemption and hence the refund claim has been rightly rejected. Revenue relied upon L.G. Marwadi v/s CCE, Pune-III [2010 (19) STR 279 (Tri-Mumbai)].
 
Reasoning of Judgment:- The Tribunal noted that the appellant had received commission on 12.08.2007 and they got registered with a Service Tax department under the category of real estate on 20.11.2007. It is also a fact that the appellant did not recover any service tax from his client. And also paid the service tax on the said commission and not claimed the basic exemption as per Notification No. 6/2005-ST., as amended.
 
The Tribunal went through the Notification and as per the said Notification, the assessee is to take the decision in advance whether the assessee intends to avail the threshold exemption in advance and the condition laid down in the Notification is that nowhere during the financial year opt for exemption if once they has not opted for exemption in advance. In this case, the appellant has got registered with the department and paid the service tax on whole of the commission received by him. The assessee is new assessee and there is no question of opting for exemption in advance. Appellant has paid the service tax without knowing the fact that the appellant is entitled to claim the threshold exemption as per the above said Notification. Accordingly, condition 2(1) is not applicable to the case of the appellant and the case law relied upon by the Revenue is not relevant to the facts of this case as in the case of L.G. Marvwadi, the appellant had paid service tax for the first half of the year and in second half surrendered the registration certificate and sought the exemption as per the Notification for the earlier period, which are not the facts in this case.
 
In this case the appellant had done only one transaction of receiving commission and it is also a fact that no service tax has been received by the appellant. Although the appellant has not received the service tax, but being an honest tax payer, opted to pay service tax on the commission received by him and applied for service tax registration and, therefore, paid the service tax. So, there is no question to opt to go out of exemption limit as per the said notification. Hence condition 2(1) of the said notification is not applicable to the facts and circumstances of this case. Accordingly, impugned order is set aside and the refund claim is allowed.
 
Decision:- Appeal allowed.
 

************

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