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

Print   |    |  Comment

PJ/Case Laws/2012-13/1344

Denial of service tax refund claims under Notification 41/2007 on account of procedural lapses.


Case:- DURHAN SPINTEX & HOLDING PVT.LTD VERSUS  COMMISSIONER OF S.TAX, AHEMDABAD
 
Citation: - 2012 (28) S.T.R. 366 (Tri-Ahmd)
 
Brief facts: - The Brief fact of the case is that the refund of service tax claimed on port services has been rejected on the ground that the appellant have not got invoice from the service provider but from the CHA and also for the reason that the service provider was neither the port nor authorised by the port.
 
The Commissioner (Appeals) has taken a view that in respect of service providers namely M/s. Freight Line India Pvt. Ltd., M/s. Maersk India Pvt. Ltd., M/s. Ace India Pvt. Ltd. and M/s. Anchor Lines and Shipping Lines/Shipping Line Agents under service provided by them are business auxiliary service which is not specified for refund.
 
As regards GTA service, the refund claim has been rejected on the ground that for transport of goods from ICD to port of export, details like shipping bill number, export invoice number, description of export goods etc. are not available.
 
As regards technical testing and analysis service, claim has been rejected on the ground that the invoice is in the name of M/s. Ashima Ltd. who has made the payment. In this case also if the appellants are able to show the evidence of payment of service tax by them and the relationship of the service with the goods exported and also evidence to show that M/s. Ashima Ltd. have not taken the credit of service tax in their books of account, refund may have to sanctioned to the appellants. In this case it has been held that the appellants not able to show any document that service tax was paid by them.
 
Even though appeals have been filed against different orders, all the appeals were heard together since the issue relates to eligibility of the appellants for refund of service tax paid on various services under Notification No. 41/2007. While some of the services are common to all the orders, some of them are not. Since the notification under which refund is claimed and most of the services are common to all the appeals, a common order is being passed.
 
Appellant Contention:- The Appellants submit that the CHA has acted as a pure agent and has collected the amount from them and paid to the service provider and appellants have provided all the documents and proof of payment of service tax and therefore they are eligible. The very same issue had come up before the Tribunal earlier and this Tribunal has taken the view that in respect of port service, THC charges, REPO/BL charges etc. Whether service provider was authorised or not, if the service tax has been paid towards port service, while granting refund, the refund sanctioning authority cannot sit in judgment to say that the service received was not port service. Once the services are covered under the statutory definition of port service and service tax has been paid, refund is admissible. In view of the above conclusions reached by the Tribunal in the case of Ramdev Food Products Pvt. Ltd. - 2010 (19) S.T.R. 833 (Tn. - Ahmd.) and in the case of Indoworth India Ltd. - 2012 (25) S.T.R. 78 (Tn. - Mumbai), the appellant is eligible for the refund to service tax paid on port services.
 
As regard GTA  appellants relied upon the decision of the Tribunal in case ofDishman Pharma and Chemicals Ltd. - 2011 (21) S.T.R. 246 (Tn. – Ahmd) . In this decision the Tribunal took a view that refund claim cannot rejected on technical grounds like invoices issued by transport agencies do contain all the details. If the appellant is able to correlate the export goods 1% the documents supporting service tax payment, such a refund should be granted. Therefore the issue relating to service tax on GTA service will have to be considered in the light of the decision cited above and considered afresh.  
 
As regard Technical Testing and analysis, the appellant relied upon the decision in the case of F. Ahmed & Co. - 1993 (67) E.L.T. 759 (G.O.I.) to submit that merchant exporter is entitled to rebate and for this purpose a no objection certificate from the manufacturer would be adequate. It is their contention that the decision is applicable to the present case.

Reasoning of judgement :-The Tribunal held that what is required to be seen whether service tax was paid for the service rendered under the admissible services category or not. If the service tax has been paid under business auxiliary service, appellant may not be eligible. Before sanctioning refund in respect of services provided, the category of service and for which service tax has been paid may be verified from the invoice or any other document that may be produced by the appellants before a decision is taken.
 
 The Tribunal Further held that if the appellant is able to correlate the export goods 1% the documents supporting service tax payment, such a refund should be granted. Therefore the issue relating to service tax on GTA service will have to be considered in the light of the decision cited above and considered afresh. If appellant cite any other decision of the judicial forum, such decision also should be considered.
 
 As regards Technical Testing and analysis Service Tribunal is not convinced with the decision cited above. Appellants have to show non availment of Cenvat credit by the manufacturer and the fact of payment of service tax by them and fulfillments of other conditions to be eligible for refund of service tax paid on technical and analysis service.
 
Further GTA service received for transportation of empty container from the premises of exporter is also admissible in view of the fact that the notification provides for refund of service tax paid in respect of services used in relation to export and in this case it cannot be denied that the transport of empty container to the exporter's premises was necessary and was received in relation to exported goods.
 
One of the claims has been rejected in Order-in-Appeal No. 343/2005 dated 30-12-2009 on the ground that the same is time barred. On this issue there are subsequent decisions of the Tribunal directly applicable to Notification 41/2007 and subsequent amendment notifications. If the appellants cite the cases, the applicability of these decisions may be considered and the refund claim rejected on the ground of time bar also may be considered in the light of decisions, if any that may be cited by the appellants.
 
In the result the impugned orders are set aside and the matter is remanded to the original adjudicating authority for fresh consideration of all the refund claims in the light of observations made in this order.
 
Decision: -Appeal disposed off
 
Comment:- This is yet another case that depicts the difficulty faced by exporters in claiming refund of service tax in respect of goods exported. Refund claims are denied for mere procedural lapses even when it is possible to correlate the service tax paid in respect of exported goods.

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