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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/2011-12/1328

GTA Service - Refund of ST deposited by Service Recipient in Transporter's name

Case: COMMISSIONER OF C. EX., ALLAHABAD versus AZAM RUBBER PRODUCTS LTD
 
Citation: 2011 (23) S.T.R. 263 (Tri. - Del.)
 
Issue:- GTA – Service recipient deposited ST in the name of transporter. Later on deposited in own name – refund of ST earlier deposited twice– whether permissible?
 
Brief Facts:- Respondents are engaged in the manufacture of footwear falling under Sub-Heading No. 640110 of Central Excise Tariff. They availed ser­vices of Goods Transport Agencies for transportation of inputs and final prod­ucts. Since they fall under Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the liability to pay service tax in respect of Goods Transport Agency shifted on them as they were recipient of the service and they were registered under Service Tax.
 
Respondent received services from M/s. Okay Transport Corpo­ration. They deposited the Service tax amounting to Rs. 1,14,091/- on taxable service received from the transporter vide TR-6 No. 1 dated 28-3-2007 at the main branch of State Bank of India, Gorakhpur. However, they mentioned the name of M/s. Okay Transport Corporation in the name of TR-6 challan instead of men­tioning their own name.
 
Once the Respondent came to know about the mistake of not showing the name cor­rectly, they remitted the same amount i.e. Rs. 1,32,985/- again vide TR-6 challan dated 15-5-2007 in main Branh, Gorakhapur wherein they mentioned their own name and registration number. Since Service tax was paid twice for the same service, they filed refund application claiming refund of Rs. 1, 14,091/- paid by them against TR-6 challan dated 28-3-2007. They also submitted a disclaimer certifi­cate from M/s. Okay Transport Corporation to the effect that they have no objec­tion in refunding the said amount to the respondent.
 
A show cause noticed dated 17-4-08 was issued for rejecting the claim on the ground that the TR-6 challan dated 28-3-2007 was showing the name and address of M/s. Okay Transport Corporation Ltd.
 
The Assistant Commis­sioner rejected the refund claim vide order dated 17-4-08 on the ground that the TR-6 challan bear in the name of M/s. Okay Transport Corporation and the ser­vice tax registration number indicated on the TR-6 challan as AAAFV 8284 DST 001 belonged to Veebros Freight Carriers, Kanpur.
 
In appeal, the Commissioner (Appeals) allowed refund claim by holding that both amounts have been paid by the same party viz. the Respondent against the same service on account of mistake and the Respondent is eligible for the refund.
 
Aggrieved by order of the Commissioner (Appeals), Department filed appeal before the Tribunal on the ground that refund can be granted only to M/s. Okay Transport Corpora­tion who made the actual payment as per TR-6 challan and not to the Respon­dent.
 
Reasoning of Judgment:- The Tribunal held that Section 11B of Central Excise Act, 1944 is made applicable for the purpose of claiming refund under service tax also. Under this Section, it is not necessary that the person paying the tax has to make the claim for refund. Any person is authorised to claim the refund, if the applicant is able to furnish docu­ments to establish that the amount of duty in relation to which such refund is claimed was collected from or paid by him and such incidence of duty has not been passed on by him to any other person. In this case the duty incidence has in fact has been paid by the Respondent only. They have also produced a disclaimer certificate from M/s. Okay Transport Corporation, Kanpur. The other objection is that the service tax code indicated is not that of M/s. Okay Transport Corpora­tion but that of M/s. Veebros Freight Carriers. This does not alter the situation because the duty has been paid by the Respondent. No merit in appeal.
 
Decision:- Appeal rejected. Cross Objection disposed of.

Comment: - The service tax deposited twice has to be refunded whether it is deposited in own name or in the name of other person. Furthermore, Section 11B allows refund can be claimed by any person.

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