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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 Law/2013-14/1621

Matter remanded to the adjudicating authority should be decided following the conditions of remand.

Case:- MADHYA PRADESH CONSULTANCY ORGANIZATION LTD Vs COMMISSIONER OF CENTRAL EXCISE, BHOPAL
 
Citation:- 2013-TIOL-1027-CESTAT-DEL
 
Brief facts:- The prayer in the application is to dispense with condition of pre-deposit of service tax of Rs.81, 47,713/- and penalty of identical amount imposed under section 78 of Finance Act, 1994. In addition a penalty of Rs. 1,000/- stands imposed under section 77 of Finance Act, 1994. The relevant facts in brief are that the appellant is a company registered under the company act having been promoted by national level financial institutions such as IFCI, IDBI and ICICI and such other nationalised banks. The appellants are engaged in providing consultancy services to the private sector on which they were paying service tax; they also carry on various research and development projects and other training programme acting as nodal agency on behalf of different Ministries of Central Government. Commissioner, in pursuance of show cause notice issued that the appellants have rendered taxable service by organizing work shop or seminar for the clients and therefore confirmed the demand of service tax and imposed penalty as mentioned above.
 
Appellants contention:- Learned advocated for the appellant submits that the demand of service tax has been made on amounts received as grant in aid from different government sources. No service provider - client relationship exists between the appellants and the government department. The work undertaken at the instance of government departments cannot be treated as taxable service. The grant in aid paid by the Government cannot be treated as charges for the services rendered by the appellants to the government departments. He relies on voluminous documents in support of his claim. In fact, the appellants filed application for producing certain additional evidence before the Tribunal which evidence has not been considered by the adjudicating commissioner. They also submits that identical issue has been decided by the Bangalore Bench of the Tribunal vide final order No.1113-1115/10 dt.22.7.10 in service tax appeals no.ST/555/08, ST/475/08 of ST/432/09 in the case of APICO Ltd. Co. Ltd. and others vs. CCE, Hyderabad.
 
Respondents Contention:- The respondent reiterated the findings of the lower authorities.
 
Reasoning of Judgement:- It was observed by the Tribunal thatthe order of the commissioner does not deal with the various issues raised. Further, as submitted by the learned Advocate, it was found that correspondences exchanged between the department and the appellants which are sought to be relied upon before Tribunal have not been considered by the commissioner. Further, the decision of the Tribunal dated 16.8.10 was not available when the matter was considered by the commissioner. It was also claimed that the bifurcation of taxable and non taxable services has been properly appreciated by the Commissioner.
 
In view of the above and in the interest of justice, it was deemed appropriate to set aside the order of the commissioner and remand the matter for fresh consideration after granting reasonable opportunity to the appellants. The appellants are permitted to file submissions including the evidence sought to be relied on within 45 days from the date receipt of this order. The Commissioner shall decide the issue afresh expeditiously preferably within six months from the date receipt of this order".
 
It is seen that the Commissioner in the impugned order has again confirmed duty and differentiated earlier decision of the Tribunal in the case of APICO Ltd. Co. Ltd. and others vs. CCE, Hyderabad by observing as under:-
 
It was found that the facts in the present case are dissimilar to the ones of APITCO Ltd. v. CCE, Hyderabad. The instant proceedings do not deal with the issues of relationship between assessee and government and the scope of 'scientific or technical consultancy'. I find that the decision in re APITCO Ltd. supra, sought to be relied upon by M/s. MPCON, is not applicable to the proceedings in view of difference in facts and the issue involved. In the instant proceedings, the issue involved is whether services rendered by MPCON to various individuals and concerns are chargeable to service tax when the source of money consideration is other than the service receivers".
 
As is seen from the above, the adjudicating authority has not followed earlier decision of the Tribunal in the case of APITCO Ltd. vs. CCE, Hyderabad by simply observing that the same is not applicable to the instant proceedings. However, he has not discussed as to what are facts distinguishing earlier order of the Tribunal in the case of APITCO Ltd. vs. CCE, Hyderabad from the present one. When the Tribunal has specifically remanded the matter for re-adjudication in the light of the decision rendered in the case of APITCO Ltd. v. CCE, Hyderabad, it was obligatory on the part of the Revenue to either follow the same or distinguish the same on facts or on law by making clear reference to the factual position. The observations of the adjudicating authority are not bringing out any difference between two matters. Hence, at this prima facie stage, the authority is of view that the appellant is entitled to claim unconditional stay.
 
Decision:- The stay application is allowed.
 
Comment:- The gist of the above case is that when the matter was remanded with a specific direction to decide in the light of the judgement given in the case of APITCO Ltd., the adjudicating authority ought to discuss and distinguish the case while denying its applicability in the facts and circumstances of the case. Failure to do so amounts to violation of the conditions of remand by the adjudicating authority.
 
 

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