Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1310

Mode of Payment of Service tax on GTA service before 18.04.2006

Case: Commissioner of Central Excise & Service Tax v/s The Supreme Industries Ltd.
 
Citation: 2011-TIOL-1082-CESTAT-MUM
 
Issue:- Whether service tax on GTA service received is required to be paid in cash even before 18.04.2006?
 
Brief Facts:- Respondent-assessee is engaged in the manufacture of Moulded Plastic articles such as Furniture, Crates falling under heading 94.01 and 39.23 respectively. They paid service tax on transport of inputs (GTA service) through CENVAT credit.
 
Department initiated proceedings against them on the ground that respondent had wrongly debited service tax to CENVAT credit amounting instead of paying through PLA. Accordingly, recovery of cenvat credit was ordered and penalty of equal amount under Rule 15(2) of Cenvat Credit Rules, 2004 and penalty of Rs. 3000/- under Rule 15(3) of CENVAT Credit Rules, 2004 and penalty of Rs.4000/- under Rule 25(1)(a)/25(1)(d) of Central Excise Rules, 2002 were imposed.
 
Respondent challenged the order in original. The Commissioner (Appeals) allowed the appeal. Aggrieved by the same, Revenue filed present appeal before the Tribunal.
     
Appellant’s Contention:- Revenue contended that prior to 19.04.2006 irrespective of whether a person provided taxable service and/or manufactured dutiable final products or did not provide any taxable service or manufactured any dutiable final products, he was required to pay the service tax on the GTA service received by him in cash, not through CENVAT credit. It was submitted that this issue has been decided by Delhi Bench of the Tribunal in the case of M/s ITC Ltd. vs. Commissioner of Central Excise, Guntur [2011-TIOL-568-CESTAT-BANG].
 
In rejoinder, Revenue submitted that Panchmahal Steel Ltd. case is referred in the Tribunal decision in the case of M/s ITC Ltd. It was further submitted that the president of CESTAT decides the constitution of Larger Bench and in M/s ITC Ltd.'s case the President was one of the Members. Therefore, it is implied that the issue in the case of Panchmahal Steel Ltd. stands settled.
 
With regard to issue of jurisdiction, Revenue countered the said submission that the Circular does to relate to appeal to be filed with the Tribunal, in support they also placed reliance on Board's Circular no. 834/11/2006-CX, dated 5.10.2006 which provides that "all show-cause notices pending adjudication, as on the date of issue of acceptance letter will be transferred to the LTU along with all connected case papers. Cases that are in the process of being adjudicated (i.e where personal hearings have been conducted) will be decided by the jurisdictional adjudicating authority only".
 
Respondent’s Contention:- Contention of the respondent is that the issue has been referred to Larger Bench in the case of Panchmahal Steel Ltd. vs. Commissioner of C.Ex. & Cus., Vadodara-II 2008-TIOL-1606-CESTAT-AHM] and that the case has not been decided so far. Therefore, it was submitted that the case should be remanded to lower authority.
 
Thereafter, respondent raised objection regarding jurisdiction on the ground that since the case pertains to period prior to them opting for LTU, the same would fall under the jurisdictional Tribunal in view of the Board's Circular dated 10.06.2010.
 
Reasoning of Judgment:- On the issue of jurisdiction, the Tribunal held that the perusal of the circular clarified that the said circular did not relate to appeal filed with the Tribunal. Objection of respondent assessee was overruled.
 
On the main issue of payment of service tax on GTA service, it was noted that the issue was discussed at length by the Delhi Tribunal in the case of M/s ITC Ltd v/s Commissioner of Central Excise, Guntur wherein it was held that
 
“there were two type of persons receiving taxable service who are “deemed provider of taxable service” under Rule 2 (r) by virtue of being the “person liable for paying service tax” under Rule 2 (q) of CCR, 2004 read with Rule 2 (1) (d) of STR, 1994 –
 
(a)        Those who provide a taxable service/services or manufacture dutiable final products or provide taxable services as well as manufacture dutiable final products.
 
(b)        Those who do not provide any taxable service or manufacture any dutiable final products – the category to which the appellant belong.
 
It was further held therein that before 19.04.2006, the legal fiction of explanation to Rule 2 (p) is applicable only to persons of category (b) and not to category (a) persons. Therefore for such persons, the service received by them on which they are liable to pay service tax as service recipient can not be treated as their “output service” and service tax on the same will have to be paid in cash, not from Cenvat credit. As Rule 3 (4) permits utilisation of Cenvat credit for payment of central excise duty on dutiable final products or payment of service tax on taxable output service, it was held that for category (a) persons, the taxable service received by them remained their input service on which credit can be availed and use of the same for payment of duty on their final product being manufactured by them or for paying service tax on taxable output service being provided by them.
 
With regard to persons falling under category (b), to which assessee belonged, it was held in the said judgment that even though during period prior to 19.04.2006, by virtue of explanation to Rule 2 (p), the service received by them was deemed as output service, they could not take credit in respect if other taxable services received or input duty credit in respect of duty paid goods received, as they are not manufacturing any dutiable final product or providing any taxable service. In terms of provisions of Rule 3 (1) of CCR, 2004, credit of service tax paid on inputs/capital goods received can be taken only if the input services received and inputs and capital goods received are used in or in relation to manufacture of final products or providing of taxable output services. For the persons of category (b), in respect of their deemed output “service” which is the service received by them can not be deemed to be the input services received by them cannot be deemed to be the input services, as for this another legal fiction will be required, which is not there in the CCR, 2004. In the facts of the said case, it was held that since the appellant are not manufacturing any final product or providing any taxable services, the services of telephone, security services, repair and maintenance services, scientific or technical consultancy services etc, cannot be treated as the input services for their “deemed output service” i.e. GTA service received by them. Therefore, in respect of GTA service received by the Appellant, there is no question of payment of service tax through Cenvat credit account and the same has to be paid in cash.
 
Accordingly, it was concluded in the case of ITC Ltd that during the period prior to 19.04.2006 irrespective of whether a person provided taxable service and/or manufactured dutiable final products or did not provide any taxable service or manufactured any dutiable final products, he was required to pay the service tax on the GTA service received by him in cash, not through Cenvat credit.”        
 
In the present case, it was held that the judgment of the Delhi Tribunal was squarely applicable in the facts of this case. With regard to pendency of the issue before Larger Bench of Tribunal, it was held that the issue was settled.
 
Thus, it was held that the service tax paid on GTA service received by them by the appellant who was not paid in cash but was paid through CENVAT credit account the same would be recoverable from them. From the above, it is clear that the issue relating to payment of service tax on GTA service through cash was in dispute; the penalty is not sustainable and is liable to be set aside. Therefore, the order-in-appeal dropping the demand along with interest is set aside and Revenue's appeal is allowed to the above extent.
 
Decision:- Appeal disposed of accordingly.

Comment: - There were many decisions in this case in favour of assessee but this decision has been reversed the same. Even there was High Court decision on this issue but the tribunal has given the decision in favour of revenue. The legal battle will not end here and the matter will go to Court and will be settled there. Let us wait and watch.

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