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 Law/2013-14/2019

No liability of service tax if service is “export” under Export of Service Rules, 2005.

Case:- GECAS SERVICES (I) PVT. LTD. Versus COMMISSIONER OF SERVICE TAX, NEW DELHI

Citation:-2013 (32) S.T.R. 220 (Tri.- Del.)

Brief facts:-The application for stay is in the context of an adjudication order dated 15th March, 2012, passed by the Commissioner of Service Tax, Delhi, confirming the demand of service tax, interest and penalty. The petitioner/appellant is a provider of 'Support Services of Business or Commerce' and 'Manpower Recruitment or Supply Agency Services' as defined under Section 65(105)(nzq) read with Section 65(104c) and Section 65(105)(k) read with Section 65(68), respectively of Finance Act, 1994.
 
By show cause notices dated 22-4-2010 and 30-10-2010, the petitioner was alleged to have failed to remit service tax for the period 2006-07 to 2009 (covered by the two show cause notices mentioned above); to be disentitled to credit on transactions on which money was received in foreign currency; and disentitled to immunity to service tax under Export of Services Rules, 2005. After a due process the adjudicating authority passed the impugned order.
 
Appellant’s contention:- The petitioner relied on the judgment of a Larger Bench of this Tri­bunal in Paul Merchants Ltd, v. C.C.E., Chandigarh, reported in 2012-TIOL-1877- CESTAT-DEL = 2013 (29) S.T.R. 257 (Tri.-Del.)wherein the Tribunal per majority held that export of service is to be determined strictly with reference to provi­sions of Export of Services Rules, 2005; that money transfer service (in the context of Paul Merchants), is deemed to be provided from overseas company to the clients who approached the overseas company or their agents, for remitting money from friends/relatives in India and such service is 'business auxiliary service'. As the services were provided to the overseas respondent, during the period in dispute it is classifiable as 'Business Auxiliary Services' and had been exported in terms of provisions of Export of Services Rules, 2005, and hence, no tax is leviable.

Respondent’s contention:-The respondent reiterated the findings of the lower authorities.

Reasoning of Judgment:-After hearing the petitioner and pursuing the records, the tribunal  has decided that the ratio of the Larger Bench in Paul Merchants Ltd.is applicable to the facts in the present case, as the services were provided by the petitioner to the overseas company M/s. GECAS, Ireland. From the facts and circumstances of the present case, it prima facie appears that it is not the case of the Revenue that any of the enumerated services were provided by the petitioner/assessee not to GECAS, Ireland but to those prospective customers or manu­facturers of products in India, nor is it the case of Revenue that any part of the remuneration is received by manufacturers of Indian products or prospective customers of GECAS, Ireland. The several services are provided by the assessee to the Irish company (as noticed in the adjudication order).  Services provided to the Irish company, fall within provisions of Export of Services Rules, 2005, and therefore are exempt from the charge to service tax, as held in the case of Paul Merchants (supra). Similar view is reiterated in M/s. Nokia India Pot. Ltd. v. CST, Delhivide interim order dated 8-4-2013. In another case the Mumbai Bench of this Tribunal vide Final Order dated 12-3-2013 in Vodafone Essar Cellular Ltd. v. C.C.E., Pune-III, reported in 2013-TIOL-566-CESTAT-Mum = 2013 (30) S.T.R. 81 (Fri. - Mum.), reiterates the same principle and had followed the decision in Paul Merchants(supra).The con­clusions in the adjudication order read under:-

(a)    Services provided by the assessee are 'Support Services of Business or Commerce, for the business of M/s. GECAS, Ireland in India; and

(b)    However, services were used in India as all the activities were per­formed in India and all the prospective clients are located in India. Since the identification of prospective customers is to be made in India only, the services have been used and consumed in India.
 
On the aforesaid analysis, the appellant is seen to have a strong prima 'facie case, the services provided falls within provisions of Export of Services Rules, 2005, and are exempt from service tax. We are therefore inclined to grant total waiver of pre-deposit and stay operation of the impugned adjudication or­der, pending disposal of appeal. Accordingly, stay application is allowed.
 
Decision:- Stay Application allowed.
 
Comment:-The  substance of this case is that when it is clear that the impugned service provided is export of service, and it also satisfies all the conditions of export, no service tax is payable on such service.
 
 

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