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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/2010-11/1063

Payment of Service Tax on GTA from Cenvat credit

Case: Commissioner of Central Excise, Chandigarh v/s M/s Winsome Yarns Ltd
 
Citation: 2011-TIOL-105-CESTAT-DEL
 
Issue:- Payment of GTA can be made from cenvat credit.
 
Brief Facts:- Respondent are engaged in the manufacture of cotton yarn and cotton blended yarn. They were also registered with the department for service tax in respect of goods transport agency, as deemed provider of services.
 
Respondent discharged their service tax liability for GTA service for the period from January 2005 to November 2005 by utilizing cenvat credit on inputs/input services/capital goods.
 
Revenue was of the view that the respondent was not entitled to use the otherwise earned cenvat credit for payment of central excise tax on GTA services so availed by them. Show cause notice was issued to the respondent and order was passed confirming the demand and imposing penalty.
 
In appeal, the Commissioner (A) set aside the impugned order and held that a person who is liable to pay service tax is considered to be providing an output services, as such the deemed services provider is liable to pay service tax, so the output service provider could utilise the cenvat credit earned for discharge of service tax on such output services. The Commissioner (A) had considered the explanation under Rule 2 (p) of CCR, 2004 which was omitted w.e.f. 19.04.2006. Accordingly, it was held that as demand pertaining to the period from Jan 2005 to November 2005 i.e. before such Rule was omitted, there was no restriction for utilizing Cenvat credit for discharge of service tax on GTA services.  
 
The Commissioner (A) had also relied upon the judgments given in the cases of Bhushan Power & Steel Ltd v/s CCE [2008 (10) STR 18 (Tri-Kol)], India Cement Ltd v/s CCE [2007 (7) STR 569 (Tri-Chennai)], Andhra Pradesh Paper Mills v/s CCE [2007 (8) STR 1669 (Tri-Bang)], Soundaraja Mills Ltd v/s CCE [2008 (223) ELT 203 (Tri-Chennai)], CCE v/s Rishabh Spinning Mills Ltd [Final order No. 1070-71/2008-SM (BR) dated 03.07.2008], CCE hd v/s Nahar Exports Ltd [2008 (223) ELT (Tri-Del)].
 
Revenue is in appeal against the order of the Commissioner (A).
 
Appellant’s Contentions:- Revenue contended that the decisions relied upon by the Commissioner (Appeals) have not been accepted by the department and appeal is filed and pending before the respective High Courts against such decisions.
 
Respondent’s Contentions:- Respondent-assessee relied upon the judgment dated 06.05.2010 of the Punjab & Haryana High Court wherein the appeal of Revenue in the case of M/s Nahar Industrial Enterprises Ltd and number of other judgments was dismissed.
 
Reasoning of Judgment:- The Tribunal noted that the High Court had observed that in terms of Para 2.4.2 pf CBEC Excise Manual of Supplementary Instructions, there is no legal bar to the utilisation of cenvat credit for the purpose of payment of service tax on GTA services. It was further observed that apart from the above, even as per Rule 3 (4) (e) of the Cenvat Credit Rules, 2004 the cenvat credit may be utilised for payment of service tax on any output services. Accordingly, the High Court had dismissed the Revenue’s appeal by observing that the Commissioner (A) as well as the Tribunal have rightly held that the respondents were entitled to pay service tax from cenvat credit.
 
The Tribunal held that the issue involved in present appeal is decided by the Punjab & Haryana High Court. Order of the Commissioner (A) upheld.   
 
Decision:- Appeal rejected.
 
Comment:- This issue is still raised by audit parties in many cases. Even after the High Court decision in the matter, the Commissioner (Appeal) is deciding in favour of revenue. Thus litigation is being continued. 

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