Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  No Service Tax On Reimbursed Salary of Seconded Employee: CESTAT *  Customs Dept. Can’t Deny Exemption Benefits Based On Laboratory Test Reports Not Drawn As Per ISI: CESTAT *  Service Tax Not Payable on Hostel Buildings Rented to Educational Institutions: CESTAT *  GST Penalty on Partners Valid Even for Pre-2021 Transactions U/s 122(1A): Gauhati High Court  *  KYC Verification Of Importer By Customs Broker Through Govt. Portals Enough, No Physical Verification Required: CESTAT  *  GSTN Extends Timeline for implementation of mandatory “Ship To GSTIN” and Voluntary Closure of E-Way Bill functionalities.  *  Customs Dept. Can’t Indefinitely Suspend Cargo License Without Inquiry: CESTAT  *  No Evidence of Customs Broker’s Knowledge of Mis declared Sugar Export: CESTAT Quashes Penalty Under CBLR.  *  Transportation Charges Not Taxable as Business Support Service: CESTAT  *  No Gold Seizure Without Proof of Smuggling or Foreign Origin: CESTAT *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines
Subject News *  Personal Hearing Before Reply Deadline: Uttarakhand HC Quashes GST Assessment Order. *  GST Assessment Order Invalid Where Notice, Reply, Hearing Dates Were Fixed on Same Day: Allahabad High Court *  GST Assessment Order Quashed for Denial of Personal Hearing Despite Taxpayer Opting ‘No’ in DRC-06: Gujarat High Court *  Reversal of CENVAT Credit Equals Non-Availment: CESTAT *  Rule 9(1)(bb) Can’t Be Invoked to Deny CENVAT Credit When Penalty Proceedings Fail: CESTAT *  • Customs Duty Exemption on Edible-Grade Oils Used in Cosmetics: CESTAT  *  Bona Fide Purchaser Can’t Be Denied ITC Merely For Seller’s Deposit Tax Failure: Gauhati High Court  *  Reversal of CENVAT Credit Equals Non-Availment: CESTAT  *  Sec. 73 & 74 Permit Consolidated Proceedings Across FY: Gauhati High Court Upholds Multi-Year GST SCN  *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case   

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1298

Refund admissible when service tax paid even under SSI exemption and no return filed.

Case:- NANDAN KUMAR GOILA versus COMMISSIONER OF CENTRAL EXCISE DELHI-II
 
Citation:- 2012 (27) S.T.R. 33 (TRI. – DEL.)
 
Brief Facts:- The Assessee provided the service of "Manage­ment Consultancy Service" to M/s Usha International Ltd. and received an amount of Rs. 20 lakhs. Under the impression that they are liable to pay service tax, the assessee remitted Rs. 2,13,360/- on 26.03.2009 but before filing the return, they realized that they were eligible for the exemption for the small service provider as provided under Notification No. 6/2005-S.T., dated 1-3-2005. Therefore, at the time of filing half yearly return which was to be filed, they had indicated that they had made excess payment and that their li­ability did not work out to the amount which they had paid. They also filed a separate refund claim after filing the return. But the refund claim filed by the appellant was rejected on 3 grounds:
 
1. The first proviso to the Notification No. 6/2005 ST provides that any option exercised by the assessee in any financial year, not to avail the exemption, cannot be withdrawn during the remaining part of the financial year. The Revenue’s contention was that when the assessee remitted the tax on 26.03.2009, he exercised the option not to avail exemption. Further, no option was given by the assessee in writing either to avail or not to avail the exemption.
 
2. There was unjust enrichment and so refund could not be granted to the assessee.
 
3. The amount involved has been shown as expenditure in the Profit & Loss account and so the incidence of tax has been passed on.
 
 
Appellant Contentions:- The appellant submits that service tax has to be borne by the appellant and therefore, there was no question of passing of the incidence of service tax. The appellants have also produced a certificate from service receiver stating that they had not reimbursed any amount towards service tax and therefore, there is no question of unjust enrichment involved in this case. They further submit that at the time of fil­ing the return itself, they had claimed that they were availing small scale exemption. They did not make any payment for the first half year also shows that they were availing the exemption. They did not get registered either. This also shows that they were availing exemption for small scale service provider. Further Notifica­tion No. 6/2005-S.T. does not prescribe filing of written options. In the matter of entries in the profit and loss account, they submit that since the amount was remitted in the bank, the amount has to be necessarily re­flected as expenditure and the said amount was shown as such and this cannot be a ground to conclude that the incidence has been passed on to the person availing the service. They also submit that they were an individual providing service and the fact that a higher amount was remitted at the time of remitting the ser­vice tax amount by a challan, cannot prove that they had intention not to avail the exemption and that they have passed on the liability to the person availing the ser­vice.
 
The appellant also points out the decision in Cimmco Ltd. v. C.C.E. reported in 1999 (107) E.L.T. 246 (CEGAT) holding that where contract rates are inclusive of duties and tax, the interpretation should be that tax that was due was paid. Even zero liability can be considered as tax due. Such con­tracts do not by itself prove that incidence has been passed on.
 
Respondent Contentions:- The Respondent submits that if the payment made is treated as deposit, there are decisions of Courts that principle of unjust enrichment will apply to deposits made also. It is the argument of Revenue that when tax is paid, the appellant's realization is lower than the cum tax value which he actually gets from service receiver. When the amount is now refunded to him, it amounts to higher realization for him and therefore, there is clearly unjust enrichment.
 
 Reasoning of Judgment:- We have considered arguments of both sides. We note that the disputed amount has not been realized as service tax from the person to whom service is provided. It is also to be noted that appellant had not filed a service tax return and the amount deposited in the tax account of the Government becomes pay­ment towards service tax only when return is filed. Therefore, it is a strictly not a refund of service tax paid. The case laws relating to pre-deposit are in the context where the deposits were made towards duty liability at least pro­visionally determined in pursuance of adjudication order. In the present case, neither tax has been passed on as tax nor the amount has been shown in return as paid towards tax. What has happened is only remittance of a higher amount to the bank for credit to service tax account. Therefore, it is held that unjust enrichment is not involved in this case and the amount is to be refunded to the appellant. The appeal is allowed.
 
Decision: - Appeal Allowed.
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