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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/2012-13/1081

Refund of Service Tax under Notification No. 41/2007-ST

Case: CCE, DAMAN V/S M/S ASIAN PLASTOWERS PVT. LTD
 
Citation: 2012-TIOL-157-CESTAT-AHM
 
Issue:- Refund under Notification No. 41/2007-ST on GTA service – service tax payable by recipient, registration of GTA service provider not required. 
 
Filing of single appeal for two different orders of the Sanctioning Authority – not tenable – separate appeals to be filed.
 
Brief Facts:- Appellant filed refund of service tax paid on GTA service under Notification No. 41/2007-ST dated 06.10.2007. Refunds were sanctioned to the appellant buy two orders.
 
Revenue filed appeal against the sanction of refund on the ground that the invoice issued by the Service Provider did not contain the registration number of the service provider. That the details of payment of service tax were not verified.  
 
The Commissioner observed that against two orders one appeal has been filed and decided to consider the appeal against one order dated 24.07.2009 only and rejected the appeal.
 
Revenue is in appeal against the said order.
 
Appellant’s Contention:- Revenue contended that the orders were passed by the same Adjudicating Authority, therefore, one appeal was sufficient and therefore, the Commissioner (A) wrongly considered their appeal only against one order.
 
The Assistant Commissioner, while sanctioning refund, had not verified whether the service tax has been paid or not.
 
Respondent’s Contention:- The respondents submitted that the amount is only Rs 27,085 which is less than Rs 50000 and therefore the appeal may be rejected. Further, they have also stated that the Commissioner (Appeals) order was in accordance with the law and needs no interference. Respondents also took objection to the Performa used for filing appeal.
 
Reasoning of Judgment:- With regard to format of appeal, it was found that the Tribunal in the case of KRISHNA EXPORT V/S CCE, NEW DELHI [2011 (266) ELT 374 (Tri-Del) has held that no application of refund can be denied on the ground of non filing of appeal in prescribed format as this is a technical and rectifiable mistake.
 
With regard to finding about filing of single appeal against two orders, it was held that Section 85 provided for filing of appeal by the aggrieved party. It was deduced by the Tribunal that in respect of each order, a separate appeal is required to be filed. It was noted that in present case, two separate numbers have been given to both orders and it is not even a common order covering two refund claims, but separate orders have been issued. Therefore, filing of single appeal by Revenue was not justified.
 
With regard to verification of details of service tax payment, it was held that Revenue has not shown as to how the finding of assessee being eligible for refund claim is incorrect. There is no submission that service tax was not paid.
 
It was held that the proper course was to verify whether the service tax is paid by the service provider and the receiver and then file the appeal. Merely because specific finding is not given by the Sanctioning Authority, the contention cannot be accepted.
 
With regard to non-registration of service provider, it was held that as the liability was on service recipient, naturally the Service provider may not be registered and therefore, cannot provide registration number. It was held that once it is clear that service tax is paid by recipient, he will be eligible for refund and on technical ground without showing that payment was not made, refund cannot be rejected.
 
Decision:- Appeal rejected.
 
Comment:- This decision is landmark decision in respect of claim of service tax to exporters. The department has raised number of objections to deny the refund claim. We have also written a series of article of “Johnny and service tax refund” to highlight the problems faced by exporters. The refund was denied as the invoice did not contain the registration number of service provider. But it was not established that he has not paid the service tax then the refund cannot be denied on such technical issues.

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