Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2521

Sales tax and Service tax are mutually exclusive taxes.

Case:-M/s TANEJA AEROSPACE AND AVIATION LTD Vs COMMISSIONER OF CENTRAL EXCISE, CHENNAI-III
 
Citation:-2015-TIOL-171-CESTAT-MAD
 
 
Brief Facts:-  The applicant entered into a lease agreement with a foreign company viz. M/s. Cessna Finance Corporation, Kansas, USA (lessor), to acquire CESSNA make Aircraft on lease for 10 years. The applicant is paying monthly lease rent to the lessor. The adjudicating authority confirmed the demand of service tax of Rs. 1,24,37,902/- along with interest and penalty, under the category of "Supply of tangible goods" under Section 66 of the Finance Act, 1994, for the period from May, 2008 to January, 2013.
 
Appellant Contentions:- The Ld. Advocate on behalf of the applicant submits that the adjudicating authority admitted the fact that the control over the goods to the extent of maintenance and smooth functioning of the aircrafts during the lease period was with the applicant. The Ld. Advocate drew the attention of the Bench various clauses of the lease agreement to establish that the effective control of the property is with the applicant. He also drew the attention of the Bench Board's Circular No. Dy. No. 20/Comm. (ST)/2009 dated 02.09.2009, wherein the issue on levy of service tax exclusively on chartering of Aircrafts has been clarified. He strongly relied upon the stay order of the Tribunal in the case of Blue Dart Aviation Ltd. Vs. CST, Chennai - 2012 (28) STR 386 (Tri.- Chen.) and 2013 (30) STR 429 (Tri.-Chen.). He also submits that they have provided the crew and maintenance, insurance etc.
 
Respondent Contentions:- On the other hand, the Ld. AR on behalf of the Revenue submits that it is an operational lease and therefore, no effective control is with the applicant. It is only the operative control over the applicant. He also submits that the applicant caters maintenance except the changing of the engine without the consent of the owner.
 
Reasoning of Judgement:- After hearing both the sides and on perusal of the records, we find from the agreement that Clause 27 (b) provides the lessee (applicant) certifies that lessee is responsible for operational control of the aircraft under this lease during the term hereof. Lessee further certifies that lessee understands its responsibility for compliance with applicable Federal Aviation Regulations. Prima facie, it is noted that the maintenance of the aircraft lies with the applicant except change of engine as contended by the Ld. AR. The definition of supply of tangible goods provides that to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use without transferring right of possession and effective control of such machinery, equipment and appliances. The adjudicating authority observed that the applicant had availed aircraft on lease basis only without any legal possession. Prima facie, we find that the applicant acquired the aircraft on the basis of the lease agreement, which is the legal possession.
 
It is seen that on the identical issue, the Tribunal in the case of Blue Dart Aviation Ltd. (supra), granted unconditional stay. The Ld. AR strongly emphasis that Clause 14(II) of the agreement, which provides that the owner may enter into the premises where the aircraft is located and take possession of and remove the aircraft with or without notice to the lessee, and with or without legal proceedings, all without liability of owner to lessee. We find that Clause 14 of the agreement would be invoked in the event of default, that the right accrues with the owner. On the other hand the Ld. AR also contended that the maintenance is also on the applicant except replacement of the engine. The Commissioner has also accepted that the maintenance is provided by the applicant. The adjudicating authority emphasized that there is no sale in this case. We find that this issue is clearly dealt by the Tribunal in the case of Blue Dart Aviation (supra), which is reproduced below:-
 
 
 
"7. It also stands argued by the learned Senior Advocate that such type of transfer or right to use the aircraft for any purpose is to be considered as "deemed sale" in view of Article 366(29A) of the Constitution of India, 1950, which was introduced by way of 46th Amendment to the Constitution. For better appreciation of the same, we reproduce the relevant portion of the said Article as under:-
"tax on the sale or purchase of goods" includes –
 
(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
 
(c) a tax on delivery of goods on hire - purchase or any system of payment by instalments;
 
(d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;"
 
In terms of sub-clause (d) of the said Article, tax on the sale or purchase of goods included a tax on transfer or right to use any goods for any purpose for cash. The fact that the same is for specified period will not alter the status of the deal. Ld. senior advocate clarifies that in terms of the said provision, the deal between the appellants and M/s. EAT is required to be treated as "deemed sale" so as to be covered by the provisions of sales tax. However, on being questioned, he clarifies that no sales tax is being paid on the said deal, on account of import of the aircraft, which is covered by exemption in terms of provisions of Section 5 of the General Sales Tax Act, 1956. Nevertheless, he submits that inasmuch as the deal is required to be considered as 'deemed sale' and the sales tax and service tax being mutually exclusive to each other, the confirmation of service tax against the appellants is not justified.
 
In view of the said argument of the learned senior advocate also, we find that the appellants has a good prima facie case in its favour.
 
Ld. JCDR, Shri V.V. Hariharan appearing for the Revenue accepts that in view of prima facie nature of the matter, as clarified in the above reproduced clarification of the Board, stay may be granted to the applicants.
 
In view of the above, we dispense with the condition of pre-deposit of service tax confirmed against the applicants and penalties imposed upon them. Stay petition is allowed unconditionally.
 
In view of the above discussion, we waive the pre-deposit of entire tax along with interest and penalty till the disposal of the appeal.
 
Decision:- Stay granted.
Comment:-The gist of this case is that when a transaction is treated as “deemed sales” and sales tax is leviable on the same, no service tax can be levied on the same transaction because sales tax and service tax are mutually exclusive taxes. The stay application was allowed by following the ratio of decision given in the case of Blue Dart Aviation Ltd.
 
Prepared By:Meet Jain

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