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 Laws/2011-12/1230

Utilization of CENVAT credit for payment of service tax on GTA service by service recipient- whether permissible?
Case:Iswari Spinning Mills versus Commissioner of C. Ex, Madurai

Citation:2011-TIOL-767-CESTAT-MAD

Issue:- Utilization of CENVAT credit for payment of service tax on GTA services by service recipient – whether permissible till 18.04.2006 and even after 18.04.2006?  

Brief Facts:- Assessees have made payment of GTA service from cenvat credit account during the period before 18-4-2006 and in some cases after 18-4-2006. Department is objecting to the availment of credit for payment of service tax on GTA.

Appellant’s Contention:- Appellant-assessee contended that the recipients of GTA service are deemed to be output service providers under the law and therefore, they are entitled to pay service tax on GTA service by utilizing CENVAT credit.
For the period beyond 18-4-2006, in respect of this period (from 19-4-2006 but prior to 1-3-2008), appellant has argued that despite the deletion of Explanation to Rule 2(p) of the CENVAT Credit Rules, 2004 on 19-4-2006, they should be deemed as service providers in view of the legal provision imposing the burden of paying service tax on them for GTA service received by them, till the law was further amended on 1-3-2008.

Respondent’s Contention: - Revenue contended that recipients of GTA service are not output service providers and hence, they cannot utilize CENVAT credit for payment of service tax on GTA service.  

Reasoning of the Judgment:- The Tribunal noted that all the appeals were kept pending for the reason that the case of Panchmahal Steel Ltd. v. Commissioner of Central Excise & Customs, Vadodara-II - 2008 (12) S.T.R. 447 (Tri. - Ahmd.)was referred to the Larger Bench. However, it was noted that in the recent judgment in the case of CCE, Belgaum v. M/s. Shri Tubes & Steels Pvt. Ltditwas observed that the question referred to the Larger Bench in the Panchmahal Steel Ltd was that whether the said issue needs to be decided by the Larger Bench or not and not for the opinion of the Larger Bench on the said issue itself. Hence, the Tribunal in the present case, has taken up the matter in view of judgment given in Shri Tubes & Steels Pvt Ltd’s case.
It was noted that in the case of Shri Tubes & Steels Pvt Ltd, the detailed reasoning given in the case of CCE, Chandigarh v/s Nahar Exports Ltd [2007-TIOL-1907-CESA-DEL] in relation to the explanation clause to Rule 2 (p) was relied upon. The Tribunal in the said cases have also referred to all the subsequent judgments given in the cases starting from CCE, Chandigarh v/s Nahar Industrial Enterprises Ltd [2007-TIOL-555-VESTA-DEL] till Mahindra Ugine Steel Co. Ltd v/s CCE, Raigad [2008-TIOL-657-CESTAT-MUM]. It was noted that all these cases which related to period prior to 19.04.2006 the consistent view taken was that in view of the Explanation clause the assesse would be entitled to avail the benefit of such service tax in order o claim the cenvat credit thereof.         
The Tribunal in the present case held that as regards period prior to amendment to CENVAT Credit Rules made on 19-4-2006, i.e. for the period up to 18-4-2006, the appellants are entitled to utilize CENVAT credit for paying service tax on GTA service. Hence for the period inclusive and upto 18-4-2006, the tax demand along with demand of interest and penalties, wherever imposed are set aside in respect of these appeala.
The Tribunal found that all the decisions which are in favour of the appellants have held them to be service providers for the period upto 18-4-2006 solely on the ground of the Explanation to the definition of output service under Rule 2(p). Hence, with the deletion of the Explanation with effect from 19-4-2006, the benefit of these decisions cannot be extended to them for the period from 19-4-2006.
As far as the period beyond 18-4-2006, the Tribunal in the case of Alstom Ltd. v. CCE - 2008 (12) S.T.R. 23 has also dealt with the issue for this period and has held in that case that the credit cannot be utilized for paying service tax for this period as well. As such, as far as the period beyond 18-4-2006 is concerned, the Tribunal held that the appellant are not entitled to utilize CENVAT credit for payment of service tax on GTA service and therefore, the duty demand and demand of interest are justified.However, considering the disputed nature of the issue; the Tribunal held that imposition of penalty in respect of the period from 19-4-2006 to 28-2-2008 is not justified and wherever penalties have been imposed, the same are set aside.

Decision:- Appeals allowed. Cross Objections disposed of accordingly.

Comments:- This issue has addressed a very important amendment. Firstly, when there are two conflicting decisions of double bench then the matter should be referred to larger bench or the president has to decided whether it should be referred to larger bench or not. We wrote an article on the same titled “Changing face of precedents” on the same.
Secondly, whether the GTA can be paid from Cenvat credit? When the terms “output service”, “provider of output service” as well as “person liable for payment of service tax” has been defined under Cenvat credit then it means that the service recipient can pay tax from Cenvat credit. Further when the GTA is excluded from “output service” w.e.f 1.3.2008 then the service tax on GTA can be paid from Cenvat credit. But the tribunal has held that it is payable till 18.4.2006. The same issue applies for payment of service tax on import of service from Cenvat credit. It will have large implications. But this is not final decision. It will go to High Court also. 
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