Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1342

Whether allegation of suppression is sustainable in situation of revenue neutrality?
 
 

Case: - INDIA TRIMMING PVT. LTD. VERSUS COMMISSIONER OF C.EX., COIMBATORE

Citation: - 2012 (28) S.T.R. 401 (Tri-Ahmd.)

Brief fact: - The Appellants are manufacturer and exporter. During the course of their manufacture and export activity, they have taken the services of Goods Transport Agency and paid commission to overseas service provider. The appellant did not show the amount of GTA availed by them and commission paid from overseas in their ST3 Return and did not pay service tax on these two services. During the course of investigation, it was pointed out by the Department that they are required to pay service tax on these two activities under reverse charge mechanism. On pointing out by the Department, the appellants paid service tax along with interest.
Thereafter, the appellant was issued show-cause notice for appropriation of the amount of service tax and interest paid by the appellant and proposing penalty under Section 78 of the Finance Act. Both the lower authorities has imposed penalty under Section 78 of the Finance Act, 1994 equal to the service tax amount.
Aggrieved by the said order, the appellants are in appeal before the Tribunal.

Appellant Contention: - The learned counsel for the appellant submits that the appellant were under a bona fide belief that they are not required to pay service tax for GTA and commission paid to abroad under reverse charge mechanism as they are not service provider. He further submitted that the appellants are manufacturers and exporters and they are discharging their service tax liability for the remaining activities. He further submitted that if at all they have paid service tax on these two activities they are entitled to take credit of the same. Therefore, there is a situation of revenue neutrality and in that situation the allegation of suppression is not sustainable. In support of these contentions, he relies on the Tribunal's decision in Amman Steel Corporation v. CCE, Trichy - Vide Final Order No. 277/2011, dated 1-2-2011 [2011 (22) S.T.R. 563 (Tri.)]. In view of these submissions, it is prayed that penalty under Section 78 be waived.

Respondent Contention:-   The learned AR contended that both the lower authorities have given clear finding in the impugned orders that the appellants have suppressed the material fact from the Department and if at all investigation could not be conducted the evasion of tax could not be found out. It is further submitted that the appellants are having service tax registration and that they are dealing with excisable goods as well as taxable services, they must know the law clearly. As they did not pay the service tax on GTA and commission paid to abroad, therefore it is a case of suppression. In view of these it is prayed that the impugned order be sustained.
 
Reasoning of Judgment:- The Tribunal held that it is a case  where the service tax has been paid alongwith interest on pointing out by the department during the course of investigation. If the appellant  have paid the service tax they are entitled to take credit of the same. In that view, it cannot be said that by suppressing the fact that the appellants are going to get extra benefit on account of suppression. The Tribunal has followed the decision in the case of Amman Steel Corporation (supra), which is reproduced as below:-
 
 "6. I have carefully considered the submissions from both sides and perused the records. The service tax on GTA services was introduced w.e.f. 1- 1-2005. Rule 2(1)(d)(v) provided that the service tax in respect of GTA services can be paid by any of the following persons :-
(a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948)
(b) any company established by or under the Companies Act, 1956 (1 of 1956)
(c) any corporation established by or under any law
(d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India
e) any co-operative society established by or under any law
(f) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, or any body corporate established, or a partnership firm registered, by or under any law, any person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage .
 
In other words, the service tax was payable not necessarily only by the service provider unlike in most of the other services. Further, in the initial stages there were disputes relating to as to who shall pay the service tax on GTA services. In these circumstances and in view of multiplicity of persons out of whom one of them was required to pay service tax, the claim of the appellants that they were in the bona fide belief that they were not required to pay service tax and there has no deliberate intention on their part to evade the service tax, deserves to be accepted. On the officers' pointing out that as recipient of the GTA services who are paying the freight for such services, they were liable to pay the service tax, they have proved their bona fide by paying service tax along with interest promptly. In these circumstances, it is deemed as appropriate that the appellants who are dealers of scrap have to be extended the benefit of provisions of Section 80 of the Finance Act, 1994."
 
In this case also, if the appellant have paid service tax they are entitled to take credit of the same. In that view, it cannot be said that by suppressing the fact that the appellants are going to get extra benefit on account of suppression. In view of these observations and following the decision in the case of Amman Steel Corporation (supra), the Tribunal are of the view that penalty under Section 78 of the Finance Act is not sustainable. Accordingly, penalty under Section 78 is waived and the appeal is disposed of in the above terms.
 
Decision:-  Appeal disposed off.
 
Comment:- The analogy drawn from this case is that where the situation is revenue neutral, and assessee is not getting any extra benefit from the default then the allegation of suppression of facts cannot materialize and the assessee is entitled to the benefit of the provisions of section 80 of the Finance Act.

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