Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1369

Whether confirming service tax demand on accrual basis rather on receipt basis after disallowing benefit of notification 12/2003 justifiable?

Case:-NAG INTERIORS (P) LTD. VersusCOMMISSIONER OF CENTRAL EXCISE, BANGALORE
 
Citation:- 2012 (28) S.T.R. 620 (Tri. – Bang.)

Brief Facts:-This application seeks waiver of pre-deposit of service tax amounting to Rs. 2,36,80,916/- relating to the period 16th June 2005 to 31st March 2010 along with interest and penalties imposed un­der various sections. The appellant were under­taking execution of "interior designs", as designed by different architects. They were executing the work after using bought-out items like wood laminates, pipes, electrical items, plumbing items and glass etc. They were paying service tax under the category of "Commercial and Industrial Construction" services with effect from 16-6-2005 up to 30-6-2007 and thereafter started paying under the category of works contract. A show-cause notice dated 7-9-2010 was issued proposing demand of service tax alleging that the appellants were not eligible for the benefit of Notification No. 12/2003-S.T., dated 20-6-2003 and that they were also not eligible for paying service tax under the category of works contract. Commissioner confirmed the demand along with interest and imposed penalties as mentioned above.
 
Appellant Contentions:-
 
The learned advocate of the appellant challenges the order of the Commissioner on the following grounds:
Ø  During the relevant period, they have executed the orders. A part of these amounts was mentioned as due from sundry debtors but has not actually been received.
Ø  They have utilized/supplied goods while rendering the services and they have paid VAT under differ­ent schemes as applicable in respect of such goods.
Ø  The taxable value was to be calculated excluding the value of goods which was subject to VAT and the duty payable on it have already paid by them.
Ø  The denial of the benefit of exemption under Notification No. 12/2003 on the ground that no documents have been produced was not justified as the invoices raised on the service recipients clearly indicated the rate analysis of various items which were sup­plied/utilized while rendering the services and on that basis on the supply/sale of such items, VAT was paid.
Ø  Denial of benefit under the works contract was not justified. The Commissioner has held that no option was exercised for paying ser­vice tax under the head Works Contract. The option under Works Contract would arise only when service tax was sought to be paid under the composite scheme and not for regular assessees.
Ø  Referring to Board's Circular No. B-1/16/2007-TRU, dated 22-5-2007, he submits that any contracts which are treated as works con­tracts for purposes of levy of VAT/sales tax shall also be treated as works contract for purposes of levy of service tax.
 
Respondent Contentions:-Learned Commissioner (A.R.) reiterated the findings and reasoning of the Commissioner. He relied on the decision of the Larger Bench of the Tribunal in the case of Aggarwal Colour Advance Photo System v. Commissioner of Central Ex­cise, Bhopal [2011 (23) S.T.R. 608 (Tri.-LB.)] and submitted that for the purpose of Notification No. 12/2003, only actual sales could be considered and not the deemed sales. He further submitted that Commissioner has denied the benefit as the appellants have failed to produce necessary documents indicating sale of the goods. For the purpose of paying service tax under works contract, the contract should involve supply of goods and rendering of services in a composite man­ner. Once the appellants exclude the value of the goods, they cannot seek as­sessment under works contract.
 
Reasoning of Judgment:- Tribunal has carefully considered the submissions from both sides and perused the records. The Commissioner has confirmed the demand treating the amounts mentioned as "receivables" as service charges received by the appellant. This is erroneous as the service tax is liable to be paid on actual amounts received and not on amounts which may be receivable and not yet received. The Commissioner fined that the appellants have executed orders and they claim that value of goods involved in rendering of the said services. Commissioner has totally disallowed the claim for deduction of value of goods. In other words, he has taken the entire value of services rendered. It is not disputed that the appellants have paid VAT on goods valued. As per Board's clarification dated 22-5-2007, any contract which is considered as works contract involving payment of VAT deserves to be treated as works contract for purposes of levy of service tax. Further, for the period prior to 1-6-2007, the denial of benefit of Noti­fication No. 12/2003 may not be justified in the light of documents submitted by the assessee which contained detailed specifications and value of the material supplied/utilized while rendering the services. Prima facie, the appellants were eligible for benefit of Notification No. 12/2003. Undisputedly, the appellants have paid service tax which according to them was payable after availing the benefit of Notification No. 12/2003 and under works contract from 1-6-2007. In view of the above, it was held that the appellant has made out a case for waiver of balance of dues as per the impugned order and, accordingly, waiver of pre-deposit of balance of dues is granted and stay recovery thereof till dis­posal of the appeal.
 
Decision:-Stay Granted.
 
Comment:- The analogy drawn from this case is that service tax liability cannot be confirmed on receivables basis when the same arises on receipt basis. Further, the benefit of notification 12/2003 regarding deduction of value of goods from the taxable value for levy of service tax cannot be denied merely on the grounds that the documents indicating sale of goods were not submitted when it can be clearly established that there was sale from the invoices produced by the assessee.
 

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