Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1174

Whether during the period Apr 2005 to Mar 2007, when the appellant as recipient of GTA service, service tax on GTA service received by them could be paid through Cenvat credit.

Case:M/s ITC Ltd v/s Comm. of Central Excise, Guntur

 

Citation:2011-TIOL-568-CESTAT-BANG.

 

Issue: -Whether during the period Apr 2005 to Mar 2007, when the appellant as recipient of GTA service, service tax on GTA service received by them could be paid through Cenvat credit.  

 

Brief Fact:- As per provision of Section 68(2) of Finance Act, 1994 read with Rule 2(1)(d)(v) of Service Tax Rules, 1994, the appellant (a public ltd. company) were liable to pay service tax on GTA services received by them from various GTA service providers. The appellant were neither providing any output service to any customer or client during the period from 1.4.05 to 31.3.07; nor were they manufacturing any dutiable final product. The appellant had taken service tax credit on a number of input services and had used this credit for payment of service tax on GTA services received by them for which they were liable to pay service tax as service recipient.

 

Department alleged that the GTA service received by the appellant is not their output service, the service tax should have been paid in cash and not by utilizing the Cenvat credit and to the extent the service tax has been paid through Cenvat credit, the credit has been wrongly utilized. On this basis show cause notices were issued to the appellant for demand of service tax along with interest and also for imposition of penalty. The Adjudicating Authority confirmed the demand with interest and also imposed penalty under Section 78 of the Finance Act, 1994. Against this order, appeal has been filed before the Tribunal by appellant-assessee.

 

Reasoning of Judgment: -The Tribunal held that the recipient of GTA service who is not engaged in providing any taxable output service or manufacture of dutiable final product is not entitled to utilize cenvat credit account for discharging service tax on GTA services. It was held that Rule 2(r) of CCR, 2004 creates a legal fiction so as to expand the scope of the term “provider of taxable service”, to include the persons covered by clause (d) of Rule 2(1) of the STR, 1994 who by virtue of being recipient of certain taxable services, are liable to pay the service tax on the same.

 

It was held that the legal fiction created under explanation to Rule 2(p) is applicable only to persons who do not provide any output service or manufacture any dutiable final products and not to persons who provide some taxable service/services and /or manufacture some dutiable final products.

 

With regard to category of persons neither providing any taxable service not manufacturing any dutiable final product, to which the appellant belong, but liable to pay service tax on some taxable service received by them, while during the period w.e.f. 19.04.2006 such taxable service received by them cannot be treated as their output service, during the period prior to 19.04.2006 while the taxable service received by them, on which they were liable to pay service tax, was deemed to be their output service by virtue of Explanation to Rule 2(p), they were still required to pay service tax on such deemed output service through cash, not through cenvat credit without providing any taxable output service or manufacture of dutiable final products, they could not avail any cenvat credit in respect of any duty paid goods received by them or other taxable services received by them. The duty paid goods received or other taxable service received by such person cannot be deemed to be inputs and input services fir his deemed output service.

 

It was held that the Service tax on GTA service paid through Cenvat credit account was recoverable from the appellant.

 

On the issue of limitation, the Tribunal perused the record, and concluded that all the 3 show cause notices were issued within one year from the respective relevant date and therefore were not time barred.

 

With regard to penalty imposed under Section 78 it was held that penalty under this section was imposed in case of fraud, collusion, willful suppression etc. with an intent to evade payment of duty. But in case of appellant there is no such allegation made in the show cause notice. Also, the appellant were regularly filing ST-3 returns in which payment of service tax through Cenvat credit is declared. The necessary element of invoking Section 78 was not present. Penalty was not sustaianable.

 

Impugned order confirming the demand alongwith interest upheld. Penalty under Section 78 set aside.

 

Decision: -Appeal disposed of accordingly.

 

*************

 
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