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/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