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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/Case Law /2016-17/3434

Whether refund of service tax can be denied on ground of mismatch?
 
Case - ROSHAN R. JAISWAL Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR
 
Citation-2015 (38) S.T.R. 772 (Tri. - Mumbai)
           
 
Brief FactsThe brief facts of the case are that the appellant is a distributor for BSNL Pre-paid Cellular services etc. and was registered with Service Tax department under the category of ‘franchise service’. As per para 9 of the Order-in-Original, the appellant had deposited an amount of Rs. 24,73,590/- during the period 13-1-2009 to 9-11-2009 which included interest. These taxes were paid pursuant to issue of show cause notice dated 16-10-2008, which was adjudicated vide Order-in-Original dated 17-8-2009. Although the tax and interest has been deposited, the appellant had preferred appeal before the Commissioner (Appeals), who vide Order-in-Appeal No. SR/52/NGP/2010, dated 15-2-2010 allowed the appeal in favour of the appellant holding that the appellant is a trader in SIM cards and have paid the Sales Tax on such transaction and accordingly, no Service Tax is payable. Consequent to allowing of the appeal, the appellant applied for refund for the total amount of Rs. 24,76,590/-. The Assistant Commissioner while adjudicating the claim of refund, allowed refund of Rs. 23,76,070/- (Rs. 18,98,953/- being Service Tax and Rs. 4,77,117/- towards interest) observing that as per the order of the Commissioner (Appeals), the amount of Service Tax on the alleged value of Service Tax comes to Rs. 18,98,953/- and the interest on such tax comes to Rs. 5,74,637/- whereas on scrutiny of the challans it is observed that the appellant has paid Rs. 19,96,473/- as tax, and Rs. 4,77,117/- towards interest and the amount of Rs. 97,520/- was rejected. It was observed that the interest paid by the appellant does not tally with the calculation as per the appellate order and thus, the amount was rejected on the ground of mismatch.
 
Appellant’s Contention-  The appellant is in appeal before this Tribunal and states that as it has been held that no Service Tax is exigible on the appellant, whatever amount was deposited by it is acquired the character of deposit. Accordingly, the whole amount of Rs. 24,76,590/- become refundable and there is miscarriage of justice in rejecting the refund of an amount of Rs. 97,520/- out of the total claim on the account of mismatch. Accordingly, the appellant prays for allowing the appeal with a direction to the concerned authority to refund the rejected amount of Rs. 97,520/-.
 
Respondent’s Contention-  The learned AR appearing for the Revenue relies on the impugned order.
 
Reasoning of Judgment-  The amounts deposited by the appellant whether by way of tax or interest, it assumed the character of deposit when it was held in its favor that no Service Tax is payable and or exigible. Thus, the adjudicating authority has erred in rejecting the refund claim for Rs. 97,520/- on the ground of mismatch. Thus, the appeal is allowed, the impugned order is set aside and the adjudicating authority is directed to issue the refund of Rs. 97,520/- within a period of four weeks from production of a copy of this order.
 
 
Decision-Appeal allowed.
CommentThe gist of the case is that the distributor of pre paid cellular services is not eligible for paying service tax in respect of sim cards. Hence the whole service tax paid by the appellant is eligible for refund whether it has been matched or not.
 
Prepared by- Alakh Bhandari
 
 
 
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