Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1259

Whether reverse charge mechanism on import of service is applicable prior to 18.4.2006?



Case:- M/s KIOCL LTD versus CCE, Bangalore
 
Citation:- 2012-TIOL-1276-CESTAT-BANG
 
Brief Facts:-The issue here relates to the imposition of service tax on reverse charge basis under Business Auxiliary Service for the amounts paid by the appellant to foreign companies on account of commission. This commission was in fact in the nature of a discount offered to the buyer and was offered by a separate letter referring to the contract. In respect of sales of' buyers in Taiwan, they have entered into an agreement with foreign customer, appointing them as their agent in promoting sale of their product to China Steel Corporation according to the terms and conditions spelt out therein. In respect of pellets sold to buyers outside India, commission was paid to MMTC in India. They further stated that a service in relation to promotion or marketing or sale of goods produced by or belonging to the client is required to be rendered to bring an activity within the scope of business auxiliary service. In so far as the commission paid under the contract is concerned, these are in the nature of discount given to the buyers.
           
Appellant Contention:-The Appellant has pointed out that, based on the Hon'ble High Court's decision in the case of “Indian National Ship Owners Association', no service tax was leviable on any taxable service received from abroad prior to 18/04/2006 and this  was not considered by the adjudicating authority and that authority proceeded to deal with the issue on the basis of certain circulars of the Board. It was clearly submitted by the appellant that the amounts described as commission in the relevant agreements were actually in the nature of discounts given to the foreign buyers of the goods and the same were not liable to be treated as commission for the purpose of levy of service tax under ‘BAS'. The above contentions of the assessee that commission was in the nature of discount were not considered by the authorities.
 
Respondent Contention:- The Respondent submits that no findings were recorded on the plea of the assessee regarding certain transactions for the period after April, 2006 in which the amounts described as commission in the agreements were actually in the nature of discounts given to the foreign buyers through separate letters referring to the contracts.
 
 
Reasoning of Judgement:-We have considered the arguments from both sides. We find that that the Board's Circular dt. 26/09/2011 was not considered by Appellant while passing the impugned order dt. 07/10/2011, We have also not found any findings on the aforesaid plea of the assessee regarding certain transactions with foreign companies for the period after April, 2006. In these circumstances, the question whether the appellant is liable to pay service tax with education cesses on the amounts paid by them to the foreign companies from 18/04/2006, and other issues associated therewith, need to be remanded to the adjudicating authority for de novo decision. As regards the demand raised for the period prior to 18/04/2006, the issue stands settled in favour of the appellant by numerous decisions including the Hon'ble Bombay High Court's judgment in India National Ship Owners Association case (supra) which has been accepted by the CBEC. Accordingly, the demand confirmed by the adjudicating authority against the assessee for the period prior to 18/04/2006 is set aside and the corresponding penalties are vacated. The Appellant is requested to readjudicate the issues in accordance with law and the principles of natural justice. It is made clear that all the contentions raised by the assessee shall be duly considered and appropriate findings recorded thereon. The appeal is allowed in so for as the demand of service tax and education cesses, order for recovery of interest and imposition of penalties for the period prior to 18/04/2006 are concerned. The appeal is allowed by remand to the adjudicating authority for de novo adjudication and decision on similar issues for the period from 18/04/2006. The stay petition also stands disposed of.
 
Decision:-Appeal disposed off. 
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