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 Law/2012-13/2042

Whether service tax demand from service receiver sustainable when tax paid by service provider?

Case:- IN RE: MENON PISTONS LTD.

Citation:- 2010 (18) S.T.R. 803 (Commr.  Appl.)

Brief facts:-This is an appeal received from M/s. Menon Pistons Ltd., Kolhapur (hereinafter referred as the appellant) against Order-In-Original No. KOP-I/STC/ADJ/15/2008-09, dated 27-2-2009. The brief issue involved in the appeal is that the appellant, who is registered for payment of Service tax on transportation of goods by road, in terms of Notification No. 35/2004-S.T., dated 3-12-2004, availed services from M/s. Gati Ltd., M/s. Speedage Transports M/s. NECC Logistics Ltd., all three registered under ‘Courier Agency service’, M/s. Rahul Cargo, registered under ‘Cargo Handling Service’ and M/s. Ghatge Patil Transports Ltd., registered under ‘Goods Transport Agency’; that the SCN dated 20-6-2007 was issued to the appellant alleging that the appellant availed Goods Transport Agency (GTA in short) services from the above five service providers, but failed to discharge the Service tax in terms of above notification and accordingly, it was directed to show cause as to why an amount of Rs. 93,860/- and Education cess of Rs. 1,877/- should not be recovered under Section 73 of the Finance Act, 1994 (hereinafter referred as the Act) along with interest under Section 75 of the Act and penalty should not be imposed under Sections 76, 78 of the Act; that on adjudication, the demand raised in the SCN-cum-Demand Notice was confirmed along with interest, in addition to imposing equal penalty under Section 78 of the Act. Being aggrieved by the above order, the appellant has come up with the present appeal along with stay petition. That in this case, the dispute is of technical nature, in as much as the Department is contending that the Service tax would have been paid by the appellant instead of service providers and hence holding the appellant guilty of suppression of facts with malafide intention is unjust.
 
Appellant’s Contention:-The appellant submitted that that the Assistant Commissioner has refused to accept the appellant’s plea that the service providers have charged the Service tax from the appellant and hence there is no need to again recover the Service tax from the appellant. He further explained that it is not correct to ask the service receiver ( the appellant ) to pay the Service tax again to the Government and the appellant relies on the decision in the case of Invincible Security Services v. CCE - 2009 (13)S.T.R.185and Navyug Alloys Pvt. Ltd. v. CCE - 2009 (13)S.T.R.421 (T) = 2008 (89) RLT 776. He also added  that the service providers (except M/s. Ghatge Patil Transports ) have classified the their services as ‘courier agency service’ or ‘cargo handling service’ and they have also charged the Service tax under ‘courier agency service’/‘cargo handling service’ and paid the Service tax to the Government and the department has accepted the same and therefore, it is well settled that the classification of inputs/input services cannot be changed at the receiver’s end the appellant’s end) as laid down by the Apex Court in the case of Sarvesh Refractories (P) Ltd. v. CCE - 2007 (218)E.L.T.488 (S.C.)and Tribunal’s decision in the case of Indusil Industries Ltd. v. CCE - 2008 (222)E.L.T.461. He stated that M/s. Ghatge Patil Transports Ltd. is also falling in Kolhapur Division and the practice of charging Service tax on freight recovered from the customers and paying the same to the Government is well known to the Department, which is not challenged by the department and hence, again directing the appellant to pay Service tax is not correct. Further he also stated that as contended by the appellant, when the Department has accepted the classification and the payment is made thereon, it is not open to the department again to re-classify the same at the receiver’s end. In the instant case, that except M/s. Ghatge Patil Transports Ltd., other service providers are registered either under ‘courier agency service’ or ‘cargo handling service’ which has been accepted by the Department and allowed those service providers to discharge Service tax under those service categories. Hence it is not open to the Department to change the classification as held by the Apex Court in the case of M/s. Sarvesh Refractors (P) Ltd. v. CCE & C supra. In respect of M/s. Ghatge Patil Transports Ltd., as rightly contended by the appellant, the practice of collecting the Service tax from the receiver and paying the same into the Government Account is known to the department and hence again asking the appellant to pay Service tax in terms of Notification No. 35/2004 is also not correct. Hence, on all the above grounds, directing the appellant to pay Service tax once again which is already discharged by the service providers, is not sustainable. Once the appellant is not liable to pay Service tax, the question of paying interest and penalty also do not arise.
 
Respondent’s Contention:-The respondent reiterated the findings of the lower authorities.

Reasoning of judgment:- Having gone through the case records including record of PH and citations relied upon by the appellant/advocate, carefully. After dispensing with pre-deposit, the Commissioner took the main appeal for final decision. The sole issue to be decided in the present appeal is that whether the appellant is liable to pay Service tax in terms of Rule 2(i)(v) of the Service Tax Rules 1994 towards services received from M/s. Gati Ltd., M/s. NECC Logistics Ltd., M/s. Speedage Transport - all Courier Agencies, M/s. Rahul Cargo - Cargo Handling Service and M/s. Ghatge Patil Transports - GTA service.  As contended by the Commissioner, there is no dispute with regard to the payment of Service tax paid by the service providers. In fact, the Service tax was collected in their bills from the appellant only. In short, there is only a ‘technical error’ i.e. instead of Service tax being paid by the appellant, the same was paid by the service providers. In other words, the Service tax being the indirect tax, the same has to be collected from the appellant only (consumer). Accordingly, again demanding the same Service tax from the appellant would amount to ‘double taxation’. The decision of Hon’ble Delhi High Court in the case of Invincible Security Services v. CCE, Noida and the Tribunal’s decision in Navyug Alloys Pvt. Ltd. v. CCE & C, Vadodara supra, also squarely cover the issue on hand. The Hon’ble Tribunal Ahmedabad in the case of Navyug Alloys Pvt. Ltd. v. CCE & C, Vadodara has held that “once tax already paid on the services, it was not open to the Department to confirm the same against the appellant, in respect of the same services”. Further it has been held that “the Revenue has not refunded the Service tax paid by the transporter to them”. As stated above, the above case squarely covers the issue on hand. In view of the facts and circumstances, The Commissioner Appeals allow the appeal by setting aside the impugned OIO passed by the Assistant Commissioner, Central Excise, Kolhapur Division.
 
Decision:- Appeal Allowed.

Comment:-  The crux of the case is that it is a thumb rule that service tax cannot be demanded twice for the same service. In the present case, although service tax liability was casted on the service recipient by the provisions of law, but as the service tax was paid by the provider of service which was ultimately collected by the service recipient, the revenue cannot again demand service tax from the service recipient. The payment of service tax by service provider when the liability was of service receiver is only a “technical lapse” and so the appeal was allowed.
 

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