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 LAW/2015-16/2851

Whether service tax payable for period prior to introduction of taxable service?

Case:- R.M. DHARIWAL (HUF) VERSUSCOMMISSIONER OF CENTRAL EXCISE, PUNE-III

Citation:-2015 (39) S.T.R. 635 (Tri. - Mumbai)

Brief Facts:-The relevant facts that arise for consideration are that the appellant herein was charged for not discharging the service tax liability for an amount received by them as royalty from M/s. Dhariwal Industries Ltd. for the use of trade name/brand name on the products which were manufactured and cleared consequent to an agreement dated 20-4-2004. Revenue authorities were of the view that as per the terms and conditions of the above-mentioned agreement, M/s. Dhariwal Industries Ltd. is required to pay royalty to the appellant at a fixed rate of 3% of Net sales on the basis of audited annual reports. On scrutiny of the audited balance sheet for the year ending 31-3-2005, it was noticed that the appellant had issued two invoices for the receipt of the royalty for the period 1-4-2004 to 10-9-2004 and did not discharge the service tax liability. Show cause notice was issued which was adjudicated and demand of the service tax liability was confirmed along with interest and penalties were imposed. Aggrieved by such an order, appellant preferred an appeal before the first appellate authority. The first appellate authority after following due process of law did not agree with the contention raised by the appellant and rejected the appeal.
 
Appellant contentions:- The ld. Counsel appearing on behalf of the appellant would take through the entire case records. He would submit that the appellant had received royalty from M/s. Dhariwal Industries Ltd. It is his submissions that the question involved in this case is whether the service tax liability would be required to be discharged for the period 1-4-2004 to 10-9-2004 under the category of “Intellectual Property Services”. He would submit that the said services were brought into service tax from 10-9-2004. He would submit that both the lower authorities have incorrectly appreciated the facts, as the service tax liability arises on the appellant even for the royalty amounts, which were paid for the period in question. He would submit that the liability would not arise at least up to 10-9-2004, as the service tax was first time brought into statute under the category of Intellectual Property Services and the benefit of Notification No. 18/2004-S.T., dated 10-9-2004 cannot be called is for help by the department. He would draw our attention to the agreement entered by the appellant with M/s. Dhariwal Industries Ltd. and submit that the royalty which has been paid for the period in question i.e. 1-4-2004 to 10-9-2004 though settled in 2004-2005 and hence only tax net.
 
Respondent contentions:-Ld. AR on the other hand, would draw our attention to the Notification No. 18/2004-S.T. and submit that the said notification specifically states service tax liability would not arise on the appellant to that portion of the value of taxable service which is received by the service provider from the customer prior to 10th day of September, 2004. He would then submit that the balance sheet for the year 2004-2005 was finalized on 8-9-2005 and appellant could be ineligible for the exemption granted by Notification No. 18/2004-S.T. He would reiterate the findings of the lower authorities.
 
Reasoning of Judgment:- We have considered the submissions made by both sides and perused the records.
The issue to be decided in this case is whether the amounts received by the appellant for the period 1-4-2004 to 10-9-2004 would be covered under the service tax net under the category of “Intellectual Property Services” or otherwise. It is undisputed that the amount which has been received by the appellant during material period in question was as royalty for the use of the brand which is registered in the name of the appellant assessee.
We peruse the agreement entered by the appellant with M/s. Dhariwal Industries Ltd. The said agreement assigned brand/trade name to M/s. Dhariwal Industries Ltd. for a period of 4 years i.e. 20-4-2004 to 31-3-2008, specific articles of the said agreement, which need to be read is the consideration to be paid by M/s. Dhariwal Industries Ltd. to the appellant. We reproduce the same.
“The considerations for the use of trade-name “RMD”, the Second Party shall pay Royalty from 20th April, 2004 to 31st March, 2008, i.e. for a further period of 4 years, and shall be paid at Percentages of the Net Total Sales every year as stated hereunder :

 
For the year
Per cent Net Sales
20-4-2004 to 31-3-2005 3% of Net Sales
1-4-2005 to 31-3-2006 3% of Net Sales
1-4-2006 to 31-3-2007 3% of Net Sales
1-4-2007 to 31-3-2008 3% of Net Sales

The Net Sales shall include all indigenous Sales, Exports Sales [including Sales to RMD (HUF)].
(3)DIL shall render to RMD (HUF) the audited annual reports following the close of each financial year, on the basis of which royalties are payable under this agreement. DIL shall pay to RMD (HUF) the amount of Royalty payable within 3 months from audited annual reports.”
It can be noticed from the above reproduced articles of the agreement, the royalty which are paid from 20-4-2004 to 10-9-2004 were done so after calculating the correct sales turnover on finalization of the balance sheet on 8-9-2005. It is undisputed that during the period, no service tax was leviable on Intellectual Property Services, as the said services came into the statute w.e.f. 10-9-2004.
In Tribunal’s considered view, both the lower authorities have erred in coming to a conclusion that appellant is liable to pay the service tax. In Tribunal’s view, if amount which is paid for as royalty and remains undisputed, the said amount of royalty cannot be covered under the Intellectual Property Service which came into tax net from 10-9-2004. It is seen from the records that the lower authorities have sought to recover the service tax liability from the appellant by invoking the provisional collection of tax to hold that service tax liability arises. In Tribunal’s view, this is incorrect, at least, in respect of service tax liability, as in the case of service tax liability on any new services; it comes into effect only from the date which is notified by the Central Government by notification. In the case in hand, it is undisputed that the notification which was issued for taxing an amount paid as royalty under Intellectual Property Service was w.e.f. 10-9-2004. If that be so, service tax liability would not arise on the amount received by the appellant during the period 20-4-2004 to 10-9-2004.
 
Decision:-  Appeal allowed.   

Comment:-The analogy of the case is that as the service tax under the category of ‘Intellectual Property Rights Service’ came effect from 10-09-2004, no service tax could be demanded on the provision of said service prior to 10.09.2004. In the case of service tax liability on anynew services,it comes into effect only from the date which is notified by theCentral Government bynotification and not prior to date when notification does not exist.

Prepared By:- Anash Kachaliya
 
 
 

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