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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.  

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PJ/CASE LAW/2014-15/2516

Whether sub-contractor liable if main contractor has paid service tax?

Case:-EAST COAST ENGINEERING COMPANY Vs COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, GUNTUR
 
Citation:-2014-TIOL-2118-CESTAT-BANG
 
Brief facts:-Service Tax of Rs. 30,89,893/- with interest has been demanded with imposition of equal penalty on the appellant on the ground that appellant did not pay service tax on ‘Survey and
Map Making Service' rendered by them.
 
Appellant’s contention:-Learned counsel submitted that it was the claim of the appellant that the main contractor haspaid the entire amount of tax and therefore on the same service and on the same consideration,there was no need for the appellant to pay the tax again. He submits that this submission hasbeen rejected on the ground the amount paid by the main contractor did not tally with theamount paid by the appellants and he submits that this can never tally since the demand ofservice tax is based on receipt of the amount and amounts paid by the main contractor to theappellant and the amounts received by him need not exactly tally with each other and tally occasion wise also. He submits that this aspect has not been taken into account and he alsosubmits that both the appellants and the main contractor are situated in the jurisdiction of thesame range office and the same division and even then the officers have refused to conduct anyverification whatsoever and demand has been confirmed against the appellant. He submits thatthe contract was passed on to the appellant on a back to back basis and therefore the maincontractor had not rendered any service and therefore the procedure followed by them forpayment of the entire tax by the main contractor was sufficient.
 
Respondent’s contention:- The learned AR contend that procedure requires the appellant to pay tax and main contractor to take credit and thereafter discharge service tax liability. If the appellants choosenot to follow the procedure prescribed under the law, nobody can help them.
 
Reasoning of judgment:-The Hon’ble Tribunalfind in agreementwith the submission of the learned AR that procedure requires the appellant to pay tax and main contractor to take credit and thereafter discharge service tax liability. If the appellants choosenot to follow the procedure prescribed under the law, nobody can help them, submits thelearned AR. Nevertheless the fact remains that if an assessee makes a claim that the sameservice and the same transaction has already suffered the tax, levy of tax for the second time onthe same transaction without even verifying the correctness of the claim, in their opinion, may notbe sustainable. For the normal period of limitation, in their opinion, the demand would have beendefinitely sustainable since for demand in the normal period, even if there is a mistake, theamount becomes payable. However in the case of extended period, there has to be suppressionof fact or mis-declaration. In this case if an assessee believed in a bona fide manner that he isnot liable to pay service tax and there are sufficient grounds for such plea and such plea is not ablind belief, he cannot be found fault with if the assessee considers that the tax is non-taxable.This would mean that the assessee has assessed his tax as ‘nil'. In this case since the maincontractor paid the tax and show-cause notice has been issued beyond the normal period oflimitation, they consider that in the absence of any evidence to show that the appellant had anintention to evade tax or suppress the facts, tax could not have been demanded again.Suppression of fact is something which is required to be declared in accordance with statute andnot declared. In a self assessment regime, if an assessee correctly assessed the goods accordingto his own assessment and if there is a valid ground for him to take such a view, extendedperiod may not be invokable. Under these circumstances they consider that appellant has madeout a prima facie case for waiver of pre-deposit. Accordingly the requirement of pre-deposit iswaived and stay against recovery is granted for a period of 180 days from the date of this order.
 
Decision:- Stay application allowed.
 
Comment:- The analogy of the case is that same service and same consideration cannot not be taxed twice. There is no evidence to show that there was any intention to evade tax or suppress the facts. Accordingly, considering the fact that the main contractor had already paid service tax and extended period of limitation was not invokable, the stay application was allowed.
 
Prepared by:- Monika Tak

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