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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 Laws/2012-13/1503

Whether the service tax will be payable for the 'service to be provided', as the demand is for the period prior to 16-6-2005?

 Case:-  Futura Polyester Limited Vs. C.C.E. Chennai-I
 
Citation:-2013 (29) S.T.R. 371 (Tri. - Chennai)
 
Brief facts:- The appellants entered into an agree­ment with M/s. Futura Polymers Ltd., a 100% EOU Division for transfer of tech­nical know-how. As per the agreement, the appellants agreed to transfer techni­cal know-how in future and M/s. Futura Polymers Ltd., were at liberty to avail the advice of the appellants with regard to manufacture of 'Amorphous Polyester resin and solid state polymerisation of modified polyester'. A consideration was fixed in the agreement but M/s. Futura Polymers Ltd., never sought the advice of the appellants and the appellants admittedly have never rendered any service of transfer of technical know-how to M/s. Futura Polymers Ltd. But the appel­lants made a debit entry for the services to be provided in future, in their books of accounts and for creating entry in the books of accounts, the Revenue was of the view that the appellants are liable to service tax under the category of "Con­sulting Engineering Service" as per the agreement entered into between them and their client M/s. Futura Polymers Ltd. Therefore, a show-cause notice was issued and adjudication took place, demand of service tax along with penalties has been confirmed against the appellants. Aggrieved from the said order, the appellants are before us.
 
Appellant’s Contention:-The appellants appeared and submitted that in this case neither service has been provided by them nor any consideration for providing the service have been received by them, therefore, they are not liable to pay service tax. Further, it is submitted that the supply of technical know-how cannot be taxed under the category of "Consulting Engineering Service" as no demand is leviable, therefore, penalties imposed are also not sustainable.
 
Reasoning of Judgment: -The Tribunal heard both the sides and considered that the appellants have never pro­vided any service and no consideration for the service have been received during the period. The service tax was not payable for the 'service to be provided', as the demand is for the period prior to 16-6-2005. Therefore, as held by the Tribunal in the case of Commissioner of Central Excise, Indore v. Mastermind Classes Pvt. Ltd. reported in 2010 (18) S.T.R. 53 (Tri.-Del.) the demand of tax for an earlier period prior to levy of service tax is not sustainable. Merely making entry in the books of accounts does not render that the appellants have provided any service. It has been held by the Hon'ble Apex Court in the case of Association of Leasing & Finan­cial Service Companies v. Union of India reported on 2010 (20) S.T.R. 417 (S.C.) that when no service has been rendered, service tax cannot be levied. As held by the Apex Court in the case of Union of India v. Martin Lottery Agencies Ltd. reported in 2009 (14) S.T.R. 593 (SC). The Notification No. 19/2008 cannot be said to have retrospective effect, wherein it was explained that "deems creation of book en­try" as receipt of consideration is not retrospective in nature. Further, in the case of Commissioner v. Molex (India) Ltd. reported in 2011 (24) S.T.R. J50 (Kar.), the Hon'ble High Court has held that supply of technical know-how cannot be taxed under "Consulting Engineering Service". In view of these observations, we do not find any merit in the impugned orders, as neither there is service provided nor any consideration have been received. Moreover, suppry of technical know- how cannot be taxed under "Consulting Engineering Service".
 
Decision:-The im­pugned orders are set side, and appeals are allowed with consequential relief, if any.
 
Comment:-  The provision of service tax on “services to be provided” was introduced on 16.5.2006 and it cannot be applied for the earlier period. For the earlier period the service tax was to be levied if the services are rendered or the payment is received in advance. Hence the tribunal has rightly held the case in favour of assessee.
Secondly, the issue was of classification of service. The impugned service will not fall under consultancy engineer service. Many demands of the department was dropped on demand under wrong classification of service. Hence the negative list was introduced. But again the classification of service is re-introduced. Although it is said that it is only for the purpose of deposit of service tax but the demand has to be issued under particular classification. Hence again the purpose of negative list is lost.

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