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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/CASE LAW/2016-17/3059

Whether there is a contradiction in Tribunal’s order when demand is set aside and matter is remanded back?
Case:- DELOITTE HASKINS & SELLS Versus COMMISSIONER OF SERVICE TAX, MUMBAI
Citation:- 2015 (40) S.T.R. 1095 (Tri. - Mumbai)
Issue:- Whether there is a contradiction in Tribunal’s order when demand is set aside and matter is  remanded back?
Brief Facts:- This ROM application is filed by Revenue on two grounds namely :
(i)         There is an apparent error in the Tribunal Order [2015 (38)S.T.R.1220 (Tri.-Mumbai)] to the effect that on the one hand CESTAT has set aside the demand of Rs. 31,25,737/- and Rs. 5,65,600/- and allowed the Cenvat credit and on the other hand CESTAT has remanded the matter to the adjudicating authority. Thus, there is a contradiction in the CESTAT on findings and
(ii)        For verification in terms of Tribunal’s Order, the respondent submitted certificates from major service providers namely M/s. Patmans & G. Hospitality Pvt. Ltd., M/s. Deloitte Consulting India Ltd., and M/s. Deloitte & Touch Assurance & Enterprise Risk Service India Pvt. Ltd. The certificates which have been submitted now by the respondent for verification were not presented by them before the adjudicating authority and not discussed in the Orders-in-Original as well.
Another certificate was issued by M/s. Blue Dart after 9/10 years of the issue of the invoices. In the 5th Certificate date of issue of certificate is not mentioned. Hence, the verification does not lead to the conclusion that the services were used in the Mafatlal House.
Reasoning of Judement:- TheTribunal has carefully considered the submissions of the both parties.
As regards the first issue they find that their Order is very clear. The order allows the Cenvat Credit in principle. It was remanded only to be verified by the adjudicating authority that the input services in respect of which credit was availed were actually received by them and utilized by them. They find no contradiction in our Order.
As regards the Cenvat credit availed on the basis of certificates of service providers, the appellant has shown the letter submitted in reply to the show cause notice. It clearly indicates that the letters obtained from the service providers were submitted under the said letter. Further this letter is shown received by Inspector of Central Excise (Adjudication), Thane-I, Commissionerate. Therefore it appears that the Commissioner has filed this ROM without caring to see his own records. Reasons such as date of issue of certificate not being mentioned cannot be a reason to deny the substantial benefit. It was for the authorities to verify whether the services were received and actually utilized.
They fail to appreciate the grounds on which ROM is filed when the matter was simply remanded for verifying the actual use of input services certificates having been produced earlier as mentioned above, there is no ground to deny the Cenvat credit which was sought to be availed on the basis of these certificates.
In view of the above, the ROM application is rejected.
Decision:-Revenue’s ROM application rejected
 
Comments:- The essence of the case is that the revenue filed ROM application before the Tribunal on the ground that the Tribunal has allowed the Cenvat credit to the assessee and remand back the case to adjudicating authority and the second matter is that the assessee has produce some certificate in respect of cenvat credit which were not produce before the adjudicating authority and also not discussed in Order in original.
The Tribunal has decided the case in favor of assessee and held thatthe there was no contradiction in the order because case was remanded back only to verify that the input services in respect of which credit was availed were actually received by the assessee. In the second point the Tribunal finds that the Letter has been produce by the assessee to the Inspector of the Department wherein all the details of certificates are available. Hence, the decision in favour of assessee is the correct decision.
 
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