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Corporate News *  Delhi High Court - Issue of fake ITC - Court declined to entertain the writ petition against the GST demand, directing the petitioner to pursue the statutory appellate remedy *  Patna High Court - Availability of an effective statutory remedy is a strong ground for High Court to decline interference in writ proceedings, unless exceptional circumstances are established. *  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. 
Subject News *  Delhi High Court - An Advocate cannot claim client privilege as an absolute bar to a GST investigation where there is prima facie material suggesting his own involvement in the affairs under investigation. *  Madras High Court - SEZ unit is eligible to claim refund of unutilised ITC; such entitlement cannot be restricted merely because Rule 89 specifically refers to a supplier to an SEZ. *  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.  

Comments

(S SAMPATH) Posted On: 11 Feb, 2014

Facts of the Case: Our company is sending various equipments to Overseas OEMs/OEM Authorized service centers. These equipments were overhauled & we are paying charges towards overhaul charges, spares consumed & testing charges. The machines after overhauls, return back to India . Custom duty is being paid by us on total amount paid to vendor i.e overhauling charges, spares consumed & other Charges . Further, we are also paying service tax on overhaul charges under reverse mechanism & cenvat credit is being claimed on service tax paid on overhaul charges. Query : Can overhaul service charges paid to foreign vendors for above services at their premises( located outside taxable territory) be qualified as services provided in the taxable territory ? . If not , payment of service tax under Reverse Mechanism is applicable to our company ?. Relevant provisions of Service Tax Act & Rules are given below: Section 66 B: Charge of services tax on and after finance Act 2012 There shall be levied a tax at the rate of 12% on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. Section 66 C: Determination of place of provision of services: (1) The central Govt may, having regard to the nature and description of various services, by rules made in this regard, determine the place where such services are provided or deemed to have been provided or agreed to be provided or deemed to have been agreed to be provided. (2) Any Rule made under sub section (1) shall not be invalid merely on the ground that either the service provider or the service receiver or both are located at a place being outside the taxable territory. Place of Provision of Services Rules, 2012 Clause 4 : Place of provision of performance based services : The place of provision of services shall be the location where the services are actually performed, namely:- (a) Services provided in the respect of goods that are required to be made physically available by the recipient of the services to the provider of services, or to a person acting on behalf of the provider of service, in order to provide the service: Provided that when such services are provided from a remote location by way of electronic means the place of provision shall be the location where goods are situated at the time of provision of services ; Provided further that this sub-rule is not apply in the case of a service provided in respect of goods that are temporally imported ….. Section 68 : Payment of service tax (1) Every person providing taxable services to any person shall pay service tax at the rate specified in section 66 in such manner and within such period as may be specified. (2) Notwithstanding anything contained in sub-section(1) , in respect of such taxable services as may be notified by Central Govt in the Official Gazzatte, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rates specified in section 66 and all the provision of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service. Provided that the Central Govt may notify the services and the extent of services tax which shall be payable by such person and the provision of this chapter shall apply to such person to the extent so specified and the remaining part of the service tax shall be paid by the service provider. Reverse Charges Notification Under Section 68 (2) : Para 1 ( B) The taxable services provided or agreed to be provided by any person which is located in a non-taxable territory and received by any person located in the taxable territory ; The extent of service tax payable thereon by the person who provides the services and the person who receives the services for the taxable services specified in (1) shall be as specified in the following table , namely :- Sl no Description of services Percentage of service tax payable by the person providing services Percentage of service tax payable by the person receiving the service 10 In respect of any taxable services provided or agreed to be provided by any person who is located in a non taxable territory and received by any person located in the taxable territory Nil 100%

As per Rule 4 of POPS Rules, Place of Provision of performance based services is where the goods are physically made available to service provider or to person acting on behalf of provider of services. In the present case, services are related to repair of equipments that are necessarily required to be sent to overseas Authorised Service Stations for repair purpose. Hence, the transaction is covered by Rule 4 of POPS Rules as the essential characteristic of a service to be covered under this rule is that the goods temporarily come into the physical possession or control of the service provider, and without this happening, the service cannot be rendered. Since, overhaul service charges paid to foreign vendors for above services at their premises located outside taxable territory are covered under this Rule, hence the place of provision shall be where performance takes place. Since the place of provision is a non taxable territory service tax shall not be applicable on the same. Consequently, there is no liability under reverse charge mechanism on overhaul charges paid to overseas Authorised Service Station
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PRADEEP JAIN, F.C.A.

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