C.I.T. Vs. Madan Teatres Ltd. - Calcutta High Court, GA No. 684 of 2013, ITAT No. 62 of 2013- Date : 14th May, 2013 The assessee sold the property at a sum of Rs.2,51,50,000/- For the purpose of stamp duty, however, the value was estimated at a sum of Rs.5, 19,77,000/- and on that basis […]
PFA
Merely because the Assessing Officer invoked section 50C(2) and adopted guideline value to be the actual sale consideration and made addition in the assessee's income automatically become a case attracting penalty under section 271(1 )(c) of the Act.
PFA
In view of judgment in L.H. Sugar case, since recipient of GTA services were liable to file return under Section 71Aof the Finance Act and Section 73 thereof, as amended by the Finance Act, 2003, did not refer to Section 71A of the Finance Act, hence, the Assessee was not covered by Section 73 of the Finance Act and the SCN is bad;
If Demand is due to retrospective amendment, no malafide attributable to Assessee, hence extended period cannot be invoked
Commissioner of Central Excise, Raipur Vs. Lloyd Tar Products [(2014) 52 taxmann.com 433 (New Delhi – CESTAT)]
Lloyd Tar Products (the Assessee) was engaged in manufacture of different kind of excisable goods. During the period from November 16, 1997 to June 1, 1998, the Assessee received the services of Goods transport operator (GTA) but did not pay Service tax under Reverse Charge as was required under erstwhile Rule 2(i)(d)(xvi) and (xvii) of the Service Tax Rules, 1994 (the Service Tax Rules) which was later struck down by the Hon'ble Supreme Court in the case of Laghu Udyog Bharati Vs. Union of India [1999 (112) ELT 365].
Thereafter, the law was amended retrospectively vide the Finance Act, 2000 & the Finance Act, 2003 and the recipient of GTA services were made liable to pay the tax from the beginning. In the light of the above amendment, Show Cause Notice was issued to the Assessee in November, 2002 which culminated into an Order passed by the Adjudicating Authority confirming the demand but dropping the penalties on observing that no suppression can be attributed to the Assessee.
The Assessee challenged the said Order before the Commissioner (Appeals), wherein the Commissioner (Appeals) relying upon the decision in the case of L. H. Sugar factories Ltd. Vs. CCE [(2007) 8 STT 295 (New Delhi – Cestat)] (L.H. Sugar case) held that even though a person receiving taxable services of GTA are deemed to pay Service tax under Section 69 of the Finance Act, 1994 (the Finance Act), but liability to file return is cast on them only under Section 71A of the Finance Act and not under Section 70 thereof. Accordingly, they are not covered under Section 73 of the Finance Act and hence, not liable to pay Service tax.
Thereafter, on appeal being filed before the Hon'ble Tribunal by the Revenue, the same was rejected. Being aggrieved, the Revenue filed an appeal before the Hon'ble High Court of Chhattisgarh where the Hon'ble High Court directed the Tribunal to consider the law declared by the Hon'ble Supreme Court in the case of Gujarat Ambuja Cements Ltd. Vs. Union of India [(2005) 1 STT 41] (Ambuja case). Therefore, the matter was listed again before the Hon'ble CESTAT, Delhi.
The Hon'ble CESTAT, Delhi after observing that the matter in the present case differs from the Ambuja case, held that:
- In view of judgment in L.H. Sugar case, since recipient of GTA services were liable to file return under Section 71Aof the Finance Act and Section 73 thereof, as amended by the Finance Act, 2003, did not refer to Section 71A of the Finance Act, hence, the Assessee was not covered by Section 73 of the Finance Act and the SCN is bad;
- Even otherwise, since there was no suppression on part of the Assessee and the Adjudicating Authority had itself waived penalties on that count, extended period was not invocable;
- When the SCN was issued after the retrospective amendment, no malafide can be attributed to the Assessee and the SCN is barred by limitation.
The Hon'ble CESTAT, Bangalore relying on the case of Gujarat State Fertilizers & Chemicals Ltd. Vs. Commissioner of Central Excise, Vadodara [2006 (205) ELT 458 (Tri.-Mumbai)], held that the amount paid subsequent to the Order of the Adjudication Authority cannot be hit by the doctrine of unjust enrichment, and as such, the Appellant is eligible for refund of the amount.
Amount paid subsequent to Adjudication Order cannot be hit by Doctrine of Unjust Enrichment
Raasi Refractories Ltd. Vs. Commissioner of Central Excise, Customs And Service Tax Hyderabad-III [2015 (1) TMI 283 – CESTAT BANGALORE]
Raasi Refractories Ltd. (the Appellant) provided Management services to its customer M/s Visakhapatnam Steel Plant (client) during the period 2003-04 to 2005-06. The Adjudicating Authority confirmed demand of Service tax under the taxable category of 'Business Auxiliary Service'. The adjudged dues were paid by the Appellant on January 28, 2009.
However, being aggrieved by the Order of the Adjudicating Authority, the Appellant filed an appeal before the Commissioner (Appeals) contending that the activities undertaken at client's premises were not falling under the purview of 'Business Auxiliary Service'. The Commissioner (Appeals) set aside the Order of the Adjudication Authority. The said Order of the Commissioner (Appeals) was accepted by the Committee of Commissioners on June 19, 2009, and accordingly, no appeal was preferred by the Revenue.
Pursuant to the Order of the Commissioner (Appeals), the Appellant filed refund claim of the amount so deposited, which was adjudicated by the Deputy Commissioner by sanctioning the refund amount and adjusting the same against the tax arrears dues from the Appellant to the Government exchequer.
Subsequently, in exercise of the powers conferred under Section 84 of the Finance Act, 1994 (the Finance Act), the Commissioner of Central Excise and Service tax sought to revise the Order passed by the Deputy Commissioner on the ground that while sanctioning refund claim, the said Original Authority did not examine the unjust enrichment aspect.
Accordingly, Show Cause Notice was issued and adjudicated by the Commissioner denying refund to the Appellant. Being aggrieved, the Appellant preferred an appeal before the Hon'ble CESTAT, Bangalore.
The Hon'ble CESTAT, Bangalore relying on the case of Gujarat State Fertilizers & Chemicals Ltd. Vs. Commissioner of Central Excise, Vadodara [2006 (205) ELT 458 (Tri.-Mumbai)], held that the amount paid subsequent to the Order of the Adjudication Authority cannot be hit by the doctrine of unjust enrichment, and as such, the Appellant is eligible for refund of the amount.
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