VAT AND SERVICE TAX CASES (VST)

ONLINE EDITION

VOL. 3 : ISSUE DATED 29-8-2014

HIGH COURT


Burden of proof--See Works contract (All) . . . 235

Commissioner--See Exemption (All) . . . 216

----See Input-tax credit (All) . . . 227

Deduction of tax at source--Trade tax--Works contract--Refund--Burden of proof--Unjust enrichment--1987-88 to 1998-99--Assessee doing job-works of fixing PVC flooring--Deduction of tax at source by contractee on basis of job-works--Assessee applying for refund during assessment proceedings as he was not exigible to tax--Stand of assessee accepted in assessment proceedings after verifying books of account and assessment order passed with direction to refund after verifying TDS certificate--Certain amount refunded in certain assessment years--Application for refund of balance amount--Notice issued and orders passed disallowing assessee's claim for refund on ground of unjust enrichment--Not justified--Concept of unjust enrichment not applicable in assessee's case as no amount realised by assessee from any person by way of tax on sale or production of goods--Also provision enforcing doctrine of unjust enrichment introduced prospectively only from December 18, 2002--Assessment order required verification whether deductee deposited money in Government treasury--Placing burden of proof on assessee not permissible after assessment proceedings--Orders disallowing assessee's claim for refund quashed--Writ of mandamus directing respondents to refund amount with interest--U. P. Trade Tax Act (15 of 1948), ss. 8D(4), (5), 29, 29A(2), (4)--U. P. Trade Tax Rules, 1948, r. 90.--Dalmiya Brothers v. Commissioner of Trade Tax (All) . . . 235

Eligibility certificate--See Exemption (All) . . . 216

Entries in Schedule--Sales tax--"Preserved, processed, dried, dehydrated fruit, vegetable, fish and meat when sold in sealed containers"--"Preserved food articles"--Similar entries--Pickles can fall under both--Goods to be treated as falling under entry beneficial to dealer.--Pachranga Syndicate Private Ltd. v. State of Haryana (P&H) . . . 221

Escaped turnover--Value added tax--Input-tax credit--Escaped assessment--Commissioner--Jurisdiction--Additional Commissioner granting permission for reason that input-tax credit not available as sale to units established in special economic zone--Orders disallowing claim of input-tax credit by assessing authority and first and second appellate authorities passed without considering reason given by Commissioner--A case of escapement of turnover--That order by second appellate authority not challenged either by Department or assessee and that it attained finality not a bar--Exercise of jurisdiction under section 29(7) by Additional Commissioner valid--Uttar Pradesh Value Added Tax Act (5 of 2008), ss. 13(7), 29(7).--Genus Paper Products Ltd. v. State of U. P. (All) . . . 227

Exemption--Trade tax--Commissioner--High Court--Res judicata--Rejection of application for exemption under section 4A and application for review thereof--Writ petition--Orders quashed with direction that assessee entitled to eligibility certificate effective from March 21, 1990--Eligibility certificate granted for five years pursuant to order by court--Deemed to be one on application by assessee--Modified thereafter by Commissioner confining period of eligibility to May 7, 1992 on ground business discontinued for continuous stretch of six months--Within his authority--Issue whether assessee discontinued business not before court--Period of validity of certificate not adjudicated by court--Principles of constructive res judicata not applicable--Authorities not barred from amending certificate for discontinuance--No distinction made between temporary or permanent discontinuance of business by notification--Reason for discontinuance of business immaterial for purpose of notification and grant/amend certificate--Commissioner not erroneous in limiting eligibility period--U. P. Trade Tax Act (15 of 1948), s. 4A--Notification dated December 26, 1985.--Sagar Jute Udyog v. Commissioner of Trade Tax (All) . . . 216

High Court--See Exemption (All) . . . 216

Input-tax credit--Value added tax--Escaped assessment--Commissioner--Jurisdiction--Additional Commissioner granting permission for reason that input-tax credit not available as sale to units established in special economic zone--Orders disallowing claim of input-tax credit by assessing authority and first and second appellate authorities passed without considering reason given by Commissioner--A case of escapement of turnover--That order by second appellate authority not challenged either by Department or assessee and that it attained finality not a bar--Exercise of jurisdiction under section 29(7) by Additional Commissioner valid--Uttar Pradesh Value Added Tax Act (5 of 2008), ss. 13(7), 29(7).--Genus Paper Products Ltd. v. State of U. P. (All) . . . 227

----Value added tax--Sale of craft paper and craft paper liner to export units and to dealers in special economic zone--Not covered by section 13(1)(iii)--No input-tax credit available on raw material under provision providing for exception--Uttar Pradesh Value Added Tax Act (5 of 2008), s. 13(1)(iii), (7).--Genus Paper Products Ltd. v. State of U. P. (All) . . . 227

Interpretation--See Entries in Schedule (P&H) . . . 221

Interpretation of taxing statutes--See Entries in Schedule (P&H) . . . 221

Jurisdiction--See Input-tax credit (All) . . . 227

Refund--Trade tax--Tax deduction at source--Works contract--Burden of proof--Unjust enrichment--1987-88 to 1998-99--Assessee doing job-works of fixing PVC flooring--Deduction of tax at source by contractee on basis of job-works--Assessee applying for refund during assessment proceedings as he was not exigible to tax--Stand of assessee accepted in assessment proceedings after verifying books of account and assessment order passed with direction to refund after verifying TDS certificate--Certain amount refunded in certain assessment years--Application for refund of balance amount--Notice issued and orders passed disallowing assessee's claim for refund on ground of unjust enrichment--Not justified--Concept of unjust enrichment not applicable in assessee's case as no amount realised by assessee from any person by way of tax on sale or production of goods--Also provision enforcing doctrine of unjust enrichment introduced prospectively only from December 18, 2002--Assessment order required verification whether deductee deposited money in Government treasury--Placing burden of proof on assessee not permissible after assessment proceedings--Orders disallowing assessee's claim for refund quashed--Writ of mandamus directing respondents to refund amount with interest--U. P. Trade Tax Act (15 of 1948), ss. 8D(4), (5), 29, 29A(2), (4)--U. P. Trade Tax Rules, 1948, r. 90.--Dalmiya Brothers v. Commissioner of Trade Tax (All) . . . 235

Res judicata--Trade tax--Exemption--Commissioner--High Court--Rejection of application for exemption under section 4A and application for review thereof--Writ petition--Orders quashed with direction that assessee entitled to eligibility certificate effective from March 21, 1990--Eligibility certificate granted for five years pursuant to order by court--Deemed to be one on application by assessee--Modified thereafter by Commissioner confining period of eligibility to May 7, 1992 on ground business discontinued for continuous stretch of six months--Within his authority--Issue whether assessee discontinued business not before court--Period of validity of certificate not adjudicated by court--Principles of constructive res judicata not applicable--Authorities not barred from amending certificate for discontinuance--No distinction made between temporary or permanent discontinuance of business by notification--Reason for discontinuance of business immaterial for purpose of notification and grant/amend certificate--Commissioner not erroneous in limiting eligibility period--U. P. Trade Tax Act (15 of 1948), s. 4A--Notification dated December 26, 1985.--Sagar Jute Udyog v. Commissioner of Trade Tax (All) . . . 216

Unjust enrichment--See Works contract (All) . . . 235

Value added tax--Input-tax credit--Sale of craft paper and craft paper liner to export units and to dealers in special economic zone--Not covered by section 13(1)(iii)--No input-tax credit available on raw material under provision providing for exception--Uttar Pradesh Value Added Tax Act (5 of 2008), s. 13(1)(iii), (7).--Genus Paper Products Ltd. v. State of U. P. (All) . . . 227

----See also Input-tax credit (All) . . . 227

Works contract--Trade tax--Tax deduction at source--Refund--Burden of proof--Unjust enrichment--1987-88 to 1998-99--Assessee doing job-works of fixing PVC flooring--Deduction of tax at source by contractee on basis of job-works--Assessee applying for refund during assessment proceedings as he was not exigible to tax--Stand of assessee accepted in assessment proceedings after verifying books of account and assessment order passed with direction to refund after verifying TDS certificate--Certain amount refunded in certain assessment years--Application for refund of balance amount--Notice issued and orders passed disallowing assessee's claim for refund on ground of unjust enrichment--Not justified--Concept of unjust enrichment not applicable in assessee's case as no amount realised by assessee from any person by way of tax on sale or production of goods--Also provision enforcing doctrine of unjust enrichment introduced prospectively only from December 18, 2002--Assessment order required verification whether deductee deposited money in Government treasury--Placing burden of proof on assessee not permissible after assessment proceedings--Orders disallowing assessee's claim for refund quashed--Writ of mandamus directing respondents to refund amount with interest--U. P. Trade Tax Act (15 of 1948), ss. 8D(4), (5), 29, 29A(2), (4)--U. P. Trade Tax Rules, 1948, r. 90.--Dalmiya Brothers v. Commissioner of Trade Tax (All) . . . 235

Writs under Constitution--See Exemption (All) . . . 216


PRINT EDITION

VOLUME 73 : PART 3 : ISSUE DATED 29-8-2014


HIGH COURTS


Advertisement tax--Liability to tax--Assessment--Assessment based on information collected from internet--Assessee not put on notice that information to be used in assessment--Assessment set aside--Matter remanded for assessment afresh after putting assessee on notice and giving it opportunity to explain--Madhya Pradesh Vilasita, Manoranjan, Amod Evam Vigyapan Kar Adhiniyam (11 of 2011).--Union of India v. State of Madhya Pradesh (MP) . . . 272

----Liability to tax--Assessment--Notice--Must ordinarily be served 30 days before date of hearing--Notices served five days and nine days before hearing--Not proper--Madhya Pradesh Value Added Tax Rules, 2006, r. 31.--Union of India v. State of Madhya Pradesh (MP) . . . 272

Appeal--Service tax--Appeal to Appellate Tribunal--Pre-deposit--Waiver of pre-deposit--Government company--Appellate Tribunal granting stay subject to deposit of entire demand with interest--On facts stay granted subject to assessee depositing half amount indicated by Tribunal within specified period--Central Excise Act (1 of 1944), s. 35F--Finance Act (32 of 1994).--BSNL v. Commissioner of Central Excise (All) . . . 316

----Service tax--Pre-deposit--Order by Tribunal directing appellant to deposit Rs. 72 lakhs for entertainment of appeal--Rectification application by appellant contending that Tribunal committed arithmetical error dismissed--Prima facie evidence showing appellant recovered tax at 10.30 per cent. as claimed by it and not at 12.36 per cent.--Appellant to deposit entire undisputed amount and 25 per cent. of disputed tax demand--Finance Act (32 of 1994).--Shiva Industrial Security Agency (Gujarat) Pvt. Ltd. v. Commissioner of Central Excise (Guj) . . . 276

----Value added tax--Condonation of delay in filing--General principles--Counsel misbehaving with dealer and filing appeal after delay and failing to appear before appellate authority--Delay in filing appeal before Tribunal owing to copy of appellate order being received by person not authorised--On facts, delays to be condoned--Haryana Value Added Tax Act (6 of 2003).--Standard Steels v. State of Haryana (P&H) . . . 262

Assessment--Advertisement tax--Liability to tax--Assessment based on information collected from internet--Assessee not put on notice that information to be used in assessment--Assessment set aside--Matter remanded for assessment afresh after putting assessee on notice and giving it opportunity to explain--Madhya Pradesh Vilasita, Manoranjan, Amod Evam Vigyapan Kar Adhiniyam (11 of 2011).--Union of India v. State of Madhya Pradesh (MP) . . . 272

----Advertisement tax--Liability to tax--Notice--Must ordinarily be served 30 days before date of hearing--Notices served five days and nine days before hearing--Not proper--Madhya Pradesh Value Added Tax Rules, 2006, r. 31.--Union of India v. State of Madhya Pradesh (MP) . . . 272

Attachment--Value added tax--Provisional attachment--Dealer engaged in development of landed property--Failure to file returns--Attachment of bank accounts--Writ petition--Dealer admittedly liable to tax--Direction for release of bank account subject to conditions--Gujarat Value Added Tax Act, 2003 (1 of 2005), s. 44.--Shree Associates v. State of Gujarat (Guj) . . . 281

Central sales tax--Concessional rate of tax--Sales against declaration in Form C--Form C not fully filled up with complete details--Dealer seeking time to get forms correct by purchasing dealers concerned--Assessment made disallowing concessional tax--Writ petition--High Court--Dealer to be allowed to resubmit forms after making necessary corrections and assessing authority to verify them and give effect to them if found in order--Central Sales Tax Act (74 of 1956).--Mukat Pipes Limited v. State of Punjab (P&H) . . . 292

Cenvat credit--Excise duty--Service tax--Reversal of credit--Reversal of input service credit taken by assessee by account entry reversal--No outflow of funds from assessee--Assessee taking suo motu credit out of input service credit reversed--Sum available as Cenvat credit in respect of input services, given under rule 6(5) been re-credited--Demand of sum representing credit of service tax taken suo motu along with interest and imposition of penalty on ground assessee should have filed application for refund instead--Not justified--Cenvat Credit Rules, 2004, rr. 6(5), 14, 15--Central Excise Act (1 of 1944), ss. 11AB, 11B.--ICMC Corporation Ltd. v. Customs, Excise and Service Tax Appellate Tribunal (Mad) . . . 320

Check-post--See Penalty (Raj) . . . 260, 284

Circulars and clarification--See Entries in Schedule (MP) . . . 257

Commissioner--See Entries in Schedule (MP) . . . 257

----See Service tax (All) . . . 342

Compounding of tax--Trade tax--Manufacturer of refined oil--Scheme for compounding--Dealer opting for payment of tax under scheme for whole--Cannot thereafter claim refund of part of compounding fees on ground it started production in middle of year--No provision in scheme for charging compounding fees on proportionate basis--U. P. Trade Tax Act (15 of 1948), s. 7D.--Vaibhav Edibles Pvt. Ltd. v. State of U. P. (All) . . . 295

Declaration forms--Central sales tax--Concessional rate of tax--Sales against declaration in Form C--Form C not fully filled up with complete details--Dealer seeking time to get forms correct by purchasing dealers concerned--Assessment made disallowing concessional tax--Writ petition--High Court--Dealer to be allowed to resubmit forms after making necessary corrections and assessing authority to verify them and give effect to them if found in order--Central Sales Tax Act (74 of 1956).--Mukat Pipes Limited v. State of Punjab (P&H) . . . 292

----Sales tax--Penalty--Check-post--Evasion of tax--Goods in transit through State--Must be accompanied by requisite declaration form--Mandatory requirement--That goods tax-paid not ground to waive requirement--Failure to carry declaration form--Penalty leviable--Natural justice--Legal position clear--Dealer issued show-cause notice and submitting reply--No failure of natural justice--No remand called for--Order of penalty restored--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5)--Rajasthan Sales Tax Rules, 1995, r. 54(1)(ii).--Assistant Commercial Taxes Officer v. Suresh Chand-Jagdish Chand (Raj) . . . 284

----Sales tax--Penalty--Evasion of tax--Check-post--Goods in transit--Declaration in Form ST 18-A blank or incomplete--Supporting documents available--Levy of penalty whether justified--Dealer to be given opportunity of hearing--Matter remanded --Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5)--Rajasthan Sales Tax Rules, 1995, r. 53.--Assistant Commercial Taxes Officer v. Dynamic Industries Traders (Raj) . . . 260

----Sales tax--Penalty--Evasion of tax--Goods in transit--Failure to produce declaration form--Notification making owner of goods liable applicable to transactions prior to its issue--Declaration form produced with reply to show-cause notice--Penalty not leviable--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5).--Assistant Commercial Tax Officer v. Ravi Pulses Pvt. Limited (Raj) . . . 278

----Value added tax--Seizure--Transit of goods through State--Transport of goods of consignor-dealer in Orissa to consignee-dealer in Punjab--Vehicle carrying goods intercepted and goods found accompanied by all documents including G. R. and tax invoices --Transit declaration form produced pursuant to detention of goods and issuance of show-cause notice for failure to produce form 38/39 or transit declaration form but goods seized demanding security for release of goods--Seizure not valid in absence of provision for seizure for want of transit declaration form--Failure only attracts presumption of sale inside State--Uttar Pradesh Value Added Tax Act (5 of 2008), ss. 48, 50, 51, 52--Uttar Pradesh Value Added Tax Rules, 2008, rr. 52, 54, 55, 58--Uttar Pradesh Tax on Entry of Goods into Local Areas Act (30 of 2007), s. 13.--Prakash Transport Corporation v. Commissioner, Commercial Tax (All) . . . 308

Development of landed property--Value added tax--Provisional attachment--Dealer engaged in development of landed property--Failure to file returns--Attachment of bank accounts--Writ petition--Dealer admittedly liable to tax--Direction for release of bank account subject to conditions--Gujarat Value Added Tax Act, 2003 (1 of 2005), s. 44.--Shree Associates v. State of Gujarat (Guj) . . . 281

Entries in Schedule--Sales tax--Interest--"Swad" whether ayurvedic medicine or confectionery item--Whether interest leviable only from date of quantification of tax--Matter remanded--Rajasthan Sales Tax Act (29 of 1954), s. 11B(f).--Commercial Taxes Officer v. Khandelwal Drug Agencies (Raj) . . . 269

----Sales tax--Schedule of exempted items--"Singhada"--Includes "dried singhada" --Clarification of Commissioner that "dried singhada" taxable under Schedule II--Not correct--Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (5 of 1995), s. 15 ; Sch. I, entry 16, Sch. II, entry 2.--Bal Govind Awasty v. State of Madhya Pradesh (MP) . . . 257

Escaped assessment--Service tax--Notice--Condition precedent--Existence of materials to form belief that there was omission or failure by assessee to disclose all material facts--Finance Act (32 of 1994), s. 73(1)(a) (prior to amendment by Finance Act (32 of 2004) with effect from September 10, 2004).--Naresh Kumar & Co. Pvt. Ltd. v. Commissioner, Central Excise & Service Tax (All) . . . 342

----Service tax--Show-cause notice--Commissioner--Jurisdiction--September 1, 1999 to September 30, 2003--Assessee entering into consignment agency contract with T on April 2, 1998, renewed from time to time with same conditions--Show-cause notice dated October 9, 2002 demanding service tax under clearing and forwarding agency service for period September 1, 1999 till date of issuance thereof for making assessment and imposing penalties--Assessee replying furnished ST-3 returns for period September 1, 1999 to September 30, 2003 and paid tax under protest--Subsequent notice on May 12, 2003, under section 71(2) requesting assessee to produce all documents including agreement and all documents produced--No order passed by Superintendent or matter referred to Assistant Commissioner regarding satisfaction of escaped assessment or under-assessment--Third notice under section 73(1)(a) issued on September 6, 2003 by Deputy Commissioner--Illegal exercise of power--Appellant got registration dated June 22, 2002, furnished return for period September 1, 1999 to September 30, 2003 and paid tax under protest on remuneration, excluding expenses incurred on behalf of T--Complete facts and details relating to transactions available when notice issued--No case that authority had material to believe that there was omission or failure by assessee to disclose material facts--Order by Commissioner dated February 14, 2008 under section 73(1)(a) confirming demand of service tax, interest and imposing penalties and order by Tribunal confirming it quashed--Finance Act (32 of 1994), ss. 65(16) (now (25)), 65(72) (now (105)(j)), 70, 71(2), (3), 73(1)(a) (prior to amendment by Finance Act (32 of 2004) with effect from September 10, 2004).--Naresh Kumar & Co. Pvt. Ltd. v. Commissioner, Central Excise & Service Tax (All) . . . 342

Evasion of tax--See Penalty (Raj) . . . 260, 278, 284

Excise duty--See Service tax (Mad) . . . 320

Exemption--Sales tax--Entries in Schedule--Schedule of exempted items--"Singhada"--Includes "dried singhada"--Clarification of Commissioner that "dried singhada" taxable under Schedule II--Not correct--Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (5 of 1995), s. 15 ; Sch. I, entry 16, Sch. II, entry 2.--Bal Govind Awasty v. State of Madhya Pradesh (MP) . . . 257

High Court--See Central sales tax (P&H) . . . 292

Interest--Sales tax--Entries in Schedule--"Swad" whether ayurvedic medicine or confectionery item--Whether interest leviable only from date of quantification of tax--Matter remanded--Rajasthan Sales Tax Act (29 of 1954), s. 11B(f).--Commercial Taxes Officer v. Khandelwal Drug Agencies (Raj) . . . 269

Jurisdiction--See Service tax (All) . . . 342

Limitation--Value added tax--Appeal--Condonation of delay in filing--General principles--Counsel misbehaving with dealer and filing appeal after delay and failing to appear before appellate authority--Delay in filing appeal before Tribunal owing to copy of appellate order being received by person not authorised--On facts, delays to be condoned--Haryana Value Added Tax Act (6 of 2003).--Standard Steels v. State of Haryana (P&H) . . . 262

Natural justice--See Advertisement tax (MP) . . . 272

Notice--See Advertisement tax (MP) . . . 272

----See Service tax (All) . . . 342

Penalty--Sales tax--Check-post--Evasion of tax--Declaration forms--Goods in transit through State--Must be accompanied by requisite declaration form--Mandatory requirement--That goods tax-paid not ground to waive requirement--Failure to carry declaration form--Penalty leviable--Natural justice--Legal position clear--Dealer issued show-cause notice and submitting reply--No failure of natural justice--No remand called for--Order of penalty restored--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5) --Rajasthan Sales Tax Rules, 1995, r. 54(1)(ii).--Assistant Commercial Taxes Officer v. Suresh Chand-Jagdish Chand (Raj) . . . 284

----Sales tax--Evasion of tax--Check-post--Goods in transit--Declaration in Form ST 18-A blank or incomplete--Supporting documents available--Levy of penalty whether justified--Dealer to be given opportunity of hearing--Matter remanded--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5)--Rajasthan Sales Tax Rules, 1995, r. 53.--Assistant Commercial Taxes Officer v. Dynamic Industries Traders (Raj) . . . 260

----Sales tax--Evasion of tax--Goods in transit--Declaration form--Failure to produce declaration form--Notification making owner of goods liable applicable to transactions prior to its issue--Declaration form produced with reply to show-cause notice--Penalty not leviable--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5).--Assistant Commercial Tax Officer v. Ravi Pulses Pvt. Limited (Raj) . . . 278

Pre-deposit--See Service tax (All) . . . 316, (Guj) . . . 276

Recovery of tax--See Development of landed property (Guj) . . . 281

Retrospective legislation--See Penalty (Raj) . . . 278

Reversal of credit--See Service tax (Mad) . . . 320

Search and seizure --Value added tax--Transit of goods through State--Declaration forms--Transport of goods of consignor-dealer in Orissa to consignee-dealer in Punjab--Vehicle carrying goods intercepted and goods found accompanied by all documents including G. R. and tax invoices--Transit declaration form produced pursuant to detention of goods and issuance of show-cause notice for failure to produce form 38/39 or transit declaration form but goods seized demanding security for release of goods--Seizure not valid in absence of provision for seizure for want of transit declaration form--Failure only attracts presumption of sale inside State--Uttar Pradesh Value Added Tax Act (5 of 2008), ss. 48, 50, 51, 52--Uttar Pradesh Value Added Tax Rules, 2008, rr. 52, 54, 55, 58--Uttar Pradesh Tax on Entry of Goods into Local Areas Act (30 of 2007), s. 13.--Prakash Transport Corporation v. Commissioner, Commercial Tax (All) . . . 308

Service tax--Appeal--Appeal to Appellate Tribunal--Pre-deposit--Waiver of pre-deposit--Government company--Appellate Tribunal granting stay subject to deposit of entire demand with interest--On facts stay granted subject to assessee depositing half amount indicated by Tribunal within specified period--Central Excise Act (1 of 1944), s. 35F--Finance Act (32 of 1994).--BSNL v. Commissioner of Central Excise (All) . . . 316

----Appeal--Pre-deposit--Order by Tribunal directing appellant to deposit Rs. 72 lakhs for entertainment of appeal--Rectification application by appellant contending that Tribunal committed arithmetical error dismissed--Prima facie evidence showing appellant recovered tax at 10.30 per cent. as claimed by it and not at 12.36 per cent.--Appellant to deposit entire undisputed amount and 25 per cent. of disputed tax demand--Finance Act (32 of 1994).--Shiva Industrial Security Agency (Gujarat) Pvt. Ltd. v. Commissioner of Central Excise (Guj) . . . 276

----Escaped assessment--Notice--Condition precedent--Existence of materials to form belief that there was omission or failure by assessee to disclose all material facts--Finance Act (32 of 1994), s. 73(1)(a) (prior to amendment by Finance Act (32 of 2004) with effect from September 10, 2004).--Naresh Kumar & Co. Pvt. Ltd. v. Commissioner, Central Excise & Service Tax (All) . . . 342

----Escaped assessment--Show-cause notice--Commissioner--Jurisdiction--September 1, 1999 to September 30, 2003--Assessee entering into consignment agency contract with T on April 2, 1998, renewed from time to time with same conditions--Show-cause notice dated October 9, 2002 demanding service tax under clearing and forwarding agency service for period September 1, 1999 till date of issuance thereof for making assessment and imposing penalties--Assessee replying furnished ST-3 returns for period September 1, 1999 to September 30, 2003 and paid tax under protest--Subsequent notice on May 12, 2003, under section 71(2) requesting assessee to produce all documents including agreement and all documents produced--No order passed by Superintendent or matter referred to Assistant Commissioner regarding satisfaction of escaped assessment or under-assessment--Third notice under section 73(1)(a) issued on September 6, 2003 by Deputy Commissioner--Illegal exercise of power--Appellant got registration dated June 22, 2002, furnished return for period September 1, 1999 to September 30, 2003 and paid tax under protest on remuneration, excluding expenses incurred on behalf of T--Complete facts and details relating to transactions available when notice issued--No case that authority had material to believe that there was omission or failure by assessee to disclose material facts--Order by Commissioner dated February 14, 2008 under section 73(1)(a) confirming demand of service tax, interest and imposing penalties and order by Tribunal confirming it quashed--Finance Act (32 of 1994), ss. 65(16) (now (25)), 65(72) (now (105)(j)), 70, 71(2), (3), 73(1)(a) (prior to amendment by Finance Act (32 of 2004) with effect from September 10, 2004).--Naresh Kumar & Co. Pvt. Ltd. v. Commissioner, Central Excise & Service Tax (All) . . . 342

----Excise duty--Cenvat credit--Reversal of credit--Reversal of input service credit taken by assessee by account entry reversal--No outflow of funds from assessee--Assessee taking suo motu credit out of input service credit reversed--Sum available as Cenvat credit in respect of input services, given under rule 6(5) been re-credited--Demand of sum representing credit of service tax taken suo motu along with interest and imposition of penalty on ground assessee should have filed application for refund instead--Not justified--Cenvat Credit Rules, 2004, rr. 6(5), 14, 15--Central Excise Act (1 of 1944), ss. 11AB, 11B.--ICMC Corporation Ltd. v. Customs, Excise and Service Tax Appellate Tribunal (Mad) . . . 320

----Telecommunication service--Value of SIM cards supplied by mobile telephone service provider--Forms part of value of taxable service--Finance Act (32 of 1994), s. 65(109a).--Commissioner of Central Excise v. Bharati Airtel Ltd. (Mad) . . . 289

SIM card--See Service tax (Mad) . . . 289

Telecommunication service--Service tax--Value of SIM cards supplied by mobile telephone service provider--Forms part of value of taxable service--Finance Act (32 of 1994), s. 65(109a).--Commissioner of Central Excise v. Bharati Airtel Ltd. (Mad) . . . 289

Tribunal--See Service tax (All) . . . 316

Value added tax--See Development of landed property (Guj) . . . 281

----See Search and seizure (All) . . . 308

Value of taxable service--See Service tax (Mad) . . . 289

Writs under Constitution--See Central sales tax (P&H) . . . 292

----See Development of landed property (Guj) . . . 281


CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL


Clearing and forwarding agent--Service tax--September 1, 1999 to September 30, 2003--Notice--Consignment agent appointed by T for operating and maintaining its stockyard by receiving, stacking and delivering material to nominated customers of T--Activities taxable under clearing and forwarding agent service --Notice dated October 9, 2002 for getting correct details not specifying amount of service tax--Subsequent notice for producing, books of accounts not under section 73--Third notice alone adjudicated on issue for relevant period--Valid--Finance Act (32 of 1994), ss. 65(16) (now (25)), 65(72) (now (105)(j)), 71(2), 73 (prior to amendment by Finance Act 2004 with effect from September 10, 2004).--CCE v. Naresh Kumar & Co. (P) Ltd. (CESTAT-New Delhi) . . . 329

----Service tax--September 1, 1999 to September 30, 2003--Penalty--Reasonable cause--Cum-tax benefit--Consignment agent appointed by T for operating and maintaining stockyard by receiving, stacking and delivering material to nominated customers of T--Liable as clearing and forwarding agent--Not registered till May 20, 2002 and filed returns only in November 22, 2002--Tax and interest not paid in full--Section 80 not invocable--Penalties under sections 76 and 78 leviable simultaneously prior to May 10, 2008--For period April 18, 2006 to May 9, 2008, penalty under section 76 to be paid under amended provision--Cum-tax benefit available if shown that price included tax payable--Deduction on account of reimbursement not permissible--Finance Act (32 of 1994), ss. 65(16) (now (25)), 65(72) (now (105)(j)), 71(2), 73(1)(a) (prior to amendment by Finance Act, 2004 with effect from September 10, 2004), 76, 78, 80 (as it existed during relevant period).--CCE v. Naresh Kumar & Co. (P) Ltd. (CESTAT-New Delhi) . . . 329

Notice--See Service tax (CESTAT-New Delhi) . . . 329

Penalty--See Service tax (CESTAT-New Delhi) . . . 329

Service tax--Clearing and forwarding agent--September 1, 1999 to September 30, 2003--Notice--Consignment agent appointed by T for operating and maintaining its stockyard by receiving, stacking and delivering material to nominated customers of T--Activities taxable under clearing and forwarding agent service--Notice dated October 9, 2002 for getting correct details not specifying amount of service tax--Subsequent notice for producing, books of accounts not under section 73--Third notice alone adjudicated on issue for relevant period--Valid--Finance Act (32 of 1994), ss. 65(16) (now (25)), 65(72) (now (105)(j)), 71(2), 73 (prior to amendment by Finance Act 2004 with effect from September 10, 2004).--CCE v. Naresh Kumar & Co. (P) Ltd. (CESTAT-New Delhi) . . . 329

----Clearing and forwarding agent--September 1, 1999 to September 30, 2003--Penalty--Reasonable cause--Cum-tax benefit--Consignment agent appointed by T for operating and maintaining stockyard by receiving, stacking and delivering material to nominated customers of T--Liable as clearing and forwarding agent--Not registered till May 20, 2002 and filed returns only in November 22, 2002--Tax and interest not paid in full--Section 80 not invocable--Penalties under sections 76 and 78 leviable simultaneously prior to May 10, 2008--For period April 18, 2006 to May 9, 2008, penalty under section 76 to be paid under amended provision--Cum-tax benefit available if shown that price included tax payable--Deduction on account of reimbursement not permissible--Finance Act (32 of 1994), ss. 65(16) (now (25)), 65(72) (now (105)(j)), 71(2), 73(1)(a) (prior to amendment by Finance Act, 2004 with effect from September 10, 2004), 76, 78, 80 (as it existed during relevant period).--CCE v. Naresh Kumar & Co. (P) Ltd. (CESTAT-New Delhi) . . . 329

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