VAT AND SERVICE TAX CASES (VST)

ONLINE EDITION

VOL. 4 : ISSUE DATED 23-1-2015


HIGH COURTS


Appeal--Sales tax--Assessment--Remand--Tax Board--Appellate authority remitting matter to assessing authority for fresh consideration after affording opportunity of hearing to assessee and order passed accordingly--Dismissal by Tax Board of appeal thereagainst by Department--Not illegal--Revision--Dismissed as no issue under challenge--Rajasthan Sales Tax Act, 1994 (22 of 1995).--Assistant Commercial Taxes Officer v. Hexacom India Ltd. (Raj) . . . 105

Assessment--Writs under Constitution--Alternative remedy--Petition seeking to quash order by Joint Commissioner on revision petition filed by petitioner against provisional assessment order--Not maintainable--Constitution of India, art. 226--Tamil Nadu Value Added Tax Act (32 of 2006).--ALD Automotive Private Ltd. v. Joint Commissioner (CT) (Mad) . . . 107

----See also Remand (Raj) . . . 105

Declaration form--Sales tax--Penalty--Evasion of tax--Mens rea--Goods in transit--Remedy against loss of revenue--Declaration form ST-18C accompanying goods found incomplete leaving columns pertaining to invoice number and date blank when vehicle checked--By itself indicative of mens rea of assessee to evade tax--Penalty attracted--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(2), (5).--Assistant Commercial Taxes Officer v. Ashiyana Ispat Ltd. (Raj) . . . 109

Evasion of tax--See Penalty (Raj) . . . 109

Mens rea--See Penalty (Raj) . . . 109

Penalty--Sales tax--Evasion of tax--Mens rea--Goods in transit--Declaration form--Remedy against loss of revenue--Declaration form ST-18C accompanying goods found incomplete leaving columns pertaining to invoice number and date blank when vehicle checked--By itself indicative of mens rea of assessee to evade tax--Penalty attracted--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(2), (5).--Assistant Commercial Taxes Officer v. Ashiyana Ispat Ltd. (Raj) . . . 109

Remand--Sales tax--Assessment--Appeal--Tax Board--Appellate authority remitting matter to assessing authority for fresh consideration after affording opportunity of hearing to assessee and order passed accordingly--Dismissal by Tax Board of appeal thereagainst by Department--Not illegal--Revision--Dismissed as no issue under challenge--Rajasthan Sales Tax Act, 1994 (22 of 1995).--Assistant Commercial Taxes Officer v. Hexacom India Ltd. (Raj) . . . 105

Revision--See Remand (Raj) . . . 105

----See Writs under Constitution (Mad) . . . 107

Value added tax--See Writs under Constitution (Mad) . . . 107

Writs under Constitution--Alternative remedy--Petition seeking to quash order by Joint Commissioner on revision petition filed by petitioner against provisional assessment order--Not maintainable--Constitution of India, art. 226--Tamil Nadu Value Added Tax Act (32 of 2006).--ALD Automotive Private Ltd. v. Joint Commissioner (CT) (Mad) . . . 107


CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL


Cargo handling service--See Service tax (CESTAT-New Delhi). . . 91

Cenvat credit--See Service tax (CESTAT-Chennai) . . . 102

Input service--See Service tax (CESTAT-Chennai) . . . 102

Interest--See Service tax (CESTAT-New Delhi) . . . 91

Limitation--See Service tax (CESTAT-New Delhi) . . . 91

Mining of minerals service--Service tax--Appellant clearing site for mining, excavating top soil, dumping at a specified place, removing overburden and raising saleable lignite from mines--Not taxable as cargo handling service during period till June 15, 2005--Not taxable as site formation and clearance, excavation and earth moving service during period from June 16, 2005 to May 31, 2007--Taxable as mining of minerals service since June 1, 2007--Show-cause notices issued on September 29, 2008 for period from October 2007 to March 2008 and for period ending September 30, 2007--Within period of limitation--On facts tax demand for period from June 1, 2007 to March 31, 2008 along with interest and penalties under section 76 and under section 78 of amount equal to tax demand upheld--Demand of tax and penalty under section 78 for period prior to June 1, 2007--Set aside--Finance Act (32 of 1994), ss. 65(105)(zr), (zzza), (zzzy), 73(1), 76, 77, 78, 80.--National Construction Company v. Commissioner of Central Excise (CESTAT-New Delhi) . . . 91

Penalty--Service tax--Cenvat credit--Input service--Freight incurred on inward receipt of coal in assessee's factory for use in generation of electricity partly used in manufacture of excisable goods and partly fed into grid of Electricity Board--Assessee reversing Cenvat credit used in generation of electricity to be fed into grid of Electricity Board only before issue of show-cause notice--Adjudicating authority confirming demand of tax along with interest and imposing penalty pursuant to show cause--Commissioner (Appeals) setting aside penalty while upholding adjudication order without examining whether ingredients mentioned in section 11AC would apply--Not proper--Matter remitted--Central Excise Act (1 of 1944), s. 11AC--Finance Act (32 of 1994), s. 78--CENVAT Credit Rules, 2004, r. 15(4).--Commissioner of Central Excise v. Bannari Amman Sugars Ltd. (CESTAT-Chennai) . . . 102

----See also Service tax (CESTAT-New Delhi) . . . 91

Service tax--Cenvat credit--Input service--Freight incurred on inward receipt of coal in assessee's factory for use in generation of electricity partly used in manufacture of excisable goods and partly fed into grid of Electricity Board--Assessee reversing Cenvat credit used in generation of electricity to be fed into grid of Electricity Board only before issue of show-cause notice--Adjudicating authority confirming demand of tax along with interest and imposing penalty pursuant to show cause--Commissioner (Appeals) setting aside penalty while upholding adjudication order without examining whether ingredients mentioned in section 11AC would apply--Not proper--Matter remitted--Central Excise Act (1 of 1944), s. 11AC--Finance Act (32 of 1994), s. 78--CENVAT Credit Rules, 2004, r. 15(4).--Commissioner of Central Excise v. Bannari Amman Sugars Ltd. (CESTAT-Chennai) . . . 102

----Mining of minerals service--Appellant clearing site for mining, excavating top soil, dumping at a specified place, removing overburden and raising saleable lignite from mines--Not taxable as cargo handling service during period till June 15, 2005--Not taxable as site formation and clearance, excavation and earth moving service during period from June 16, 2005 to May 31, 2007--Taxable as mining of minerals service since June 1, 2007--Show-cause notices issued on September 29, 2008 for period from October 2007 to March 2008 and for period ending September 30, 2007--Within period of limitation--On facts tax demand for period from June 1, 2007 to March 31, 2008 along with interest and penalties under section 76 and under section 78 of amount equal to tax demand upheld--Demand of tax and penalty under section 78 for period prior to June 1, 2007--Set aside--Finance Act (32 of 1994), ss. 65(105)(zr), (zzza), (zzzy), 73(1), 76, 77, 78, 80.--National Construction Company v. Commissioner of Central Excise (CESTAT-New Delhi) . . . 91

Site formation and clearance, excavation and earth moving service--See Service tax (CESTAT-New Delhi) . . . 91


PRINT EDITION

VOLUME 77 : PART 4 : ISSUE DATED 23-1-2015


SUPREME COURT


Accessory--Value added tax--Entries in Schedule--Battery charger--Is accessory of cell phone, not part--Sale of battery charger along with cell phone as composite package--Not eligible for concessional rate of tax applicable to cell phone--Punjab Value Added Tax Act (8 of 2005), Sch. B, entry 60(6)(g), Sch. F.--State of Punjab v. Nokia India Pvt. Ltd. (SC) . . . 427

Entries in Schedule--Value added tax--Battery charger--Is accessory of cell phone, not part--Sale of battery charger along with cell phone as composite package--Not eligible for concessional rate of tax applicable to cell phone--Punjab Value Added Tax Act (8 of 2005), Sch. B, entry 60(6)(g), Sch. F.--State of Punjab v. Nokia India Pvt. Ltd. (SC) . . . 427

Value added tax--See Entries in Schedule (SC) . . . 427


HIGH COURTS


Appeal--Appellate Tribunal--Best judgment assessment--Value added tax--Central sales tax--Offences detected when goods transported from Kerala to Karnataka on consignment sales--Security deposits collected subsequently converted to penalty under Value Added Tax Act--Assessing authority rejecting returns and resorting to best judgment assessment under value added tax law--Assessee claiming no local sales and contending turnover estimated under Value Added Tax Act bad in law--Legality of estimation not considered by Tribunal on ground such contention not raised before lower authorities--Not justified--Question of law ought to have been considered--Kerala Value Added Tax Act, 2003 (30 of 2004) s. 6(1)--Central Sales Tax Act (74 of 1956), s. 6A. --Ahamed Kabeer v. State of Kerala (Ker) . . . 388

----Service tax--Appeal to Appellate Tribunal--Pre-deposit--Assessee operating retail stores--Consideration received from concessionaires for display, demonstration and sale of products --Assessee under bona fide belief that its services not taxable prior to June 1, 2007 and of its own commencing payment of tax under category "renting of immovable property"--Demand for prior period under category "business support services"--Direction to make pre-deposit of 50 per cent. of demand modified to 25 per cent. --Finance Act (32 of 1994), s. 83.--Shoppers Stop Limited v. Commissioner (TAR) (Bom) . . . 374

Appellate Tribunal--Power to adjudicate--Scope of.--Ahamed Kabeer v. State of Kerala (Ker) . . . 388

Best judgment assessment--Value added tax--Inter-State movement--Goods transported through check-posts on consignment basis--Two times detection in August and December 2005 that quantity transported in excess of quantity specified in delivery note--Authority proceeding on basis that facts disclosed pattern of suppression, rejecting all monthly returns for October 2005 to March 2006 and making best judgment assessment--Not illegal--Kerala Value Added Tax Act, 2003 (30 of 2004), ss. 6(1), 24(1)--Kerala Value Added Tax Rules, 2005, r. 39(5)(i), (iii)--Central Sales Tax Act (74 of 1956).--Ahamed Kabeer v. State of Kerala (Ker) . . . 388

----See also Appeal (Ker) . . . 388

Business support service--See Service tax (Bom) . . . 374

Central sales tax--See Appeal (Ker) . . . 388

Check-post--Sales tax--Penalty--Evasion of tax--Goods being transmitted under stock transfer--Transaction prior to issuance of notification introducing requirement to carry form ST-18A--Except declaration in form ST-18A all other relevant documents found to be in order--Penalty not leviable--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5)--Notification No. F 4(1)FD/Tax/Div/2000-314 dated March 20, 2000.--Assistant Commercial Taxes Officer v. Kamlesh Kumar Rajesh Kumar (Raj) . . . 405

Construction of taxing statutes--Words of statute to be understood in their natural and ordinary sense--Meaning contrary to its natural and grammatical sense not to be given by court under guise of strict construction.--Raj Kumar Engineering Pvt. Ltd. v. State of Andhra Pradesh (T and AP) . . . 340

Declaration forms--See Penalty (Raj) . . . 405

Entry tax--See Exemption (Chhattisgarh) . . . 397

Evasion of tax--See Penalty (Raj) . . . 405

----See Service tax (All) . . . 358

Exemption--Entry tax--Promissory estoppel--2001-06 Policy--Assessee setting up unit in pursuance of policy giving various benefits of exemption in electricity duty, stamp duty and entry tax to industries and starting commercial production on June 16, 2004--Promise by State of exemption of entry tax and issuance of notification in 60 days therefor--Notification granting exemption to units that commenced commercial production on or after first day of November, 2004 issued after more than three years of issuance of Policy--Assessee cannot be denied benefit on ground it did not start commercial production after November 1, 2004-Principle of promissory estoppel applicable--Exemption of entry tax for seven years given to all similarly situate industries--Assessee entitled to exemption for seven years from date of its commercial production--Chhattisgarh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam (52 of 1976), s. 10.--State of Chhattisgarh v. VM Extrusions Pvt. Ltd. (Chhattisgarh) . . . 397

----Sales tax--Works contract--Surcharge--State Government--"Surcharge", "tax"--Definitions--Notification pro- viding for exemption on condition, inter alia, of payment of one per cent. of total value of works contract--Payment, not tax, fee, or sum in lieu of tax--Surcharge not leviable thereon--Rajasthan Sales Tax Act (29 of 1954), s. 4(2) --Rajasthan Sales Tax Rules, 1955, r. 10B--Rajasthan Sales Tax Act, 1994 (22 of 1995), ss.  2(14), 5, 13.--Assistant Commissioner v. Shiva Construction Pvt. Ltd. (Raj) . . . 366

Government--See Works contract (Raj) . . . 366

High Court--Revision--Whether assessee collected tax--Question of fact--Whether penalty imposable on assessee for failure to pay tax collected by him--Question of fact and law--Court cannot entertain for first time.--Raj Kumar Engineering Pvt. Ltd. v. State of Andhra Pradesh (T and AP) . . . 340

Manpower recruitment and supply agency's service--See Service tax (All) . . . 358

Offences--See Appeal (Ker) . . . 388

Penalty--Sales tax--Check-post--Evasion of tax--Goods being transmitted under stock transfer--Transaction prior to issuance of notification introducing requirement to carry form ST-18A--Except declaration in form ST-18A all other relevant documents found to be in order--Penalty not leviable--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5)--Notification No. F 4(1)FD/Tax/Div/2000-314 dated March 20, 2000.--Assistant Commercial Taxes Officer v. Kamlesh Kumar Rajesh Kumar (Raj) . . . 405

----Sales tax--Delay in payment of tax--Levy of penalty equal to tax for belated payment of tax, for February 1996 taking into consideration delayed payment of monthly tax in earlier months of 1995-96--On dealer who charged his customer to tax, but not paid it to Revenue within stipulated time--Valid--Whether dealer collected tax from his customer before due date of payment of tax to Government--Not relevant--Lesser penalty not imposable as provision prescribed fixed penalty--Levy, charge and collection, meanings of--Andhra Pradesh General Sales Tax Act (6 of 1957), s. 15(4)(a) (as it stood after its amendment by Act 18 of 1985 with effect from July 1, 1985)--Andhra Pradesh General Sales Tax Rules, 1957, r. 17.--Raj Kumar Engineering Pvt. Ltd. v. State of Andhra Pradesh (T and AP) . . . 340

----Service tax--Manpower recruitment and supply agency's service--From 2005-06 to 2009-10--Failure by assessee to pay tax on provident fund component received from service recipient--Registration obtained on July 11, 2006--Entire tax dues together with interest paid before order of adjudication passed--Uncertainty among service providers on whether tax leviable on provident fund component received from recipient of service during relevant period--No deliberate intention to evade payment of tax--Penalty not warranted--Finance Act (32 of 1994), ss. 76, 78.--H. M. Singh and Co. v. Commissioner of Central Customs, Excise and Service Tax (All) . . . 358

Pre-deposit--See Service tax (Bom). . . 374

Promissory estoppel--Entry tax--Exemption--2001-06 Policy--Assessee setting up unit in pursuance of policy giving various benefits of exemption in electricity duty, stamp duty and entry tax to industries and starting commercial production on June 16, 2004--Promise by State of exemption of entry tax and issuance of notification in 60 days therefor--Notification granting exemption to units that commenced commercial production on or after first day of November, 2004 issued after more than three years of issuance of Policy--Assessee cannot be denied benefit on ground it did not start commercial production after November 1, 2004-Principle of promissory estoppel applicable--Exemption of entry tax for seven years given to all similarly situate industries--Assessee entitled to exemption for seven years from date of its commercial production--Chhattisgarh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam (52 of 1976), s. 10.--State of Chhattisgarh v. VM Extrusions Pvt. Ltd. (Chhattisgarh) . . . 397

Renting of immovable property service--See Service tax (Bom) . . . 374

Revision--High Court--Whether assessee collected tax--Question of fact--Whether penalty imposable on assessee for failure to pay tax collected by him--Question of fact and law--Court cannot entertain for first time.--Raj Kumar Engineering Pvt. Ltd. v. State of Andhra Pradesh (T and AP). . . 340

Service tax--Appeal to Appellate Tribunal--Pre-deposit--Assessee operating retail stores--Consideration received from concessionaires for display, demonstration and sale of products --Assessee under bona fide belief that its services not taxable prior to June 1, 2007 and of its own commencing payment of tax under category "renting of immovable property"--Demand for prior period under category "business support services"--Direction to make pre-deposit of 50 per cent. of demand modified to 25 per cent.--Finance Act (32 of 1994), s. 83.--Shoppers Stop Limited v. Commissioner (TAR) (Bom) . . . 374

----Manpower recruitment and supply agency's service--Penalty--From 2005-06 to 2009-10--Failure by assessee to pay tax on provident fund component received from service recipient--Registration obtained on July 11, 2006--Entire tax dues together with interest paid before order of adjudication passed --Uncertainty among service providers on whether tax leviable on provident fund component received from recipient of service during relevant period--No deliberate intention to evade payment of tax--Penalty not warranted--Finance Act (32 of 1994), ss. 76, 78.--H. M. Singh and Co. v. Commissioner of Central Customs, Excise and Service Tax (All) . . . 358

Stock transfer--See Penalty (Raj) . . . 405

Surcharge--See Works contract (Raj) . . . 366

Tribunal--Appellate Tribunal--Best judgment assessment--Value added tax--Central sales tax--Offences detected when goods transported from Kerala to Karnataka on consignment sales--Security deposits collected subsequently converted to penalty under Value Added Tax Act--Assessing authority rejecting returns and resorting to best judgment assessment under value added tax law--Assessee claiming no local sales and contending turnover estimated under Value Added Tax Act bad in law--Legality of estimation not considered by Tribunal on ground such contention not raised before lower authorities--Not justified--Question of law ought to have been considered--Kerala Value Added Tax Act, 2003 (30 of 2004) s. 6(1)--Central Sales Tax Act (74 of 1956), s. 6A.--Ahamed Kabeer v. State of Kerala (Ker) . . . 388

Value added tax--Best judgment assessment--Inter-State movement--Goods transported through check-posts on consignment basis--Two times detection in August and December 2005 that quantity transported in excess of quantity specified in delivery note--Authority proceeding on basis that facts disclosed pattern of suppression, rejecting all monthly returns for October 2005 to March 2006 and making best judgment assessment--Not illegal--Kerala Value Added Tax Act, 2003 (30 of 2004), ss. 6(1), 24(1)--Kerala Value Added Tax Rules, 2005, r. 39(5)(i), (iii)--Central Sales Tax Act (74 of 1956).--Ahamed Kabeer v. State of Kerala (Ker) . . . 388

----See also Appeal (Ker) . . . 388

Words and phrases--"Levy", "charge", "collection", meanings of.--Raj Kumar Engineering Pvt. Ltd. v. State of Andhra Pradesh (T and AP) . . . 340

----"Surcharge", "tax".--Definitions.--Assistant Commissioner v. Shiva Construction Pvt. Ltd. (Raj) . . . 366

Works contract--Sales tax--Exemption--Surcharge--State Government--"Surcharge", "tax"--Definitions--Notification providing for exemption on condition, inter alia, of payment of one per cent. of total value of works contract--Payment, not tax, fee, or sum in lieu of tax--Surcharge not leviable thereon--Rajasthan Sales Tax Act (29 of 1954), s. 4(2)--Rajasthan Sales Tax Rules, 1955, r. 10B--Rajasthan Sales Tax Act, 1994 (22 of 1995), ss. 2(14), 5, 13.--Assistant Commissioner v. Shiva Construction Pvt. Ltd. (Raj) . . . 366



CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL


Burden of proof--See Service tax (CESTAT-New Delhi) . . . 416

Business auxiliary service--See Service tax (CESTAT-Ahd) . . . 378

Cenvat credit--Service tax--Input tax--Exempted services--October 2005 to September 2007--Penalties--Appellants providing taxable services as well as services of digital signature certification on which liability not applicable--Appellants not maintaining separate accounts and using entire Cenvat credit of tax paid on input services used for providing taxable and non-taxable service instead of 20 per cent. of credit--Entire tax and interest paid by appellant in cash before issue of show-cause notice dated December 21, 2009--Order raising demand along with interest justified--Extended period of limitation invocable as Department not informed of provision of digital signature certification services--Penalties under sections 76 and 78 not warranted as section 80 invocable on facts--Cenvat Credit Rules, 2004, r. 6(3)(c).--GNFC Ltd. v. Commissioner of Central Excise and Service Tax (CESTAT-Ahd) . . . 409

Construction of residential complex service--Service tax--Refund--Unjust enrichment--Works contract--Agreements between assessees (builder, promoter and developer) and prospective customers of flats built by assessees for construction of flats against payments in instalments, possession thereof being given to customers on entire payment made--Assessees engaged contractors for construction of residential complexes--Assessees not liable for period prior to July 1, 2010 when Explanation added to section 65(105)(zzzh)--In absence of Government's intention prior to July 1, 2010 to tax such works contracts involving transfer of immovable property--On facts refund claims not hit by limitation--Assessees entitled to refund of taxes paid--Finance Act (32 of 1994), s. 65(105)(zzzh).--Krishna Homes v. CCE (CESTAT-New Delhi) . . . 416

Digital signature certification service--See Service tax (CESTAT-Ahd) . . . 409

Exemption--See Service tax (CESTAT-Ahd) . . . 409

Input tax--See Service tax (CESTAT-Ahd) . . . 409

Limitation--Service tax--Appellant importing and selling goods while in customs bonded warehouse--Price mentioned in purchase orders split while raising invoice and separate debit note issued towards expenses for service provided by service providers to appellants such as banking and L/C (letter of credit) charges, wharfage, etc.--Show-cause notice dated April 18, 2013 issued for tax on amount of debit notes for period October 1, 2007 to January 5, 2012 under category of business auxiliary service--Four audits conducted by Department covering period October 1, 2007 to January 5, 2012--Details of invoices and charges received through debit notes, ledger account, etc., already examined by DGCEI and enquiry closed in 2010 after forming view that no case for demand of tax--That authorities subsequently changed their view not justifying invocation of larger period of limitation--Order by Commissioner demanding tax, interest and imposing penalties--Set aside--Finance Act (32 of 1994), ss. 65(19), 73(1), proviso.--C. J. Shah & Co. v. Commissioner of Central Excise (CESTAT-Ahd) . . . 378

----See also Service tax (CESTAT-Ahd) . . . 409

Penalty--See Service tax (CESTAT-Ahd) . . . 409

Refund--Service tax--Unjust enrichment--Burden of proof--Assessee producing invoices issued by him in support of his claim that no amount towards tax charged by him from customers--Burden shifts on Department to produce evidence that incidence of tax passed on to customers--Central Excise Act (1 of 1944), s. 12B--Finance Act (32 of 1994), s. 83.--Krishna Homes v. CCE (CESTAT-New Delhi) . . . 416

Service tax--Business auxiliary service--Appellant importing and selling goods while in customs bonded warehouse--Price mentioned in purchase orders split while raising invoice and separate debit note issued towards expenses for service provided by service providers to appellants such as banking and L/C (letter of credit) charges, wharfage, etc.--Appellants cannot be said to have rendered business auxiliary service to purchasers--Debit notes towards reimbursement of expenses incurred by appellants--Expenses incurred by service provider not liable--Finance Act (32 of 1994).--C. J. Shah & Co. v. Commissioner of Central Excise (CESTAT-Ahd) . . . 378

----Cenvat credit--Input tax--Exempted services--October 2005 to September 2007--Penalties--Appellants providing taxable services as well as services of digital signature certification on which liability not applicable--Appellants not maintaining separate accounts and using entire Cenvat credit of tax paid on input services used for providing taxable and non-taxable service instead of 20 per cent. of credit--Entire tax and interest paid by appellant in cash before issue of show-cause notice dated December 21, 2009--Order raising demand along with interest justified--Extended period of limitation invocable as Department not informed of provision of digital signature certification services--Penalties under sections 76 and 78 not warranted as section 80 invocable on facts --Cenvat Credit Rules, 2004, r. 6(3)(c).--GNFC Ltd. v. Commissioner of Central Excise and Service Tax (CESTAT-Ahd) . . . 409

----Construction of residential complex service--Refund--Unjust enrichment--Works contract--Agreements between assessees (builder, promoter and developer) and prospective customers of flats built by assessees for construction of flats against payments in instalments, possession thereof being given to customers on entire payment made--Assessees engaged contractors for construction of residential complexes--Assessees not liable for period prior to July 1, 2010 when Explanation added to section 65(105)(zzzh)--In absence of Government's intention prior to July 1, 2010 to tax such works contracts involving transfer of immovable property--On facts refund claims not hit by limitation--Assessees entitled to refund of taxes paid--Finance Act (32 of 1994), s. 65(105)(zzzh).--Krishna Homes v. CCE (CESTAT-New Delhi) . . . 416

----Limitation--Appellant importing and selling goods while in customs bonded warehouse--Price mentioned in purchase orders split while raising invoice and separate debit note issued towards expenses for service provided by service providers to appellants such as banking and L/C (letter of credit) charges, wharfage, etc.--Show-cause notice dated April 18, 2013 issued for tax on amount of debit notes for period October 1, 2007 to January 5, 2012 under category of business auxiliary service--Four audits conducted by Department covering period October 1, 2007 to January 5, 2012--Details of invoices and charges received through debit notes, ledger account, etc., already examined by DGCEI and enquiry closed in 2010 after forming view that no case for demand of tax--That authorities subsequently changed their view not justifying invocation of larger period of limitation--Order by Commissioner demanding tax, interest and imposing penalties--Set aside--Finance Act (32 of 1994), ss. 65(19), 73(1), proviso.--C. J. Shah & Co. v. Commissioner of Central Excise (CESTAT-Ahd) . . . 378

----Refund--Unjust enrichment--Burden of proof--Assessee producing invoices issued by him in support of his claim that no amount towards tax charged by him from customers--Burden shifts on Department to produce evidence that incidence of tax passed on to customers--Central Excise Act (1 of 1944), s. 12B--Finance Act (32 of 1994), s. 83.--Krishna Homes v. CCE (CESTAT-New Delhi) . . . 416

Unjust enrichment--See Service tax (CESTAT-New Delhi) . . . 416

Value of taxable service--Service tax--Business auxiliary service--Appellant importing and selling goods while in customs bonded warehouse--Price mentioned in purchase orders split while raising invoice and separate debit note issued towards expenses for service provided by service providers to appellants such as banking and L/C (letter of credit) charges, wharfage, etc.--Appellants cannot be said to have rendered business auxiliary service to purchasers--Debit notes towards reimbursement of expenses incurred by appellants--Expenses incurred by service provider not liable--Finance Act (32 of 1994).--C. J. Shah & Co. v. Commissioner of Central Excise (CESTAT-Ahd) . . . 378
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