I. Useful Updates on Service Tax:
1. Commissioner of Central Excise, Govt. of India Vs. H.T. Media (HC PATNA), MISC. APPEAL NO. 620 OF 2009, DATE: APRIL 29, 2011 (In favour of Assessee)
Brief fact of the case:
I. It is with respect to the period January 2005 to March 2005. The assesse/respondent is engaged in the business, inter alia, of production and circulation of news papers. The assessee/respondent is liable to payment of service tax on freight charges in view of the provisions of the Finance Act, 1994 and it did the same by claiming abatement of 75%.
II. The Director General of Service Tax, Mumbai, issued circular dated 30-3-2005, clarifying the position that the benefit of exemption of abatement of tax to the extent of 75 per cent shall be available to the goods transport agency only. In view of this clarificatory circular, the assessee deposited a balance 75% amount.
III. This was followed by another clarificatory circular No. B1/6/05-TRU, dated 27-7-2005, which in substance provided that the benefit of abatement of tax to the extent of 75 per cent shall be available to the consignors and consignees also. It was further clarified that a declaration by G.T.A. on the consignment note may suffice.
IV. In view of the clarificatory circular, the assessee submitted his application, for refund of the amount of abatement on service tax to the extent of 75 per cent. After hearing the parties, the learned Adjudicating Officer passed order dated 28-12-2006, directing refund.
Held:
The order dated 12-6-2009, passed by the learned Tribunal is hereby upheld. The substantial questions of law are answered against the Revenue, and in favour of the assessee. It shall be entitled to amount of refund along with interest at the same rate at which the Revenue is entitled to interest for delayed deposit by the assessee, from the dates of deposits of the excess amount till the date of refund. In the facts and circumstances of the case, there shall be no order as to costs.
(Please click here for judgment)
2. Commissioner of Central Excise, Commissionerate Vs. Ess Ess Engineers (HC PUNJAB AND HARYANA), APPEAL NO. 2 OF 2011 (O&M), JUDGEMENT DATED: MAY 13, 2011 (In favour of assessee)
Brief fact of the case:
I. The assesse/respondent is, inter alia, engaged in providing of taxable service of "Erection, Commissioning and Installation".
II. Assesse/respondent was also providing fabrication and dismantling services and according to the assesse same was not taxable as it is not covered by Erection, Commissioning and Installation services.
III. During course of audit, department contended that work related with fabrication and dismantling was also taxable services and accordingly service tax and penalty were payable.
IV. The allegation against the assesse/respondent is that they were not disclosing full value of the taxable service provided to their clients with the intention to evade the service tax. However, the appellant's contention is that in addition to erection, commissioning and installation, they were also undertaking the work relating to fabrication and dismantling, on which they were not paying any service tax as according to them, service tax was not payable on the charges for fabrication and dismantling.
V. On the basis of above fact and provision of section 76, 78 & 80, tribunal held that penalty should not be imposed.
Held:
We are unable to accept the submission. The Tribunal has recorded a finding of fact that the assessee did not have the requisite mens rea to evade payment of service tax. The assessee had duly paid the service tax with interest and also made full and true disclosure in the return. The finding so recorded is not shown to be in any manner perverse.
(Please click here for judgment)
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