Alert No 20100428A : Wednesday, April 28, 2010
Latest Amendments and Recent News Views & Stories
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Recent News Views & Stories:
What you wanted to know about the complexities of Cenvat
What are the obligations of manufacturer of dutiable and exempted goods and provider of taxable and exempted services under Cenvat Credit Rules 2004 - Rule 6?
Recent Important Judgements:
Service Tax: Condonation of Delay: Order in Original send by speed post evidence produced by the department - In view of the above, weighing both the evidences sought to be relied upon by the Department and those sought to be relied upon by the appellants, we hold that the decision of the Commissioner (Appeals) that the appellant has filed the appeal belatedly and beyond his power of condonation cannot be faulted.(para 5)
Service Tax: Condonation of Delay: Doctrine of equality before law: The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the State is the Applicant.
Service Tax: Condonation of Delay: Commissioner (Appeals) have limited discretion to condone delay - But learned Appellate Authority being a statutory in this case, is required to act within the in-built provisions of limitation under Finance Act, 1994. Accordingly, in fiscal matter, Section 5 of law of limitation is excluded from operation. Therefore, learned Commissioner (Appeals) was prevented to condone the delay when belated appeal was filed before him. Therefore, we are unable to consider the prayer made today for condonation of delay by learned Commissioner (Appeals) who as a creature of statute has limited discretion to condone delay. (para 6)
Service Tax: Refund - Review under Section 35E not required for issue of Show Cause notice to recover refund granted: From the above judicial authorities, it is amply clear that the erroneous refund sanctioned under an order can be recovered by invoking provisions of Section 11A of the Central Excise Act without taking recourse to provisions of Section 35E of the Act and filing appeal against the order pursuant to which the refund was initially sanctioned. In the circumstances, the impugned order has been passed in accordance with law; the same is upheld.(para 9.2)
Service Tax: Refund - Section 11A an independent substantive provision: Section 11A of the said Act empowers the revenue to initiate proceedings to recover the amount of duty erroneously refunded. For invoking jurisdiction under Section 11A, there need not be adjudication order or appellate order as the case may be and Section 11A is an independent substantive provision. (para 9.2)
Service Tax - Goods Transport Agency Service - Service Tax liability discharged before issue of SCN - Penalty - The original authority did not record any finding as to whether the appellant had evaded the service tax due by fraud, collusion, willful mis-statement or suppression of facts. There is no finding if the assessee was aware of its liability to pay the service tax under GTA and had knowingly refrained from paying the tax due. In the absence of a finding of intention to evade payment of duty, the assessee was entitled to the relief prescribed in the Circular by the CBEC. Vide the impugned order, the Commissioner (Appeals) has imposed penalties on the appellant finding intention to evade payment of service tax without any additional evidence. His finding that Shri M. Ravikumar's statement indicated that the appellant was aware of service tax levy, is without basis. The penalties are therefore liable to be set aside. Moreover, as per Section 73 (3) of the Act, when the assessee discharged liability to service tax along with applicable interest before issue of show cause notice, no proceedings should be initiated against the assessee. (para 5,5.1)
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