This weekly round-up analytically summarises the key stories of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) reported at taxscan.in during January 01 to January 07, 2023, the first week of 2023.
The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Ahmedabad Bench set aside service tax demand as there was a bonafide belief in eligibility of exemption being Governmental work.
The Coram observed that “We find force in the submissions made by the Advocate on this count. In the given set of facts and circumstances, the bonafide belief entertained by the Appellant cannot be questioned. Also, if the Appellant was liable to pay Service Tax, back to back, even the main contractor would have also been liable to pay the same. Whatever Service Tax, if paid by the Appellant, would have been back to back availed as Cenvat Credit by the main contractor anyway.”
The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that demand of duty is not permissible when no misdeclaration under Pan Masala Packing Machines Rules, Demand of duty not permissible.
While allowing the appeal, the Tribunal held that the Revenue cannot demand duty unless the orders of determination of production capacity-based duty have been reviewed and set aside the impugned Order.
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), held that Supply of ISO Tankers on lease by foreign suppliers is deemed sale, hence sales tax would not be leviable.
“The Commissioner failed to appreciate that since the translation involved sale or purchase of goods in the course of import of goods into India, no sales tax/VAT was required to be paid even if the transaction qualified as a deemed sale” the Tribunal added.
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), dismissed appeal on the ground that the rectification application was filed instead of appeal for alleged mistake in order passed by the Adjudicating Authority.
“The Additional Commissioner could have taken a possible view that the judgement of the Madhya Pradesh High Court would govern the issue relating to refund and examined the two applications in the light of the observations made by the Madhya Pradesh High Court. Such a view could have been corrected in an appeal, but not by way of an application filed for rectification of an alleged mistake” the Tribunal noted.
The Mumbai bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) held that the service tax refund shall be allowed to the builder on cancellation of booking by the flat buyer.
Allowing refund to the assessee, the CESTAT held that “Since Service Tax, in issue, received by the concerned authority is not backed by any authority of law, the department has no authority to retain the same.”
The Ahmedabad bench Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that the registration of Trademark in the name of a family member not bar to deny SSI exemption since all the family members are entitled to use the brand for the purpose of availing SSI exemption.
Granting relief to the appellant, Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) held that the appellant firm using the brand name of “Bintex” for which the appellant firm partner Shri Rajesh Harshdrai Punatar is one of the owner of the brand name “Bintex”, the appellant firm is eligible for exemption under Notification No. 8/2003-CE dated 01.03.2003.
The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Ahmedabad bench has held that the software activation services cannot be termed as “Business Auxiliary Services” and therefore, not subject to service tax as the assessee already discharged VAT liability in respect of the same.
Allowing relief to the assessee, the CESTAT held that “the amount collected by the Appellant from their customers against as “activation charges” of equipment/ software features are covered under the activity of sales of goods and not covered under the provisions of “Service” as defined in the Act. Therefore, we don’t find any merits in impugned order.”
The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Ahmedabad bench has held that an intermediary in the sale of space/ time for media agencies on commission basis is not liable to pay service tax under the head “Advertising Agency” under the provisions of Finance Act, 1994.
The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), validated filing of refund claim within limitation period by speed post. “Therefore the appellant has successfully established that they have filed the refund claim of the amount of Rs.2 lakhs within limitation in the year 2017 itself and accordingly the said issue is decided in favour of the appellant” the Tribunal noted.
The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), held that no service tax can be demanded on CHA Services when already paid on behalf of Customs House Agent.
The Tribunal of Sulekha Beevi CS, Judicial Member observed that “The appellant has been contending that M/s. Trinity Clearing and Shipping Agencies, Chennai had collected the tax from customers and discharged the service tax on behalf of the appellant. The department cannot collect service tax again on the impugned service.”
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