This weekly round-up analytically summarises the key stories of the Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) reported at taxscan.in, from March 13th to 19th, 2023.
The Mumbai Bench of Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), has recently, in an appeal filed before it, held that the Central Value Added Tax (CENVAT) credit on service tax credit paid by automotive dealers, would be allowable.
With V. S. Nankani, appearing on behalf of the assessee and Nitin M. Tagade, on behalf of the respondent, having placed their respective submissions before the tribunal, the Division Bench of S.K. Mohanty, (Judicial Member) and C.J. Mathew, (Technical Member), while setting aside the impugned order observed that the original Authority had held that no commission could have been paid by the appellant to the automotive dealer under Section 40 of the Insurance Act, 1938 and that such payment, which was recorded by the automotive dealers in their books of account as a commission, was illegal.
“Such findings were untenable on the question of the eligibility to avail Cenvat credit when tax had undisputedly been received by the Government from the automotive dealers”, the Bench further observed.
In a recent judgment, the Mumbai bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that refund of unutilised cenvat credit cannot be rejected merely on the ground that the same is not reflected in a service tax return.
With Warburg Pincus India Pvt. Ltd, the appellant, having challenged the order passed by the Commissioner (Appeals), GST and Central Excise, Mumbai-I, where the denial of Refund to the extent of Rs. 24,03,260/- was upheld, the single-member bench comprising of Mr Sanjiv Srivastava, Member (Technical), while allowing the appeal, observed:
“The refund claim could not have been denied for this reason. It was a stated/ unstated policy which governs the exports of goods or services across the globe that the local taxes should not be exported along with the goods or services exported.”
The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal, has recently observed that the statutory limitation period under Section 11B Central Excise Act, 1944, is not applicable to a service tax refund when the amount paid is not tax.
The aforesaid observation was made by the tribunal when, M/s OIL India Ltd, the Appellant, filed an appeal before the tribunal, thereby submitting via its counsel, Adv, Mr Krishna Rao, that the appellant had discharged Service Tax under reverse charge, on the disputed transactions under a mistaken apprehension, and hence that since it was never liable to discharge Service Tax, to begin with, the amount paid by it under a mistake of law, was never a ‘tax’.
With the appellant via its counsel, further adding to its submission that, the aforementioned being the situation, all trappings that apply to a ‘tax’, including that of limitation under Section 11B, of the Central Excise Act, are not applicable to the Appellant’s refund claim, the tribunal of PK Choudhary, the Judicial Member observed:
“The statutory limitation period prescribed under Section 11B of the Central Excise Act, is not applicable to the refund claimed by the Appellant since the amount paid by the Appellant is not a tax.”
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