I. TRIBUNAL
16.
[2019-TIOL-3424-CESTAT-Del.] M/s Gurnani Infra Developers Pvt. Ltd. vs. The
Commissioner, Central Goods and Services Tax Date of order: 1st October, 2019
Balance sheet shows
an advance recoverable in cash as being paid towards the service tax, there is
therefore no question of unjust enrichment
FACTS
The appellant
received a taxable service and had been depositing the service tax under
reverse charge mechanism. Since they were not liable to discharge the liability
under reverse charge mechanism, they filed a refund claim. The claim was
acknowledged but it was held that the same was hit by unjust enrichment and
therefore the amount was to be transferred to the Consumer Welfare Fund.
Accordingly, the present appeal was filed.
HELD
The Tribunal, on
perusal of the balance sheet, noted that till the time of filing the impugned
refund claim, an advance recoverable in cash as being paid towards the service
tax is shown. There is, therefore, sufficient evidence otherwise on record to
falsify any charge of unjust enrichment. The order is accordingly set aside and
the appeal is allowed.
17. [2019
(29) GSTL 441 (Tri.-Del.)] IDP Education India Pvt. Ltd. vs. Commissioner of
C. Ex., Delhi-IV Date of order: 8th May, 2019
Conducting test does
not amount to commercial training or coaching services
FACTS
The present appeal
was filed by the appellant who operates the business of International English
Language Test Centres from various locations in India under license agreement with
IELTS Australia. The practice material was available on the website of the
appellant who was not engaged in training and coaching for preparation for the
said test. The test was required to be conducted in two modules, namely,
academic module and general training module. The appellant had sub-contracted
the services for conducting the tests. He received the fees for the test
directly from the students and remitted the respective share to IELTS Australia
and the sub-contractor after retaining certain amount. No service tax was paid
for the period April, 2012 to June, 2012. The Department passed an order
confirming demand of service tax treating the activity of the appellant to be
coaching and training services.
HELD
The Hon’ble Tribunal
held that the agreement clearly stipulated that holding of the IELTS Test by
the appellant was itself a skill and nothing in the agreement required the
appellant to coach or train the candidates. Besides, no consideration was
earmarked for such test. Conducting the test cannot be considered as imparting
skill or knowledge by any stretch of imagination. Therefore, the order was set
aside, thus allowing the appeal.
18.
[2019-TIOL-3393-CESTAT-Hyd.] M/s ArunExcello Foundation vs. Commissioner of GST
and Central Excise Date of order: 8th November, 2019
Excess payment of
service tax can be adjusted in any month or quarter within a reasonable time as
per Rule 6(4A) of the Service Tax Rules, 1994
FACTS
The appellants made
excess payment of service tax from April, 2015 to June, 2016. This was adjusted
in the return of September, 2016. A show-cause notice was issued to them
alleging that the adjustment of the excess service tax made is against the
provisions of law and not in order. Since the appeal was rejected by Commissioner
(Appeals), the present appeal was filed.
HELD
The Tribunal held
that the Rule intends to adjust excess payment in order to avoid the hassles of
a refund claim. When there is already an excess amount in the hands of the
Revenue, while making such adjustment there is no revenue loss and, in fact,
the Revenue is enriched by the interest on the excess amount till the
adjustment. The word ‘immediate’ being absent in the Rule, the only
interpretation possible is that the assessee can adjust the excess payment to
any succeeding month or quarter when he has service tax liability. Further,
such adjustment should be made within reasonable time. The adjustment is in
accordance with Rule 6(4A) of the Service Tax Rules, 1994 and therefore
allowed.
19. [2019-TIOL-3327-CESTAT-Kol.] M/s Etrans Solutions Pvt. Ltd. vs. Commissioner of
CGST and Central Excise Date of order: 30th July, 2019
When credit
attributable to exempted services is reversed, Revenue cannot insist that
option (3)(i) under Rule 6 of the CENVAT Credit Rules, 2004 of payment of 6% of
the value of exempted services should be followed by the assessee
FACTS
The assessee is
engaged in the provision of services as well as trading of goods. It maintains
a common balance sheet for its manufacturing as well as trading activity. The
short issue that arises for consideration is whether the assessee is required
to pay 6% of total sale value of the goods traded by it in terms of Rule
6(3)(i) of the CENVAT Credit Rules, 2004 when it paid the actual credit
attributed to the quantum trading sale in terms of Rule 6(3A) along with
interest following the option available under Rule 6(3)(ii) of the Rules.
HELD
The
Tribunal, relying on the decision in the case of M/s Mercedes Benz India
(P) Limited vs. Commissioner of Central Excise, Pune-I
[2015-TIOL-1550-CESTAT-Mum.], held that the main objective of Rule 6 is
to ensure that the assessee should not avail the CENVAT Credit in respect of
input or input services which are used in or in relation to the manufacture of
the exempted goods, or for exempted services. If this is the objective, then at
the most the amount which is to be recovered shall not be in any case more than
the CENVAT Credit attributed to the input or input services used in the
exempted goods. The Tribunal noted that the appellant reversed the
proportionate common credit taken on input services used in trading of goods
along with interest thereon. Therefore, Rule 6(3)(i) will not have any
application. The appeal is accordingly allowed.
