Arvind Pandalai ... vs State Of Gujarat And Anr. on 19 June, 2007
ii) L&T Vs State of Bihar (2004) 134 STC 354 (Pat)
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1 - 9 of 9 (0.23 seconds)State Of Orissa vs Maharaja Shri B.P. Singh Deo on 1 December, 1969
ii) State of Orissa Vs Maharaja B P Singh Deo 1969 (076) ITR 0690 SC
The crux of both the decisions is that the best judgement is not an arbitrary power. It has to be exercised reasonably on the basis of material on record, and not local knowledge or repute in regard to assessees circumstances. It is agreed that the best judgement is no an arbitrary power and has to exercised in a reasonable manner. In para 12 of the SCN it is clearly stated that detailed bifurcation of the consideration for billed and unbilled transactions was called from the appellants but they failed to give the same. Under these circumstances the revenue adopted the alternate method of approximation by apportioning it on the weight basis. I do not find that this method is arbitrary in any manner. The option to give details of consideration was open to the appellants but they did not avail the same.
M/S Paul Merchants Limited vs Cce, Chandigarh on 6 April, 2011
2.12.1 The appellants have also relied on the Decision of Tribunal in the case of Paul Merchant Vs CCE Chandigarh 2012 TIOL 1877 CESTAT DEL. In the said case the service under consideration was Business Auxiliary Service (BAS). BAS falls under clause (iii) of Sub-rule (1) of rule 3 of the Export of Services Rule, 2005 where the location of service receiver or provider is relevant. The appellants case is of Courier service falling clause (ii) of Sub-rule (1) of rule 3 of the Export of Services Rule, 2005, where the place of performance is the relevant criterion. In view of that the decision cited is not relevant to the case. Their claim that the recipient of service is located outside India or that the foreign exchange is received as a consideration is irrelevant.
M/S. Essar Projects India Ltd vs Commissioner Of Customs (Port), ... on 21 April, 2015
III) Essar Projects Vs CCE 2011 (31) ELT 188 where the assessee has been filing the service tax returns and audit is being conducted in disputed period, suppression cannot be alleged. It is noticed that the audit conducted in the instant case was for the period 2002-03 to 2006-07, which is before the disputed period. However in audit the appellants have clearly misrepresented facts regarding the adjustment of payables of co-loading against receivable for service provided. The assessable values in the service tax returns have been declared after netting payables against receivable as against the requirement of declaring the Gross amounts charged.
Zee Telefilms Ltd. And Star India Pvt. ... vs Cce on 11 March, 2004
ii) They argued that it was a question of interpretation and therefore penalty cannot be imposed. They relied on the decision of Tribunal in case of Zee Telefilms Vs CCE 2004 (166) ELT 34 wherein the Tribunal held if the dispute related to interpretation of statute and appellants had obtained service tax registration and filed returns, penalty cannot be impose.
Commr. Of Central Excise And Customs vs Advantage Media Consultant Siddharth ... on 19 March, 2008
2.14.1 The appellants argued that Service tax demand under reverse charge, even if applicable, would be revenue neutral. The appellants have claimed the benefit of cum-tax price. They have claimed that if the consideration received from DHLI is indeed treated as consideration for services provided by them to DHLI then that amount may be treated as Cum Tax amount. They relied on the decision of CCE Vs Advance Media Consultants 2008 TIOL 548 CESTAT wherein it has been held that the service tax being an indirect tax the consideration needs to be considered as Cum-Tax consideration. The said decision has been maintained by the Hon Apex court 2009 (14) STR J49 (SC). The argument of the appellants have force. The amount received by them is an all inclusive cost plus consideration in which everything is included. Thus it has to be treated as Cum-Tax amount and the demand needs to be quantified accordingly. The appellants have also relied on the following decisions in this regard
M/S Sdl Auto Pvt. Limited vs Cce, Delhi-Iv on 17 January, 2013
I) SDL Auto Pvt Ltd Vs CCE Delhi 2013 (294) ELT 577 where it has been held that when audit is conducted the audit officers are required to examine every issue in relation to audit period. The audit conducted in the instant case was for the period 2002-03 to 2006-07. This is beyond the audit period. Furthermore the explanation given by the appellants in respect of Network fee is incorrect and misleading. They have claimed that the Network fee is only in respect of billed export consignments. In respect of these consignments the DHLI qualify as co-loaders. They have not disclosed that Network fee is not for Co-loading operations, but the net amount received after adjusting co-loading fee with the amounts receivable from DHLI on account of services provided for Unbilled consignments. The assessable values in the service tax returns have been declared after netting payables against receivable as against the requirement of declaring the Gross amounts charged.
M/S. The Indian Hume Pipe Co. Ltd vs Cce (St), Trichy on 22 July, 2013
II) Indian Hume Pipe Co Ltd Vs CCE 2004 (163) ELT 273 where tribunal observed sufficient documents have been given to indicate the fact that no tax on freight is being paid. In the instant case there has been an express misrepresentation of the fact that Network fee is not same as co-loading fee. It is in fact an amount arrived at by setting off the amount receivable by the appellant against the co-loading fee payable by the applicant. The assessable values in the service tax returns have been declared after netting payables against receivable as against the requirement of declaring the Gross amounts charged.
Knit Foulds Pvt. Ltd. vs C.C.E. on 10 August, 1999
IV) The appellants have also relied on the decision of tribunal in case of Knit Foulds Vs CCE 2008 (230) ELT 442, wherein it has been held that non disclosure was due to lack of understanding of provisions of the notification, intention to suppress cannot be alleged. The said decision, the appellants claimed, has been approved by Hon High Court of Punjab and Haryana. In the instant case the appellants are well aware that they are netting the payable against receivables and costs. They have admitted it. There is no confusion in law that service tax is to be discharged on Gross amounts charged and not on net amount charged. Their argument seems to be that the services provided by appellants to DHLI in respect of Unbilled consignments are free of consideration is clearly mischievous and with intent to evade.
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