CESTAT RULINGS
Profit earned by vehicle dealer from selling second hand vehicle is not chargeable to tax under service tax
When a vehicle is purchased by dealer who subsequently sold them, it remains a transaction of sale and purchase of old vehicle. Refurbishing of old vehicle, repair and other activities undertaken by the dealer, while the vehicle was in their possession, are the activities undertaken as value addition by such dealer. Such activities cannot be treated as being done either for the seller or for the purchaser. It is being done merely to increase the value of the vehicle so as to get the maximum return out of it. Hence, there cannot be service element in the transaction and profit earned by the dealer cannot be subjected to tax under service tax provisions.
M/s Popular Vehicles and Service Limited v. Commissioner of Central Excise, Customs and Service Tax, Cochin (Bangalore CESTAT)
Salary paid to employee deputed in Indian company by the foreign parent company for business or other support activities are not chargeable to service tax
The global employees, deputed by foreign parent company, working under Indian company for business operations of software development, information technology and other related support services, are working as their employees. Indian company and employees are having employer-employee relationship and the same cannot be treated as manpower supply services by foreign company to Indian company. Accordingly, there shall not any charge of service tax under RCM on such salary paid, as the method of disbursement of salary cannot determine the nature of the transaction.
Honeywell Technology Solutions Lab Private Limited v. Commissioner of Service Tax, Bangalore Service Tax-I (Bangalore CESTAT)
GST APPELLATE AUTHORITY RULINGS
The export related refunds cannot be rejected due to minor procedural lapses or non-substantive errors or omissions which can be rectified subsequently
Where refund claim has been rejected on the grounds that the tax invoices issued by supplier did not contain address and GSTIN of the recipient, it has been held in terms of circular 37/11/2018-GST dated March 15, 2018, refund may not be withheld due to minor procedural lapses or non-substantive errors or omissions with can be rectified subsequently. The appellant was directed to furnish the rectified invoices duly authenticated by the supplier before authority for verification who may sanction the refund involved therein if found in order and admissible. Further, in case where the refund has been rejected on the ground that the supplier, where the transaction is covered under RCM provisions, is not paid within 180 days, it has been held that as per the second proviso to Section 16(2) the recipient shall not lose the ITC of tax paid under RCM even if the supplier is not paid within 180 days. Accordingly, the refund cannot be rejected on account of non-payment of consideration to supplier where supply is covered under RCM provisions.
M/s Baba Super Minerals Private Limited v. The Assistant Commissioner, CGST Division B, Jaipur (GSTAA Jaipur)
Detention of goods and vehicle on wrong mentioning of vehicle number on e-way bill
Where all necessary statutory requirement under the provisions of CGST Act and Rules was fulfilled except mentioning corrected vehicle number at the time of interception, though this mistake was corrected soon after it came to notice, there appears no ill intention to evade payment of tax and is just a technical mistake. As the appellant has made an error in mentioning the vehicle number and has also admitted that due to sudden change in vehicle plan by the transporter, vehicle number could not be changed. Since, the appellant has admitted its mistake, penalty of INR 10,000/- is levied and detention order is set aside.
M/s L.G. Electronics India Private Limited v. Assistance Commissioner, CGST Division B, Jaipur (GSTAA Jaipur)
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