Service Tax : New percentage-based pre-deposit law is applicable to appeals filed on or after 6-8-2014 and all pending appeals/stay applications filed prior to 6-8-2014 shall be governed by erstwhile law
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[2016] 65 taxmann.com 133 (Madras)
HIGH COURT OF MADRAS
Arafaath Travels (P.) Ltd.
v.
Customs, Excise & Service Tax Appellate Tribunal, (Southern Bench)*
M.JAICHANDREN AND MRS. S. VIMALA, JJ.
CIVIL MISC. APPEAL NO. 2769 OF 2015†
MISC. PETITION NO. 1 OF 2015
DECEMBER 11, 2015
Section 65(19), read with section 65(4) of the Finance Act, 1994 and rule 3 of the Export of Services Rules, 2005 - Taxable services - Business Auxiliary Services - Stay Order - Period 1-4-2011 to 31-3-2012 - Assessee was carrying on business as a General Sales Agent (GSA), in respect of Cargo Sales and Passenger Air Transport - For services of GSA, assessee earned Over-riding Commission (ORC) in foreign exchange - Department demanded service tax - Assessee argued that ORC was not taxable, as it amounted to export - On stay application, Tribunal directed pre-deposit of Rs. 20 lakh out of service tax demand of Rs. 55 lakh - Assessee argued that when service is exported and there is no liability at all, ordering pre-deposit was bad - HELD : Pre-deposit order was passed without considering prima facie merits as well as financial hardship aspect - Such a non-speaking order was set aside and matter was remitted back for consideration afresh [Paras 5 to 9] [In favour of assessee/Matter remanded]
Section 35F of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994 and section 129E of the Customs Act, 1962 - Appeals - Deposit of certain percentage of duty/tax demanded or penalty imposed before filing appeal - Pre-existing right of appeal cannot be destroyed by amendment - New percentage-based pre-deposit law is applicable to appeals filed on or after 6-8-2014 and all pending appeals/stay applications filed prior to 6-8-2014 shall be governed by erstwhile law - Since, in this case, appeal was filed on 21-2-2014, erstwhile provisions of section 35F in existence prior to 6-8-2014 would apply [Paras 4.6 to 4.10] [In favour of assessee]
Interpretation of Statutes : Presumption against retrospectivity
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[2016] 65 taxmann.com 133 (Madras)
HIGH COURT OF MADRAS
Arafaath Travels (P.) Ltd.
v.
Customs, Excise & Service Tax Appellate Tribunal, (Southern Bench)*
M.JAICHANDREN AND MRS. S. VIMALA, JJ.
CIVIL MISC. APPEAL NO. 2769 OF 2015†
MISC. PETITION NO. 1 OF 2015
DECEMBER 11, 2015
Section 65(19), read with section 65(4) of the Finance Act, 1994 and rule 3 of the Export of Services Rules, 2005 - Taxable services - Business Auxiliary Services - Stay Order - Period 1-4-2011 to 31-3-2012 - Assessee was carrying on business as a General Sales Agent (GSA), in respect of Cargo Sales and Passenger Air Transport - For services of GSA, assessee earned Over-riding Commission (ORC) in foreign exchange - Department demanded service tax - Assessee argued that ORC was not taxable, as it amounted to export - On stay application, Tribunal directed pre-deposit of Rs. 20 lakh out of service tax demand of Rs. 55 lakh - Assessee argued that when service is exported and there is no liability at all, ordering pre-deposit was bad - HELD : Pre-deposit order was passed without considering prima facie merits as well as financial hardship aspect - Such a non-speaking order was set aside and matter was remitted back for consideration afresh [Paras 5 to 9] [In favour of assessee/Matter remanded]
Section 35F of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994 and section 129E of the Customs Act, 1962 - Appeals - Deposit of certain percentage of duty/tax demanded or penalty imposed before filing appeal - Pre-existing right of appeal cannot be destroyed by amendment - New percentage-based pre-deposit law is applicable to appeals filed on or after 6-8-2014 and all pending appeals/stay applications filed prior to 6-8-2014 shall be governed by erstwhile law - Since, in this case, appeal was filed on 21-2-2014, erstwhile provisions of section 35F in existence prior to 6-8-2014 would apply [Paras 4.6 to 4.10] [In favour of assessee]
Interpretation of Statutes : Presumption against retrospectivity
