Issue involved in this case is regarding the bona fide belief of the assessee during the relevant period. During the relevant period, the activity of receiving commission from the bankers for providing the help of identifying the purchasers of the vehicles and completing all the formalities was in dispute before the Tribunal. The said dispute got settled against the assessee. In my considered view, the appellant M/s. Rajesh Auto Finance/Shri Rajesh Biharilal Gandhi would have entertained a bona fide belief that the services rendered by them are not liable to service tax under the category of business auxiliary services.
Learned Advocate submits that lower authorities have also taken into account the Service Tax availed on the capital goods whereas the restriction of 20% utilisation is only in respect of the input service credit. He draws my attention to two precedent decision of the Tribunal in the same appellants case being BSNL v. CCE&C [2009] 21 STT 127 (Bang.-Cestat) and BSNL v. CCE [Final Order No. A/265/2011, dated 28-3-2011]. It stands held in the said decision that the restriction to use 20% of the credit in case of non-maintenance of separate Cenvat accounts for taxable and exempted services is only in respect of inputs service credit. Matter stands remanded to the lower authorities for segregating said credit falling on the input services as also on capital goods and to decide the matter afresh.
Appellants have filed a writ petition against the stay order dated 13.10.2011 passed by the Tribunal and Hon’ble Madras High Court had dismissed the writ petition. As the order passed by the Tribunal is merged with the order passed by the Hon’ble High Court, hence the Tribunal has no power to modify the stay order dated 13.10.2011. Further, we note that the vide order dated 19.12.2011 has granted time to make deposit as per the stay order passed by the Tribunal by 30.01.2012 and the appellants had not complied with the directions of the Hon’ble Madras High Court. Therefore, the appeal is dismissed for non-compliance with the provisions of section 35 of the Central Excise Act.
Since a substantial amount has already been paid and regarding the balance amount also the appellant claims to have paid but does not have the evidence in view of the destruction of documents in flood, I consider that the appellant has made out a strong prima facie case for waiver of pre-deposit and grant of stay. Accordingly, the requirement of pre-deposit of service tax demanded with interest and penalty is waived and stay against recovery is granted during the pendency of appeal.
RL is a tax resident of Mauritius and in support of this, tax residency certificate has been furnished. This fact has also been accepted by the learned DR in the written submission. It is also undisputed fact that, based on this tax residency certificate, the RL has applied for exemption certificate for grant of 100% DIT relief, which was granted by the Assessing Officer vide certificate dated 9-6-2000 upto the period of 31-3-2001 i.e. upto AY 2001-2002 (copy of which has been placed in the assessee’s paper book at page 5 filed on 8-11-2009). It was based on this certificate, that the assessee had sought tax relief in the return of income.
The argument that unless the capital gain is actually taxed in Mauritius the DTAC would not apply in the context of section 90(1) and section 90(2) of the Act, though attractive, cannot be entertained in view of the decision in Union of India vs. Azadi Bachao Andolan. Even though capital gain is not actually taxed in Mauritius, the question raised is seen to be concluded by the decision in Union of India vs. Azadi Bachao Andolan. If it wants to, it is for the revenue to canvass the question before the Supreme Court. This Authority is bound by that decision. Here, the assets proposed to be transferred come under paragraph 4 of Article 13 of the DTAC between India and Mauritius. The applicant being a tax resident of Mauritius in the light of the tax residency certificate produced by it, going by the decision in Union of India vs. Azadi Bachao Andolan, it has to be held that the gain that may arise to the applicant is not chargeable to tax in India.
It is alleged that the Banks or the officials of the Bank often misuse the provision of ‘The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002)”. It is also alleged that the Bank officials help some clients/borrowers using all technicalities and their expertise in financial matters. While the Bank officials help few, they tend to be very perfect and sincere in respect of other cases where there is enough security and where the default is negligible and can be corrected.
Whether on facts and circumstances of the case and in law, the ITAT was justified in deleting the disallowance made of royalty paid by the respondent to CAMI USA for distribution of software products in India without appreciating that the royalty had been paid on the amount of bad debts even where the software had not worked at all?”
After the amendment of Rule 6 of CENVAT credit Rules, 2004 by Finance Act, 2010, in view of the provisions section 73 of Finance Act, 2010, when an assessee gave a calculation of credit attributable to the inputs used in the manufacture of exempted products, the only option available to Revenue was to either accept the calculation or say what is wrong with the calculation and give Revenue’s calculation with proper basis and ask the assessee to rebut Revenue’s calculation. It was no longer open to demand 10% of the price or 5% of the price as the case may be of the exempted products. Therefore, we feel that the order has not been passed properly. Therefore, after waiving the requirement of predeposit for hearing the appeal, we proceed to decide the appeal itself.
