Jurisprudentiol - Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Work order given by appellant to transporters clearly indicates that it is for loading and transportation of clinkers and rate for transportation is far higher than that for loading - loading and unloading is incidental and, therefore, predominant and essential nature of service is transportation and not ‘Cargo Handling' - appellant to discharge ST under GTA services - Pre-deposit ordered: CESTAT

THE appellant are manufacturers of cement and the raw material is clinker, which is received by them by sea through ships. The said clinker is unloaded from the ships at the jetty and thereafter transported to their factory by availing services of transporters, namely, New Konkan Transport and M/s. Yashashree Transport.

Since the appellant did not discharge service tax liability under the category of GTA service a show cause notice dated 11/03/2010 was issued demanding service tax of Rs. 13,51,518/- along with interest.

Central Excise

Refund of excess interest - from a reading of s.12B of the CEA, 1944, it is clear that bar of unjust enrichment is applicable to duty only and not for interest - law does not provide any presumption of passing incidence of interest on the buyers - Appeal allowed: CESTAT

THE appellant before the CESTAT submits - that the amount of excess interest paid had shown in Balance sheet as receivable and the appellant has paid Income Tax also on the said excess amount of interest receivable and the onus is on the department to prove that what appellant is saying is incorrect. As the appellant has discharged their onus by proving that the burden of excess interest has not been passed on to the customers on the basis of entry shown in the Balance sheet, the appellant is entitled for refund.

See our Columns Monday for the judgements