cestat ruling (service tax)...khosla profil pvt ltd vs cce (dated: march 12, 2014) st - refund -...

CESTAT RULING (SERVICE TAX)

2014-TIOL-917-CESTAT -AHM

M/s Orpat Marketing Pvt Ltd Vs CST (Dated: April 7, 2014)

Service Tax – Renting of Immovable Property – Waiver of pre -deposit and stay of recovery - 50 percent of tax liability already paid by the recipient as per Supreme Court Directions in 2011-TIOL-104-SC-ST . Pre -deposit of balance waived and recovery stayed till the disposal of appeal.

2014-TIOL-915-CESTAT -MUM

CCE Vs Bharat Sanchar Nigam Ltd (Dated: May 12, 2014)

ST - As for the same period, proceedings had already commenced against the respondent through a SCN in July, 2005, there was no need to issue another SCN in July, 2007 - Commissioner(A) rightly holding that the second SCN was void & illegal - Revenue appeal dismissed: CESTAT [para 6]

Also see analysis of the Order


Prabhu Marketing Services Pvt Ltd Vs CST (Dated: March 19, 2014)

ST – Refund – appellant wrongly paying service tax although they were not required to pay the same – in view of the Madras High Court decision in Natraj & Venkat Associates - 2010-TIOL-67-HC-MAD-ST the provisions of s.11B of the CEA, 1944 are not applicable – refund claim filed beyond one year cannot be held as time barred – order set aside and appeal allowed with consequential relief: CESTAT [para 3]

2014-TIOL-913-CESTAT -KOL

M/s Apeejay Surrendra Park Hotels Ltd Vs CST (Dated: February 18, 2014)

Service Tax - Stay / dispensation of pre deposit – Valuation of 'convention' service – dispute arising from denying the abatement under the notification No. 1/06-ST dated-1/3/2006 on the ground that the applicant had availed and utilized CENVAT credit on various input services.

Held: For period prior to March 2007, force in argument that merely because they would be eligible to avail credit in future, would not disentitle them from availing the

abatement under cited Notification, where the condition is specific on the availment of CENVAT credit and not laid down to eligibility of CENVAT credit in future - For the period March 2007 to April 2008, prima facie, CENVAT credit on various input services which have nexus with convention service has been availed; hence the applicant had not complied with the condition of Notification for the period April 2007 to March 2008 - No financial hardship has been pleaded – No case for full waiver; applicant to deposit Rs.25.00 Lakh (Rupees Twenty Five Lakh only) within a period of eight weeks; and on compliance, balance dues adjudged would stand waived and its recovery stayed during the pendency of the appeal.


J A Anand Vs CCE ( Dated: March 5, 2014)

ST - ST on reimbursements while providing C&F service - period of dispute is September 1999 to March 2001 - appellant paying ST on commission and not on gross amount received - upon pointing out by Revenue appellant paying ST on gross amount - matter adjudicated and penalties imposed - appeal before Tribunal seeking waiver of penalty on the ground that the matter was finally settled by LB decision in Sri Bhagavathy Traders. - 2011-TIOL-1155-CESTAT-BANG-LB and prior to this there were divergent views on the subject matter. Held: there is merit in the contention of the appellant, in view of the provisions contained in s. 80 of the FA, 1994, penalties imposed u/s 76 & 78 are set aside & appeal allowed: CESTAT [para 6]

2014-TIOL-904-CESTAT -DEL

The Gmtd Bsnl Vs CC & CE (Dated: February 3, 2014)

COD Application - delay in filing appeal - contention that appellant has a strong prima facie case on merits and that the Tribunal has passed several orders granting stay in substantially similar cases is not relevant in considering the issue whether there is a delay and there is a reasonable ground to condone the same: CESTAT

It is a well settled position in law that public authorities do not have an open invitation to litigate at a time of their choice and every litigant is requested to explain the cause for a delay in pursuing appellant's remedies, including in respect of fundamental rights - o-in-o was served on the authorized representative of appellant on 28.04.2010 so there is no justification in the submission made by the appellant that they were served the order on 09.11.2010 - no explanation offered for belated filing of appeal - no merit in COD application, hence dismissed - consequently, Stay as well as Appeal also rejected: CESTAT


Fibrex Industries Vs CCE (Dated: May 12, 2014)

ST - Tax paid along with interest before issuance of SCN - appellant should have been given the option to pay 25% of duty as penalty - also simultaneous penalties cannot be imposed u/s 76 and 78 of FA, 1994 - penalty u/s 76 dropped - Appeal disposed of:

CESTAT [para 7]



Khosla Profil Pvt Ltd Vs CCE (Dated: March 12, 2014)

ST - Refund - exporter availed input services and thereafter exported the goods - refund claim filed as per notfn. 17/2009-ST for the period of April 2009 to June 2009 - claim sanctioned but in review proceedings the refund was denied on the ground that appellant has not complied with condition of notfn. 41/2007-ST - appeal before CESTAT. Held: In case of Havells India Ltd. - 2013-TIOL-1732-CESTAT-DEL after considering the Board Circular 01.01.2010 it is held that the scheme prescribed under notfn. 17/2009-ST would be applicable even for such export taken prior to its issuance - queries/discrepancies raised by Commr(A) that condition of notfn. 41/2007-ST are to be complied with are not required to be fulfilled by appellant - order set aside and appeal allowed: CESTAT [para 7]


Mool Chand Sharma Vs CC (Dated: February 11, 2014)

Customs - Stay / dispensation of pre deposit – Misdeclaration and undervaluation of liquor, foodstuffs alleged; duty demand with interest and penalties on transporter, importer and CHA adjudged and agitated herein.

Held: The appellant laid hands on the stamp of Commissioner of Customs, ICD, TKD adopting unscrupulous means to make use thereof and forge document to make an attempt for clearance of the offending goods - Deliberate mis -declaration surfaced in respect of all the 3 B/Es and the appellant failed to defend before Adjudicating Authority - Entire evidence brought out by Revenue self speak against Mool Chand Sharma and Harsh Vasant - evidence gathered from Dubai Customs brought out fool proof case of deliberate mis -declaration to cause subterfuge to Revenue - Fraud is an act of deliberate deception of securing something by taking unfair advantage of another; a deception in order to gain by another's loss; and a cheating intending to get an advantage – No case for waiver of pre deposit – Pre deposit of Rs.40 lakh ordered in A.No.637/2010; and Rs.20 lakh each in A.No.638/2010 and A.No.693/2010.


Delhi Transport Corporation Vs CST (Dated: April 25, 2014)

ST - Sale of space for advertisement - non-payment of ST of Rs.7.19 crores - appellant contending that agreements entered with the advertisers contained a specific clause that the liability to service tax would be borne by the recipient of the service and because of disputes matter is under arbitration - legislation is not rejected or amended by private agreement - order passed in arbitration proceedings cannot shift the liability or inherence of service tax under the provisions of the FA, 1994 on the service recipient - appeal rejected: CESTAT



M/s Fodelio India Pvt Ltd Vs CCE & ST (Dated: April 15, 2014)

ST - downloading the software opera and selling it in Indian market - appellant contending that said activities would not get covered under the Intellectual Property Rights service category and would fall under Information technology software services which was introduced from 16.5.08 only and they have got registered accordingly and pay ST - demand for period 2006-2007 and 2007-2008 - extended period of limitation also challenged. Held: Introduction of new entry implies that services were not taxable prior to the same - Revenue came to know about the activities of appellant at least with effect from 16.5.2008 & the demand having been raised in the year 2011 by invoking the longer period of limitation is prima facie not sustainable - unconditional Stay granted: C ESTAT [ para 7]

ST - Appellant procuring orders for their overseas parent company from India and forward the same to them for execution - Such services are export of service as held by Majority decision in Paul Merchants Ltd. 2012-TIOL-1877-CESTAT -DEL - demand of ST not sustainable: CESTAT [ para 1]

2014-TIOL-896-CESTAT -MAD

Kallakurichi Co-Operative Sugar Mills Ltd Vs CCE (Dated: July 29, 2013)

Service Tax - Stay / dispensation of pre deposit - Labor for harvesting sugarcane arranged by applicant, viewed as taxable service under ‘Manpower Recruitment / supply' service in terms of section 65 (68) read with section 65 (105) (k) of Finance Act, 1994 - demands confirmed in adjudication with interest and penalties agitated herein. Held: In the absence of employer-employee relationship between the applicant and the labourers, prima facie, payment to the labourers is only routed through applicant without any consideration for services, if any, rendered - For le vying service tax, it is necessary that services should be rendered and there should be consideration received for such services - order passed by the Bombay Bench of the Tribunal in the case of Samarth Sevabhavi Trust distinguished on facts - waiver of pre-deposit of dues arising from the impugned order granted for admission of appeal along with stay on collection of such dues during pendency of the appeal.


M/s Shivam Gases Ltd Vs CST (Dated: February 18, 2014)

Service Tax - Bottling of LPG - Demands confirmed on the basis of figures booked in final accounts, under ‘Sales' as well as ‘Other Income - Disputed by applicant on the ground that VAT was discharged on sales and hence not liable for service tax - a portion of demand related to GTA disputed on the ground that service provider has already discharged tax and the same cannot be taxed twice.

Held: case relates to scrutiny of evidences in arriving at a conclusion on rendering of services of bottling LPG as well as sales of LPG - Appellant even though produced VAT audit report etc., but other documents like VAT returns, sales and purchase of LPG etc., could not be produced before the Commissioner to establish sale of LPG, because of internal disputes in the management of factory - in the case of Service Tax liability on GTA Service, the documents indicating the claim of payment of Service Tax by GTA service provider had not been verified/scrutinized by the adjudicating authority - Appellant should be given an opportunity to place all necessary evidences in support of their claims - impugned order set aside and the matter is remitted to the Ld. adjudicating authority to decide all the issues afresh, after affording a reasonable opportunity of hearing to the Appellant.


CCE Vs M/s Om Sai Engg Works (Dated: April 11, 2014)

ST - Penalty - proviso inserted in s.78 of FA, 1994 mandating that if penalty is payable under this section, the provisions of section 76 shall not apply, has only prospective effect: CESTAT [para 6]

ST - Penalties under both Sections 76 and 78 were imposable simultaneously on the respondents for failure to pay service tax for the period prior to 10.05.2008 although show cause notices were issued to them in the year 2010/2011: CESTAT [para 7]

ST - Revenue appeals filed where the amount is less than five lakhs are not maintainable in view of CBEC Circular F. No. 390/Misc./163/2010-JC dated 17.08.2011: CESTAT [para 8]



CST Vs M/s Menon Associates (Dated: January 2, 2014)

Service Tax - Export of service - Appellant provided marketing service to overseas principals for commission, discharged tax under ‘BAS’, realized that it amounted to export of service under Rule 3(1)(iii) of the Export of Service Rules, 2005, and filed refund claim for duty already discharged - Claim rejected in adjudication but relief granted by Commissioner (Appeals), agitated by Revenue herein.

Held: No dispute that the Respondent was providing service of marketing of products of their overseas Principals, who do not have any branch office or establishment in

India - classifiable under business auxiliary service taxable under Section 65(105)(zzb) read with Section 65 (19) of the Finance Act, 1994 - covered by clause (iii) of Rule 3(1) of the Export of Services Rules, 2005 - the first two conditions of Rule 3(1) read with Rule 3(2) are satisfied in the instant case - condition regarding export of service prescribed in Rule 3(2) is also satisfied inasmuch as payment of this service has been received in convertible foreign exchange and in this regard, Commissioner (Appeals) has given a clear finding that foreign exchange remittance certificates produced by the respondent shows all the transactions during the period of dispute along with corresponding credit advices - no reason to interfere with the impugned order.


B4U Television Network (I) P Ltd Vs CST (Dated: February 19, 2014)

ST – Rule 6(3) of STR, 1994 – plain reading of the rule shows that if the assessee has paid ST during the particular period for which they have not provided any service to the client and the said ST paid to the department has been either refunded to the client or not collected, in that situation, the excess payment of ST can be adjusted for future payments – if such adjustment is not allowed the provisions of the rule will become otiose and non-implementable – Revenue contention that the appellant should file refund claim is not acceptable – matter remanded to adjudicating authority to allow adjustment and pass appropriate order – appeal disposed of: CESTAT [para 8, 9]


M/s Dcw Ltd Vs CCE (Dated: May 5, 2014)

CENVAT - appellant, a manufacturer of textile goods and also a deemed output service provider of GTA service - utilization of CENVAT credit for payment of ST on GTA service - matter no more res integra - appellant entitled to utilize CENVAT credit : CESTAT [para 5]

2014-TIOL-882-CESTAT -BANG

M/s Nuware Systems Pvt Ltd Vs CST (Dated: September 5, 2013)

Service Tax – CENVAT Credit – Eligibility – Refund Claim – Appellant discharged service tax liability on car parking area and other maintenance charges levied by the apartment in respect of the space rented by appellant for rendering his output services – It is not disputed that the rented premises from which appellant is rendering his output services included the ground floor and the rent paid for the ground floor was also taxed under the category of renting-out of immovable property by the owner – Though appellant do not have an agreement with the wife of the owner of the premises, the invoices indicated that the appellant has discharged the Service tax liability for also on the rent paid to her – When appellant discharged Service tax liability and has got documentary evidence, credit cannot be denied – No reason for denying the credit, appellant is eligible for the credit and the subsequent

refund claimed – Order of Revisionary Authority is unsustainable and is set aside.


M/s Essar Projects Ltd Vs CCE & ST (Dated: January 27, 2014)

ST - Works Contract Composition Scheme - There is no explanation in Rule 3 to clarify that payment of ST shall also mean the situation where ST was payable but not paid by the assessee - it will not be correct to hold that intention behind the scheme should be seen when no such intention is coming out of the legal provisions - Appeal allowed: CESTAT



Harihar Infrstructure Development Corporation Vs CCE (Dated: May 5, 2014)

ST - Construction of Complex Service - Land owner executing a Power of attorney in favour of Applicant for entering upon the land for construction of complex - applicants constructing residential complex and also entering into agreements for sale of the flats with the prospective buyers and the payments were received on construction basis - as title of land is not transferred to the applicant they cannot be treated as owner of the land on which the complex is constructed - prima facie applicant has provided Construction of Complex Service which is taxable - Pre-deposit ordered: CESTAT [para 6, 7]



Aspinwall & Co Ltd Vs CCE (Dated: October 1, 2013)

Service Tax - Stay / dispensation of pre deposit – ‘GTA” service, Sec 65(105)(zzp) of Finance Act 1994 - Applicant had hired vehicles from independent vehicle owners and paid hire charges; issued bills at higher rates to the clients to whom the service of transportation was provided; and discharged service tax under the category of “Goods Transport Agency” after availing abatement of 25% of the value of the services billed to the clients – Dispute raised on admissibility to abatement on the differential amount, sought to be taxed by the department under “Business Auxiliary Service” as defined under section 65 (19) of Finance Act, 1994.

Held: Prima facie, there is no other Goods Transport Agency involved in this case and the applicant has procured the services of transporters for executing the contract with his clients - applicant is entitled to earn reasonable profit in the activity - Applicant had paid service tax on the total receipts under the category of GTA service after

availing abatement, therefore there is no need to call for any further pre-deposit for admission of appeal - collection of dues arising from the impugned order stayed during pendency of the appeal


M/s Coastal Projects Ltd Vs CCE&ST (Dated: January 7, 2014)

Service Tax - Works Contract - Valuation - Inclusion of “mobilisation advance” in the value for assessment under Section 67 of the Finance Act 1994 - contradictory stand taken by the appellant himself, which needs to be verified in remand proceedings - also, demand computed at 10% adv instead of 4% adv applicable to works contract unexplained, needing re -examination by original authority - two contracts, where the appellant did not exercise works contract would be assessed to duty in terms of Section 66 - Lower authority to examine the appellant's claim of exemption in respect of construction of roads, involved in one of the contracts, which stand exempted with retrospective effect.


M/s Matoshri Arts & Sports Trust Vs CST (Dated: March 3, 2014)

ST - appellants did not file any reply to the SCN nor appeared before the adjudicating authority in spite of notices issued - adjudicating authority, therefore, confirming demand and imposing penalties - appeal before CESTAT and appellant submitting that the demand is in respect of amounts which were received as donations and used for charitable purposes and in view of decision of the various High Courts demand is not sustainable. Held: since appellant had not bothered to file reply or appear before the adjudica ting authority, it is fit case for imposition of costs - appellant directed to deposit Rs.20,000/- with jurisdictional Commissioner - as order is passed ex parte and as per the appellant the issue is settled, order set aside and matter remanded to decide issue afresh - Matter remanded: CESTAT [para 8]


M/s Mahindra World City Jaipur Ltd Vs CCE & ST (Dated: March 20, 2014)

ST - Refund denied in respect of Input services relatable to SEZ area as also to the area outside SEZ - Percentage of Input services that is allowable in r/o SEZ area is to be computed by excluding the services that were provided exclusively to SEZ and in respect of which there is no dispute allowing refund - Matter remanded: CESTAT [para 5, 6]



The Mahadev Land Loosers Co-Op Soc Ltd Vs CCE & ST (Dated: February 26, 2014)

Condonation of Delay - Delay of 604 days is quite substantial in filing appeal - Address on acknowledgement card which indicates serving of impugned order on appellant and address given in the appeal memoranda are the same -Appellant's plea that they have not received copy of the impugned order and signature on the acknowledgement card is not theirs is not acceptable for simple reason that appellants have received the hearing notice from Tribunal bearing the same address which is given in the appeal memoranda - Appellant has not shown justifiable cause for delay - Delay not condoned and consequently appeal is dismissed.


M/s Mukand Ltd Vs CCE (Dated : March 6, 2014)

CENVAT – Rule 2(l) of CCR, 2004 – Garden Maintenance service is an input service as the same has been availed by the manufacturer of excisable goods in the course of their business activity – credit admissib le – order set aside and appeals allowed with consequential relief: CESTAT [para 3, 4]


M/s Maruti Suzuki India Ltd Vs CST (Dated : April 29, 2014)

Service Tax - Stay/Dispensation of pre -deposit - Demand of service tax under Franchisee service alleged to be provided to the dealers in respect of Maruti True Value, wherein the dealers are allowed to use proprietary system and business concepts owned and developed by the Petitioner - Following the earlier stay order in respect of the same Petitioner, pre -deposit of Rs 2 crores ordered.


M/s Munish Forge Pvt Ltd Vs CCE&ST (Dated : March 14, 2014)

Service Tax - Business Auxiliary service - Notification No 8/2005 ST - Conversion of rounds into handles by subjecting them to the process of cutting, bending, threading and finishing processes like shot blasting, hat treatment etc - It is not disputed that the appellant had intimated the department about availment of exemption under Notification No 214/86 and also the principal manufacturer had given an undertaking that the job worked goods would be used in the manufacture of finished goods which would be cleared on payment of duty - Activity of the appellant cannot be treated as Business Auxiliary Service - Even otherwise, appellants are entitled for the benefit of Notification No 8/2005 ST.


CCE Vs M/s CMPDI (Dated : January 15, 2014)

Service Tax – Condonation of delay – CMPDI agitated a demand before Tribunal on certain portion, while Revenue agitated the same on another portion – No cross objections were filed in respect of the departmental appeal; and CMPDI's appeal dismissed for want of COD clearance – attempts to have the appeal restored unsuccessful, CMPDI moves present prayer for condonation of delay and filing cross objections on departmental appeal.

Held: Being aggrieved by the impugned order dated 31.03.2008, the Department has preferred an appeal as well as the Application - At that time, the Applicants choose to file an appeal against the confirmation of the part of the demand against them and elected not to contest that part of the order in favour of them, by filing Cross Objection - application seeking condonation of the delay in filing the cross-objection contains no valid reason or cause justifying the delay in filing it - total number of delays occurred in filing the present Cross Objection, has also not been stated clearly nor any date chart is enclosed explaining the delay - It is barely asserted after narrating the facts that there has been delay in filing the Cross Objection against the Department's Appeal and the same be condoned - principle of condonation of delay is equally applicable to Cross Objection, also filed under Section 86 of the Finance Act, 1994 - In view of the Apex Court ruling in the Living Media India Ltd. case, the Public Sector Undertaking cannot be given a special status in applying the principle/guideline applicable to others for condonation of delay - Miscellaneous Application devoid of merit.


M/s Hindustan Zinc Ltd Vs CCE (Dated : March 3, 2014)

Central Excise - CENVAT Credit - Input Services - any service having nexus with the business of manufacture which has been used by a manufacturer would qualify as an input service. Insurance of plant and machinery, goods in transit, cash in transit and insurance of vehicles, and laptop, is an integral part of manufacturing business, as no manufacturer would carry on manufacturing operations without insurance of plant & machinery, cash in transit, goods in transit, vehicles & computers, etc. against any loss due to accident, natural calamities, etc. In view of this, the services of plant and machinery, transit insurance of goods, insurance of cash in transit, laptop, etc. have to be treated as an activity related to the business and would be eligible for cenvat credit.

Group Insurance : As regards, the Group Insurance of all Employees against sickness or accident, the same has been held as cenvatable by the judgements of Karnataka High Court in the cases of Stanzen Toyotetsu India (P) Ltd., Micro Labs Ltd. and M/s. Millipore India Ltd. Moreover, Group insurance of the employees against accident or sickness is the requirement of Section 38 of the Employees State Insurance Act, 1948, which a manufacturer has to comply with and accordingly, this service would have to be treated as a service used in or in relation to the manufacture of final products whether directly or indirectly, as a manufacturer would not be allowed to carry on manufacturing operations unless he complies with the requirements of Section 38 of the Employees State Insurance Act, 1948.

Judicial Discipline - Censure and Costs : The conduct of the Learned Commissioner amounts to clear judicial indiscipline and irresponsible exercise of adjudication function. Such exercise of adjudication powers in blatant violation of Apex Court's judgment in case of Union of India Vs. Kamlakshi Finance Corporation Ltd., reported in 2002- TIOL -484-SC-CX- LB requires to be censured as, if allowed to go unchecked, would lead to collapse of entire dispute resolution mechanism. Such adjudication orders burden not only the Assessee who has to incur avoidable expenses on challenging such order before the Courts/Tribunal, but also impose clearly avoidable costs for the Government, as the Tribunal's/Court's valuable time is also consumed in hearing appeals against such clearly erroneous and indisciplined orders, which should never have been passed. Cost of Rs . 5000 imposed



Preeti Logistics Ltd Vs CCE (Dated : March 3, 2014)

CENVAT – Rule 6 of CCR, 2004 – applicants were availing credit of service tax paid on common input services used in relation to providing exempted as well as non-taxable services – separate records not maintained, hence Revenue demanding 6%/8% of the value of the exempted/non-taxable services – appellant submitting that they had reversed the whole of the credit availed on the common input services and hence demand under rule 6 does not arise – demand confirmed & appeal filed before CESTAT. Held : in the case of Josts Engineering Co. Ltd. - 2013-TIOL-732-CESTAT-MUM Tribunal after considering the fact that the whole of the credit availed on common input service has been reversed set aside the demand – as this decision was not available at the time of passing the adjudication order, matter requires reconsideration by the adjudicating authority – matter remanded: CESTAT [para 7]


M/s Karnataka State Road Transport Corporation Vs CST (Dated : July 8, 2013)

Service Tax - Stay/dispensation of pre -deposit - Classification - Business Support Services - Prima facie, services provided by the appellant fall under the category of ‘operational or administrative services' within the definition of ‘Business Support Services' only after 01.05.2011, vide Board circular No. 334/3/2011-TRU dated 28.02.2011 - Waiver of pre-deposit and stay of recovery ordered.


M/s Apl (India) Pvt Ltd Vs CST (Dated : January 21, 2014)

Service Tax - Stay / dispensation of pre deposit – Business Support Service - In addition to providing service as steamer agent, appellant also collected certain amounts relating to Advance Manifest Charges (AMS), Bunker Surcharges (BS) and Currency Adjustment Factor (CAF) Charges from the Shippers in India and transferred

the said amounts to the Overseas Liner - Revenue viewed that the Applicant had rendered services under the category of 'Business Support Service', as defined under Section 65(105)(zzzq) of the Finance Act, 1994; raised demands and confirmed them, agitated herein. Held: Prima facie, the Applicant could show that Bunker Surcharges (BS) and Currency Adjustment Factor (CAF) Charges are nothing but the charges relating to Ocean Freight, which though collected by them on behalf of the overseas liner from the Indian shippers, are transferred in its entirety to the liners - 'Collection/Commission Charges' against these services rendered by the Applicant to the Overseas Liners, had been included in the 'Steamer Agent's Services' and appropriate service tax were duly dis charged by the Applicant - case for total waiver of predeposit of the dues adjudged; predeposit of all dues adjudged is waived and its recovery stayed during the pendency of the Appeal.


M/s C L International Hotels Ltd Vs CST (Dated : May 13, 2014)

ST - Refund - on the one hand the Asst. Commr. accepts the presence of the letter seeking refund in the office records but on the other hand observes that the same has not been receipted in the office - as to how the said letter travelled up to the concerned file and found its way therein is not understood - Matter remanded: CESTAT [para 8]

Refund - Limitation - Revenue authorities, including the Tribunal, being creature of statute are required to work within the four corners of the law and cannot go beyond it. Inasmuch as the refund, if otherwise admissible, has to meet the bar of limitation: CESTAT [para 7]



M/s Enchanted Woods Club Ltd Vs CCE (Dated: May 9, 2014)

ST - Services provided by a club to its members is covered by the principle of mutuality and would not amount of rendition of service by one person to another and therefore would not amount to a taxable service - matter no longer res integra - Order unsustainable, hence quashed - appeal allowed: CESTAT [para 6, 7]


M/s Vikas Wsp Ltd Vs CCE & ST (Dated: April 22, 2014)

ST - Appellant had engaged agents abroad for procuring export orders - Canvassing for export falls within the ambit of Business Auxiliary Service and since the service was received from abroad, the petitioner would be liable to remit service tax on the considerations remitted to foreign agents, under the reverse charge mechanism w.e.f 18/04/2006 in terms of Section 66A of the FA, 1994 - Appellant asserts that the

services of foreign agents were availed prior to 18/04/06 but consideration for such services received was however remitted after 18/04/2006 -appellant had failed to respond to SCN or to notices for personal hearing - that they have documentary evidence to substantiate their claim. Held - appellant to file application for taking the above additional evidence on record - as appellant has already remitted the assessed tax liability of Rs.4.90 crores, they are directed to deposit the interest due within four weeks - on such deposit, pre -deposit of penal liability waived & stay granted: CESTAT [ para 4]


India Infoline Distribution Co Ltd Vs CST (Dated: February 12, 2014)

ST - ST on the commission received on sale of RBI bonds and mutual funds - appellant paying ST before issuance of SCN and only challenging penalty - Board Circular 66/15/2003 clarified that exemption provided under notfn. 13/2003-ST is applicable only for commission agents dealing in ‘goods' - this Circular was quashed by AP High Court in case of Karvy Securities - 2004-TIOL-58-HC-AP-ST - so also Tribunal in P.N. Vijay Finance Services Pvt. Ltd. - 2008-TIOL-1683-CESTAT-DEL has held that mutual funds are to be treated as goods and entitled for exemption - in view of the confusion prevailing, there was reasonable cause for the failure on the part of the appellant in depositing ST - invoking s.80 of the FA, 1994, penalties imposed u/s 76, 77 & 78 set aside - appeal disposed of: CESTAT [para 7, 8]


M/s NRP Project Pvt Ltd Vs CST (Dated: July 18, 2013)

Service Tax - Stay / dispensation of pre deposit – Commercial or Industrial Construction services - abatement under Notification No.15/2004-ST and Notification No. 1/2006-ST denied in adjudication; tax demands with interest and penalty confirmed in adjudication and agitated herein. Held: Prima facie, abatement can be extended with respect to each project for which conditions in the notification are satisfied rather than all projects of an assessee taken together - No evidence adduced to suggest that credit was taken on inputs and capital goods used for projects on which abatement was claimed - demand based on the probability and not on records cannot prima facie be sustained - waiver of pre-deposit of adjudged dues granted for admission of appeal and its recovery stayed till the disposal of the appeal.


CST Vs M/s Ajuba Solutions India (P) Ltd (Dated: September 26, 2013)

Service Tax - Stay / dispensation of pre deposit - Business Processing Outsourcing Service - Refund under Rule 5 of the CENVAT Credit Rules, 2004 in respect of input services received prior to registration; claimed by appellant, rejected in adjudication; relief granted by Commissioner (Appeals); and agitated by Revenue herein.

Held: Rule 4 of service tax Rules prescribing registration inapplicable to person subject to service tax levy but applies to "person liable for paying the service tax" - Appellant was not liable to pay tax and did not take registration – No insistence for registration of units exporting their service fully - prima facie it appears that units fully exporting their services do not take service tax registration – Appellant's need to take registration arose only to claim refund - Karnataka High Court and the Tribunal has already given two final orders to the effect that refund under Rule of CENVAT Credit Rules cannot be denied for input services received prior to the date of registration – No dispute on receipt of the service, tax payment on such service and export of output services rendered using input service - No reason to depart from settled decisions - stay application filed by the Department is rejected.


CST Vs Essel Corporate Services Pvt Ltd (Dated: April 30, 2014)

ST - Management Consultant - s. 65(65) of FA, 1994 - Respondent is advising their group companies to handle a particular issue in a particular manner and they also undertake such discussion with various other organizations such as financial organizations, banks, BCCI, Govt. bodies etc. - such activity gets covered in the first part of the definition - second part of the definition is an inclusive one - respondent liable to pay Service Tax - extended period of limitation rightly invoked u/s 73(1) of FA, 1994 as respondent suppressed facts - penalties also imposable u/s 76, 77 & 78 of FA, 1994 - Revenue appeal allowed: CESTAT



M/s Xaviers Institute Of Management Vs CCE, C & ST(Dated: February 19, 2014)

Service Tax - Stay / dispensation of pre deposit - Early hearing for condonation of delay allowed, COD application allowed and stay application taken up for consideration - Dispute relates to demands confirmed under ‘Management Consultancy service' viewed by Revenue as being provided by applicant, a premier Management Insti tute, engaged in providing education to the students in the area of Management, and contending that their activity cannot fall under the purview of Managem ent Consultancy under the Finance Act, 1994.

Held: Prima-facie, at this stage, without entering into the dispute relating to activities rendered by the Applicant whether would result into taxable service or otherwise under the category of Management Consultancy service, which rests on appreciation of evidence adduced by both sides; the offer made by the appellant to deposit Rs. 42,18,396/- in addition to the amount already deposited, is sufficient for hearing the appeal - Applicant directed to deposit the said amount within a period of six weeks; upon compliance, the remaining adjudged dues would stand waived and its recovery stayed during pendency of the appeal.


M/s Kedar Constructions Vs CCE (Dated: April 21, 2014)

ST - Construction of Hostel for Women and Synthetic Track in University is prima facie not a ‘Commercial construction service': CESTAT [para 6] ST - construction of sub-station, control rooms, foundation walls for sub-station, modification of control room, putting & fixing up aluminium panels at sub-stations etc. is exempted in terms of s.11C Notification No. 45/2010-ST as it provides exemption to all taxable services relating to transmission of electricity till 26.2.2010: CESTAT [para 5]



CCE Vs M/s Vodafone Essar South Ltd (Dated: April 17, 2014)

CENVAT - Rule 2(l) of CCR, 2004 - Banquet service, CHA service, event management service, interior decoration, catering services, mandap keeper service and rail/air travel service, maintenance and repair service and cleaning service are Input Services as held by Tribunal in various cases - assessee appeal allowed and Revenue appeal rejected: CESTAT [ para 3, 4]


M/s Agarwal Motors Vs CCE (Dated: April 17, 2014)

Service Tax - Commission Agent paying service tax under Business Auxiliary Service - Demand of service tax on the amount of commission initially paid, but later reduced on account of service not completed - No ground to hold that the said reduction is only penal in nature and therefore the appellant has to discharge service tax on the full amount of commission initially paid - Issue is covered in favour of the assessee by the decision of High Court.


M/s Steel Industrials Kerala Ltd Vs CCE, C & ST (Dated: April 7, 2014)

Service Tax - Classification - Show-cause notice -Order passed by the Commissioner (Appeals) confirming the demand under old classification without considering the show-cause notice issued byhis predecessor proposing for re-classification, was not sustainable - Correctness of classification of the services rendered by appellant should have been considered -When show-cause notice was issued proposing different classification by predecessor of Commissioner (Appeals), rejection of the appeal on ground that the appellant did not make pre-deposit is not valid - Order is not based on merits - Matter remanded for fresh consideration on merits and consideration of the show-cause notice issued by predecessor should be ensured - Appeal disposed of.


M/s Concrete Movers Vs CST (Dated: April 30, 2014)

ST - Refund - Agreement with customer very clearly states that the rate mentioned are inclusive of all taxes and levies - moreover, appellants have been charging clients based upon the quantity of the concrete pumped through the equipment installed by them and the rate is fixed on that basis - as the charges are not in the nature of rental for a particular day or particular period but with reference to the work performed it has to be held that the rates quoted and amount collected are inclusive of service tax - claim hit by unjust enrichment - Appeal dismissed: CESTAT [para 7, 8]



CCE Vs Zim Laboratories Ltd (Dated: March 6, 2014)

CENVAT – Service Tax paid on Transportation of employees, taxi bills, photo copier, maintenance, repair and servicing, insurance, sales promotion activities are entitled for credit as they are Input services satisfying the definition contained in rule 2(l) of CCR, 2004 – matter no longer res integra in view of Bombay High Court decis ion in Ultra Tech Cement - 2010-TIOL-745-HC-MUM-ST – Revenue appeal dismissed: CESTAT [para 2]


Special Protection Force Vs CCE (Dated: July 11, 2013)

Service Tax - Stay/Dispensation of pre-deposit - Security agency service - Petitioner's contention that charges or fees levied by the body created under the State Government Act for providing security services would constitute Revenue of the state beyond the taxing powers of Union of India stipulated under Article 289 of the Constitution, is not sustainable - Conditional waiver of pre -deposit ordered.


Microspares Vs CST (Dated: October 23, 2013)

Service Tax - Stay / dispensation of pre deposit - Valuation - ‘Maintenance and Repair' services involving both supply of material and labor; duty paid only on labor component - Revenue viewed that value of consumables to be included for assessment, demands confirmed with interest and penalty. Held: Prima facie, force in the argument of Revenue that the goods involved are in the nature of consumables and not in the nature of parts or materials which can be sold - principle laid down in the case of Aggarwal Colour Advance Photo System applicable - considering the plea regarding limitation and the financial hardship, applicant to make a predeposit of Rs.10,00,000/- (Rupees Ten lakhs only) within a period of 8 weeks; upon compliance, predeposit of balance dues arising from the impugned order is waived for admission of appeals and there shall be stay on collection of such dues during pendency of the appeals.


M/s Mfar Holding Pvt Ltd Vs CST (Dated: April 7, 2014)

Service Tax - Non-Liability - Appellant's contention that Lower authorities have failed in appreciating the documents and evidence produced by them and in considering their claim of non-liability of tax on renting of immovable property service prior to 01.06.2007 and deductions of reimbursed expenditure in fixing the demand, is sustainable - Commissioner (Appeals) has gone in to deduction without making any observation on liability of the income for service tax while appellant's were claiming non-labiality - Order of Commissioner (Appeals) is set aside and matter remanded back to original adjudicating authority for fresh appreciation of evidence and consideration of all the claims of appellant.


Shri Bhupinder Singh Vs CCE (Dated: April 17, 2014)

ST - Appellant, a Proprietary unit was taken over by a Pvt. Ltd. company - appellant providing services of Site formation & clearance to M/s Northern Coalfields Ltd. requesting their client for change in the name of agreement - due to the delay in getting the name changed, appellant unable to deposit ST liability on account of non-payment by client in the name of the new company - later, appellant depositing the same along with interest - as there is no malafide no justification exists for imposition of penalty, in view of the provisions of section 80 of the FA, 1944 - appeal allowed with consequential relief: CESTAT [ para 4]



M/s Vishnu Saran And Company Vs CCE & ST (Dated: April 22, 2014)

ST -Appellant had provided construction services to UP Vikas Parishad for housing BPL persons and institutions for promotion of educational objectives -such services prima facie appear to be outside the ambit of "construction of residential complex" and "commercial or industrial construction" -Pre -deposit waived and stay granted: CESTAT [ para 7, 8, 9]



Inox Air Products Ltd Vs CCE (Dated: April 29, 2014)

ST - For providing maintenance service of Oxygen plant, appellant receiving electricity free of cost from client - electricity is an input for the manufacture of oxygen & not an input for the service provided by the appellant - question of adding the value of electricity for computing the taxable value of service will not arise - Appeals allowed: CESTAT



M/s Voltas Ltd Vs CST (Dated: March 6, 2014)

Service Tax - Stay / dispensation of pre deposit – Valuation - 'Repair and Maintenance services' provided, involving sale of spares on which VAT paid; demands confirmed by including the value of material, disputed herein.

Held: No dispute that the applicant had rendered the services of maintenance and repair work, that under the agreement, the value of spare parts and the value of services had been specifically mentioned, and that appropriate VAT has also been discharged on the value of spare parts / appropriate service tax has been paid on the taxable value in providing Labour job/ manpower service for the repair work - Prima facie, the dispute relates only in cases where the actual service charge at times becomes more as per the agreement, in comparison to value of the spare parts, charged for the respective month to the clients – Situation covered by the Surya Transformers ruling - prima facie case for total waiver of pre-deposit of dues adjudged made out; the requirement of pre-deposit is waived and recovery thereof stayed during the pendency of the appeal.


M/s Genon Dunkerley & Co Ltd Vs CST (Dated: February 26, 2014)

ST - Appellant collected tax of Rs.1,10,80,626/- from clients as provider of taxable service of Erection, Commissioning & Installation and the same was deposited only in the year 2006 although the same relates to year 2005 - there is no merit in the contention of the appellants that they are not liable to pay ST - as the appellant collected ST and retained the same without disclosing it to the Revenue, no infirmity in order of CST confirming demand and imposing penalties etc.- Appeal dismissed: CESTAT [para 5, 6]


Electronica Finance Ltd Vs CCE (Dated: February 28, 2014)

ST - Services of financial leasing provided to clients - Taxable event occurs when hire-purchase contract is entered - ST to be paid at rate prevailing at time of entering lease agreements & not at time of receipt of EMI - issue is settled by the order of the Tribunal in Art Leasing Ltd. 2007-TIOL-1493-CESTAT -BANG Appeal allowed: CESTAT [para 4, 5]



M/s Anand Sales Corporation Vs CCE (Dated: January 29, 2014)

ST – appellant engaged in purchase and sale of pre-paid SIM Cards and Recharge Coupons of various denominations for mobile phones of M/s Bharat Sanchar Nigam Ltd. (BSNL) – appellant entered into an agreement with BSNL termed as a "Franchiseeship Agreement" – alleging receipt of commission from M/s BSNL for selling pre -paid SIM Cards and Recharge Coupons to eventual users and that the activity comes within the ambit of Business Auxiliary Service , ST demand raised and same confirmed by lower authorities with interest and penalty – appeal before CESTAT. Held: since BSNL had been assessed and remitted service tax on its output service which was the taxable Tele-communication service and since service tax under that taxable category was discharged by BSNL, the same consideration out of which commission is paid to the appellant cannot be brought to tax under a different taxable category, as Business Auxiliary Service – Tribunal bound by the interpretation of Martand Food & Dehydrates Pvt. Ltd. as confirmed by the Allahabad High Court decision – appeals allowed: CESTAT [para 6]


M/s International Seaport Dredging Ltd Vs CST (Dated: October 28, 2013)

Service Tax - Stay / dispensation of pre deposit – Demands confirmed under Dredging Services; Manpower Supply and Maintenance & Repair under dispute herein – Appellant seeks exemption under Notification No.17/2005-ST and classification of dredging service under ‘Site Formation & Clearance'. Held: This Tribunal has already passed stay order waiving pre -deposit of dues, confirmed on the same activity in

previous stay order - proceedings also dropped for subsequent period - decision in earlier order adopted and pre -deposit of dues in this case waived for admission of these appeals, with stay on collection of such dues during the pendency of the appeals - miscellaneous applications for admission of additional evidence, seeking to bring on record adjudication order No.14 to 15/2013, Dated 28.02.2013 passed by Commissioner of Service Tax Chennai on the same issue as in dispute in these appeals, for a subsequent period, dropping the demand found relevant, and the Miscellaneous Applications are allowed.


R Sathish Vs CCE (Service Tax) (Dated: September 25, 2013)

Service Tax - Stay / dispensation of pre deposit – Appellant entered into commercial contracts for playing matches of IPL and ICL – Revenue viewed the consideration taxable under Business Support Services prior to 01.07.2010, and Brand support services under section 65 (105) (zzzzq) of the Finance Act 1994 wef 01.07.2010 – Tax demands with interest and penalty agitated herein.

Held: Prima facie , the service tax demand is on the entire consideration received by the pla yer which includes consideration for match fee for playing cricket - Nothing has been specifically brought on record to say that he has actually received consideration endorsement /advertisement / marketing of any goods as part of the contractual agreement though such clauses are seen in the agreement - "Business Support Service" by definition is not very explicit and some amount of haziness exists in the scope of the entry - when the activity gets covered by another entry for taxing the activity subsequently the Tribunal has held that for the period prior to enactment of the new entry the service was not taxable - it appears that consideration received by the applicant was not towards, "Business Support Service" - applicant has made out a prima facie case for waiver of pre -deposit of the entire amount of tax and stay on collection of dues arising from the impugned order till the disposal of the appeal.


Tamil Nadu Chamber Of Commerce & Industry Vs CCE (Dated: October 23, 2013)

Service Tax - Stay / dispensation of pre deposit - Club or Association service - Section 65 (25a), Section 65 (105) (zzze) and Section 66 of the Finance (No.2) Act, 1994 - Tax demand with interest and penalty under dispute herein. Held: Prima facie, the present case is covered by the High Court rulings in the Ranchi Club and Sports Club of Gujarat cases - predeposit of tax along with interest and penalty is waived and its recovery is stayed till disposal of the appeal.


Bpl Telecom Ltd Vs CCE, C & ST (Dated: January 3, 2014 )

CENVAT - ST paid on Group Health Insurance for the family of the employees can in no way be held to be relatable to the business of manufacture of an assessee – entire

credit cannot be denied - credit allowable on pro -rata basis to the extent of ST paid on Group health insurance of the employee – there is a need to identify the cost of insurance and the tax attributable to such cost in respect of family members and limit the demand to that extent – in the absence of relevant data, matter remanded to adjudicating authority for computation: CESTAT [ para 4, 6]

Limitation - Once the Commissioner (A) has held that no penalty is imposable u/r 15(2) of CCR, 2004 r/w section 11AC of the CEA, 1944, extended period cannot be invoked – demand survives for only the normal period of limitation: CESTAT [ para 5]



M/s Gujarat Nippon Enterprise Pvt Ltd Vs CST (Dated: January 9, 2014)

ST - Appellant provides Technical Consultancy & Management Services - they are entered into an agreement for providing services and also received some amount of advance - vide debit note the appellant raised the claim towards Management & Consultancy fees and also charged ST on both the companies - pursuant to cancellation of agreement, credit note was issued for cancellation of debit note including amount of ST - advance was also returned in due course with interest - refund filed of ST wrongly deposited - lower appellate authority rejecting claim - appeal to CESTAT. Held: It is evident from facts and circumstances that no service was rendered and the tax was paid mistakenly, which was claimed as refund after repayment of full amount of advance received along with amount of interest to the depositor - Order of adjudicating authority granting refund is correct and as per law - appeal allowed: CESTAT


Himalaya Plantations Vs CCE (Dated: January 7, 2014)

ST -Retrospective exemption -s.97 & s.98 of FA, 1994 - Maintenance of greenery on road divider is apparently covered under maintenance or repair of roads -so also, garden at Raj Bhavan forms a part of the government building -Commissioner(A) before ordering pre-deposit should have considered the applicability of these sections as the same goes to the root of the matter -order set aside and matter remanded to Commr(A) to hear appeal without insisting for any pre -deposit: CESTAT [paras 5, 7]



M/s Integra Software Services Pvt Ltd Vs CCE (Dated: March 3, 2014)

Service Tax - Refund of Service Tax on input services used for export of services - Commissioner(A) disallowed refund by merely mentioning that the services cannot be stretched to portray as an activity relating to business. The Commissioner (Appeals) cannot disallow the refund claim of the service without discussing in detail use of services item-wise. Hence, it is appropriate that the Commissioner (Appeals) should examine the use of the services on each of the items before deciding the case. Matter remanded.


M/s A K Dutta And Co Pvt Ltd Vs CCE & ST (Dated: January 7, 2014)

Service Tax - Stay / dispensation of pre deposit – Appellant claims that only construction service actually provided, but registration obtained for both Construction, Repair or Maintenance services; that although they have claimed the benefit of Notification No. 15/04-ST dated 10.9.2004 in their respective ST -3 Returns, there would not be any liability under Notification No. 12/2003-ST dated 20/6/2003.

Held: Demand has been confirmed based on ST-3 Retu rns, claiming the benefit of Notification No. 15/04-ST - the applicant never claimed the benefit of Notification No. 12/2003-ST Dated-20.6.2003 in their ST-3 Returns filed, nor in their reply to the show cause notice - Prima facie, the claim against Notification No. 12/03-ST dated 20/06/2003 could not be verified by the lower authorities as it was not claimed - applicants have not been able to make out a case for total waiver of dues adjudged - applicant directed to deposit 25% of the Service Tax amount within a period of eight weeks; upon compliance, balance dues adjudged would stand waived and its recovery stayed during the pendency of the appeal.


M/s Laxmi Electrical Works Vs CCE, C & ST (Dated: April 10, 2014)

Service Tax - Calculation - Exemption - Appellant's claim that payment of service tax is exempted for all the services relating to transmission and distribution of electricity prior to June 2010 as per the Notification No. 45/2010-S.T. dt. 20.07.2010 and there was wrong calculation of tax payable, is sustainable - Appellant is Prima facie eligible for the benefit of the notification - Matter remanded back to original adjudicating authority for fresh consideration as per the notification and for re -quantification.


M/s Gujarat Forging Ltd Vs CCE (Dated: April 4, 2014)

CENVAT - Credit of Service Tax paid on bills/ invoices issued by M/s Jayshree Enterprise, Rajkot who were providing Maintenance and Repairing Services of Diesel Engines cleared by the Appellant within one year warranty period - lower authorities taking view that such repair & maintenance of engines during warranty period would not fall under the category of input service as the scope of the credit is restricted to the services used at factory premises and not beyond that point.

Held: - it is an undisputed fact as apparent from the cost accountant's certificate that the value of such services already stands included in the assessable value of the Diesel Engine - the transaction value means the price actually paid or which are payable for the goods when sold and those includes servicing and warranty also - Admittedly the service and warranty is post manufacturing expenses which are to be provided to the customer after sale - Appellant is, therefore, entitled for credit of the Service Tax paid on expenses on such repair and maintenance during the warranty period, which is basically after sales charges - Orders disallowing credit are not sustainable – appeal allowed: CESTAT [para 9]

Limitation - issue of availment of credit on such repair and maintenance bills during warranty period was in the knowledge of the department since 2004 and three audits were conducted but no objections were raised - Secondly the issue involved is related to interpretation of te rm 'Input Services' - In this view of the matter, the demands raised against the Appellant by invoking extended period of limitation are not sustainable apart from merits of the case which are held in favour of appellant – Penalties also set aside for the above reason – appeals allowed with consequential relief: CESTAT [para 10, 11, 12]


CST Vs Globe Pvt Detective Bureau (Dated: February 27, 2014)

ST - SCN is based upon invoices issued by the respondents - respondents have not questioned any details given in respect of various invoices but have chosen to give certain figures year wise or consolidated for all the years - the quantum given before original authority and first appellate authority varies widely and do not appear to inspire any confidence - Commissioner (Appeals) has fallen into error in taking certain figures (year wise or consolidated for the total period) given by respondents instead of examining invoice wise/transaction wise details - Matter remanded to original authority: CESTAT



Dr Animesh Baruah Vs CCE & ST (Dated: January 3, 2014)

Service Tax - Penalty - Appellant liable for Service Tax on their activity of renting of immovable property - On receipt of notice, they obtained registration and discharged tax with interest; same appropriated but penalties dropped in adjudication - Order-in-Revision passed by Commissioner, imposing penalties, agitated in the instant appeal.

Held: while imposing penalty, Commissioner had merely observed that the appellants failed to discharge Service Tax as applicable and get themselves registered with the proper authority as they did not disclose the matter to the department before the case was booked is sufficient for imposing various penalties - evident from the agreements entered between the Applicants Appellants and their tenant that the said agreement was entered on 25.11.2005, while renting of immovable property became taxable w.e.f. 01.06.2007; As such the question of disclosing the activity of renting by the Appellants does not arise - levy of Service Tax on renting of immovable property was

itself in dispute during the material period - Commissioner has not imposed any separate penalty under Section 76, 77 and 78 of the Finance Act, 1994 - Composite penalty under different provisions of the statute is impermissible as held in the Precot Mills case - no fault with the original order holding that there were sufficient cause for not imposing various penalties; impugned order set aside.


M/s Katira Construction Ltd Vs CCE & ST (Dated: April 22, 2014)

ST - 'Construction of Complex' services - appellant had constructed 112 residential buildings for Surat Municipal Corporation and these were allotted to the families who are identified as Below Poverty Line based on lottery system - contract entered by the appellant with Surat Municipal Corporation specifically talks about the execution of property only for construction of building under 'JNURMP' scheme and they are paid by Surat Municipal Corporation – as it is not very clear from the records that Surat Municipal Corporation has charged any amount from these families, Prima-facie, the said construction activities of the appellant may not be covered under the taxable category of Commercial Construction – Pre -deposit waived and stay granted: CESTAT [ para 5]


M/s Nirantar Security Pvt Ltd Vs CST (Dated: May 9, 2014)

ST - Rule 6(3) of STR, 1994 - appellant adjusting excess service tax paid during April 2006 to September, 2006 due to computation mistake against its service tax liability for the month of October, 2006 - revenue disallowing such adjustment and raising ST demand for the period October 2006 to March 2007 and confirming along with interest and penalty - appeal before CESTAT against o-in-a. Held : reason for excess payment was mistake in computing service tax liability for the period April 2006 to September 2006, which is not disputed by the Revenue - There is no evidence on record that the appellant had received/ retained any amount in excess of the value declared by it in its Half Yearly Return for the period ending 30.09.2006 - Therefore, the question of refunding the value of taxable service and service tax thereon to any person (service recipient) did not arise - as the Appellant could not produce any documentary evidence appeal rejected by Commr (A) - Matter remanded to adjudicating authority - appellant to produce relevant documents: CESTAT [ para 4]


Blue Circle Speciality Chemicals P Ltd Vs CCE (Dated: April 28, 2014)

S .35C of CEA, 1944 - A firm which is not a human entity cannot remain on tour and seek condonation of delay - no reason for causing delay has been explained satisfactorily- Application dismissed - Appeal as well as stay application also dismissed: CESTAT [para 4]



M/s Recon Vs CCE (Dated: April 29, 2014)

ST - Appellant placing before Bench 19 bundles of documents comprising of contracts/invoices etc. running into around 2600 pages which they failed to produce before the adjudicating authority - it cannot be lost sight of the fact that the appellant had not been serious from the date of issuance of the SCN in responding to the allegations of the Department about short payment of service tax - second SCN was required to be issued for same period as appellant had not produced the relevant documents inspite of seve ral reminders and summons - matter remanded to the adjudicating authority for consideration of the evidences which were not placed before him - in the interest of Revenue appellant directed to make pre -deposit of Rs.25 lakhs: CESTAT [para 6]


2014-TIOL-762-CESTAT-DEL

M/s BSA Logistics Pvt Ltd Vs CCE (Dated: March 13, 2014)

Service Tax-Relevant date -provision of service or receipt of payment-The judgment of the Delhi High Court in Vistar Construction Pvt. Ltd. vs. Union of India & others - 2013-TIOL-73-HC-DEL-ST and in CST vs. Ratan Singh Builders Pvt. Ltd., dated 23/01/13 and 07/05/13 - 2013-TIOL-403-HC-DEL-ST lay down the principle that the appropriate rate at which tax is leviable is the date of occurrence of the taxable event and in the case of service tax is the date of rendition of the service. In view of this position in law, the assumption to the contrary by the learned primary and appellate Authorities that the appellant is liable to levy and collection of service tax, at the rate prevalent on the date of receipt of consideration for the taxable service provided, is fundamentally misconceived and unsustainable. Matter remanded to ascertain facts.


Ghatge Patil Auto Farm Machinization Vs CCE (Dated: January 7, 2014)

CENVAT - Appellant is an authorized dealer for sales and services of Hero Honda Motor cycles & is registered as an ‘Authorized Service Station' & “BAS” service provider - ST paid on GTA services which is incurred in respect of motor cycles etc. transported from the factory of the manufacturer to the appellants' premises is taken as credit - Revenue disallowing the same on the ground that the service is in respect of sales of motor cycles which is a trading activity and not related to servicing activity. Held - issue already covered by Division Bench decisions of Tribunal - GTA service is to be considered as an Input Service in view of Tribunal decisions in Shariff Motors 2009-TIOL-1571-CESTAT-BANG & Badrika Motors - 2014-TIOL-24-CESTAT -DEL -

appeal allowed with consequential relief: CESTAT [para 4]


M/s Semnox Solution Pvt Ltd Vs CCE & ST (Dated: April 4, 2014)

Service Tax - Additional grounds - Appellant have placed additional grounds before Commissioner (Appeals) which were not placed before original adjudicating authority - Rejection of appeal by Commissioner (Appeals) on the ground that considering the additional issues placed by appellant before him as additional evidence, was not appropriate,since appellant was submitting only additional grounds - Matter remanded back to original adjudicating authority for fresh consideration of all the issues - Appeal disposed of.


Bombay Intelligence Security (I) Ltd Vs CST (Dated: April 11, 2014)

ST - Security Services - ONGC is not paying to the assessee will not make any difference as far as liability of assessee to pay the service tax to the Government is concerned - appellant is liable to pay the service tax on the gross amount including salary, EPC, ESIC etc. - Appeals dismissed: CESTAT [para 19]



DNS Contractor Vs CCE (Dated: February 10, 2014)

Service Tax - Demand - industrial or commercial construction service - proceedings were initiated against the sub-contractor (appellants in the instant cases) for payment of service tax in respect of services provided by them to the main contractor; and contested herein. Held: As per various pronouncements of the Tribunal, if the service tax liability stand discharged on the full and complete value, the sub-contractor cannot be taxed again in respect of same services, on that part value in the services provided by them, although admittedly the levy can be fastened under the Cenvat Credit Rules 2004 - considering that when the principle contractor has paid the service tax on the entire value, exchequer cannot be enriched on account of double taxation - Revenue has already earned its share of service tax whether coming from the pocket of main contractor or from the pocket of sub contractor - the earlier Boards' clarifications which were relevant during the material period which stand relied upon the case of JAC Air services apply; concept of service tax unclear; there was a pattern in the industry for payment of service tax by the main contractor and entire situation is revenue neutral - Powers of legislation not usurped inasmuch as no provisions of Rule stand introduced by the Tribunal in the Cenvat credit Rules - Impugned orders set aside, subject to verification of fact of payment by main contractor, alone defined in scope of remand.


M/s Tata Steel Ltd (Growth Shop) Vs CCE & ST (Dated: February 20, 2014)

Service Tax - Stay / dispensation of pre deposit - 'commissioning and installation services' and 'maintenance and repair services' rendered by Appellant Unit to M/s. Tata Steel Ltd. (Steel Works) - Revenue viewed that they were two separate legal entities with independent central excise and service tax registrations; and that it could not be treated as a captively consumed service - tax demands with interest and penalties confirmed in adjudication and agitated herein.

Held: Core issue in the present case is whether Appellant and M/s. Tata Steel Ltd. (Steel Works) [service receiver] are different legal entities or one and the same entity for fastening tax liability - Prima facie, appellant has been appointed to provide services by floating tenders by service receiver through M/s. M.N. Dastur & Co., who has only been appointed for the purpose of inviting tenders and selection of bidders - Appellant and service receiver are not separately incorporated as companies under the Companies Act, 1956; that although separate PAN based registrations were taken, the entire liability relating to Income Tax and prescribed Income Tax Returns are filed from their Head Office on behalf of the units against a single PAN - prima facie, Applicant and service receiver are not two separate legal entities, but units of Tata Steel divisions - In absence of any contrary judgement placed by the Revenue to the decisions of M/s. Indian Oil Corporation Ltd. and Precot Mills Ltd. relied upon by appellant, prima facie view that Service Tax may not be payable for rendering service by one division to another division of the same legal entity - Applicant made out a prima facie case for total waiver of pre-deposit of dues adjudged - pre deposit waived and recovery stayed during pendency of the Appeal.


M/s Gopal Suppliers Vs CCE & ST (Dated: April 23, 2014)

ST - Delay of 580 days in filing the appeal - condonation sought on the ground that the Advocate who appeared before the Adjudicating Authority had not filed appeal despite handing over the papers to him - appellant had only forwarded the communications received from the Office of the Superintendent of Service tax, Rural Range, Bhavnagar to their Advocate - appellant was continuously reminded by the range authorities to pay the tax due or produce the stay order against o-in-o - appellant had kept quiet on all the reminders - appellant has not made out any case for condoning the delay - COD application dismissed - appeal dismissed: CESTAT [ para 5]


South East Central Railway Vs CCE (Dated: March 10, 2014)

ST - Demand of service tax for the period 2005-06 to 2009-10 on the ground that Indian Railways provided taxable service - in view of the provisions of section 99 inserted in FA, 1994 by the FA, 2013, whereby exemption is given in respect of

services provided by IR during the period prior to 01.10.2012, pre -deposit is waived & stay petition allowed - since order passed in 2012 before introduction of this section 99, matter remanded to Commissioner(A) to decide appeal afresh: CESTAT [para 6]


Maharashtra State Seed Certification Agency Vs CC & CE (Dated: April 11, 2014)

ST - Activities of Maharashtra State Seed Certification Agency cannot be considered as mandatory and statutory functions provided by a sovereign/public authority and, therefore, the benefit of the Circular 89/7/2006-ST is not applicable - in view of the fact that appellant is an organization controlled by the Government of Maharashtra, ingredients of proviso to Section 73 of the Finance Act, 1994 are not present - demand upheld for normal period - interest payable but penalties set aside - Appeal disposed of: CESTAT [para 11, 13, 14]

s.11D - SCN for period 1.7.2003 to 31.3.2006 issued on 27.11.2006 - part of the demand of tax under Section 11D (3) of CEA, 1944 would be overlapping with the demand under Section 73. We, therefore, confirm the demand which is within the normal period of limitation under Section 73 and the remaining amount collected during 1.4.2005 to 31.3.2006 under Section 11D(3) of the Central Excise Act, 1944 is upheld. The interest payable both under Section 75 of the Finance Act, 1994 and Section 11DD of the Central Excise Act, 1944 are upheld: CESTAT [para 14]



M/s Saint-Gobain Gyproc India Ltd Vs CCE (Dated: January 31, 2014)

Service Tax - Demand on ‘Intellectual Property' services from overseas under reverse charge in terms of Sec 66A of the Finance Act 1994 – Appellant manufacturer of Gypsum Board jointing compound, Bonding Adhesive, Gypsum Plasters (Chapter 68 and 25 of the schedule to Central Excise Tariff Act 1985), entered into an agreement with M/s. BPB Industries, England, for using their technology and technical assistance - department was of the view that the appellant were required to pay service tax as service recipient under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 on the amount being paid at the rate 3% of the annual sales, to M/s. BPB – demands confirmed in adjudication with interest and penalty, agitated herein.

Held: Article 8.2. of the agreement provides for recurring annual payment @3% of the annual sales turnover for technical services provided by M/s. BPB to the appellant - technical services being provided are expert advice and assistance with identification specification and preparation of liner board (paper) gypsum and other indigenous raw materials to be used by the appellant in India, the expert advice and assistance during installation, erection and commissioning of the plant and also in the subsequent modifications or addition to the manufacturing plant, expert advice and assistance with the manufacture of the products and jointing compounds and joint filler including occasional supervision and problem solving, expert assistance in marketing of the final products etc. - these services cannot be ca lled intellectual property service - It is only the amount paid in terms of the Article 8.1 of the agreement, which can be said to be for intellectual property tax as this amount was for the use by the Appellate of the

technical know how developed by M/s. BPB Industries, U.K. - show cause notice seeks to charge service tax on the amount paid by the appellant to M/s. BPB in terms of the Article 8.2. of the agreement, which is for technical assistance as specified in Annexure-II to the agreement and not for royalty charge and as such, the same would not attract service tax under IPR service - plea that the amount being paid is the royalty charge for use of their technology is not acceptable - demand for the period prior to 18.4.2006 is not sustainable in view of the Bombay High Court ruling in the case of Indian National Shipowners Association - the impugned order is not sustainable and the same is set aside


K Elango Packiaraj Vs CCE (Dated: October 10, 2013)

Service Tax - Stay / dispensation of pre deposit - applicant constructed the building of Tamil Nadu Police Housing Corporation Ltd. (TNPHCL), a wholly owned company by the Government of Tamil Nadu - tax demand with interest and penalty confirmed in adjudication under ‘Construction' service - Considering the decision in the case of Bismi Engineering Contractors and Others, pre -deposit of entire amount of tax, interest tax and interest along with penalty waived till disposal of the appeal.


M/s Shreeji Shipping Vs CCE & ST (Dated: April 9, 2014)

Service Tax – Port Service – Stevedoring services and lighterage services at minor ports in Gujarat – Not taxable under Section 65(105)(zzl) as port service in the absence of any authorization under Section 32(3) of the Gujarat Maritime Board Act, 1980.

Interpretation of Statutory provisions - Meaning of authorization by port - A statute has to be interpreted contextually and that it is unjust to decide or respond as to any particular part of law without examining the whole - to interpret in such a way as to harmonize laws with laws, is the best mode of interpretation. Contextually the expression authorized by the port can have no other meaning other than that what has been given to it under the laws governing ports in India. Such an interpretation is also consistent with the scheme of the Finance Act, which has borrowed the scope and ambit of several services with respect to the cognate legislation which govern such services.

In a case of referential incorporation, as in the case under Chapter V of the Finance Act, 1994, where provisions of different Statutes are incorporated in another Statute, then for ascertaining the scope of the provisions incorporated it is permissible to refer to the present Statute from which the provisions have been incorporated.

Limitation - a substantial portion of the demand is barred by limitation as the dispute in hand is one of interpretation and high judicial forums have at different time taken a different view - The Apex Court has in the case of Jaiprakash Industries Ltd. Vs. CCE 2002-TIOL-633-SC-CX-LB held that in such cases where different statutory authorities have taken divergent view extended period cannot be invoked.



Doiter Engineering Vs CCE & ST (Dated: October 4, 2013)

Service Tax - Demand - Appellant registered under ‘Consulting Engineer' service and complied with statute during 2000-2005 - for the period May 05 to Sept 09, the appellant collected service tax from his clients but did not pay service tax to the exchequer and did not file ST-3 Returns - demands confirmed in adjudication with interest and penalties, upheld by Commissioner (Appeals) and agitated herein.

Held: This is a case where the appellant had collected service tax from his customer, kept the money with him, and did file returns - cannot be treated leniently by waiving the total penalty imposed - however, considering the fact that appellant had paid tax amount along with interest before issue of show cause notice, the adjudicating authority should have brought to the notice of the appellant the option available for payment of 25% of tax demand as penalty under section 78 of Finance Act 1994 for final closure of the matter - Delhi High Court in the case of KP Pouches applicable - appellant to pay 25% of the tax demand as penalty within 30 days of receipt of this order, that shall be in full discharge of penalty and if the appellant fails to do so, full amount of penalty imposed by the lower authorities will have to be paid - penalty imposed under section 77 upheld.


M/s Patel Air Freight Vs CCE & ST (Dated: May 2, 2014)

CENVAT - Payment of bills made at discounted value by appellant to service provider - No evidence has been brought on record by the Revenue to indicate that reduced service tax has been paid by the appellant to the service provider - credit of full service tax shown to have been paid on the duty paying document will be admissible to the appellant - Appeal allowed with consequential relief: CESTAT [para 4, 5]



M/s Kirloskar Brothers Ltd Vs CCE & ST (Dated: May 1, 2014)

ST - Commissioner concluding that the entire amount of Rs.52,15,40,000/- related to installation services only and there were no civil construction services rendered by the Applicant to M/s. NTPC - Consequently he denied the benefit of Notification No.15/2004-ST and 1/2006-ST on the ground that the Applicant during the relevant time had availed CENVAT Credit on inputs and utilized the said credit in discharging the output services namely Installation services - such conclusion by the adjudicating authority is based on letter issued by M/s. NTPC dated 23.11.2011 - however, after completion of the adjudication proceedings, the Appellants have also obtained a letter from M/s. NTPC, whereby, it is clarified that the services rendered by the Appellant to them against the contract dated 29.03.2004, comprises of both installation services as well as construction services - In the face of two contradictory letters, verification/scrutiny by the adjudicating authority is essential - appellants' offer to make pre -deposit of Rs.20 lakhs seems reasonable - after compliance the Commissioner would proceed with adjudication afresh - all issues are kept open - appeal allowed by way of remand: CESTAT [ para 8]


M/s R L Fine Chem Vs CCE (Dated: September 3, 2013)

Service Tax - CENVAT Credit - Refund claim - Limitation - Appellant's refund claim filed on 31.03.2009, the last date for filing refund claim for the period July 2008 to September 2008 as per the Notification No.41/2007-ST, was returned for deficiency of documents and rectified claim resubmitted on 27.04.2009 was rejected on ground of limitation - View of Appellate Authority in rejecting refund claim on ground that the application should be within limitation period accompanying with all documents and hence the application filed on the last date is not correct in absence of the documents, is not sustainable - It is undisputed that assesse is eligible for refund claim and had resubmitted the application with all documents - Substantive benefit should not be denied to an assessee if conditions are fulfilled - Notification No.41/2007-ST as amended by the Notification No.32/2008-ST do not envisage rejection of the refund claim when it is due, if the exports are made and substantiated - Appeal allowed.


The Dukes Retreat Ltd Vs CCE (Dated : April 03, 2014)

ST - Mandap keeper services - Appellant availing input service credit and also claiming abatement in terms of notfn. 1/2006-CE - when they came to know that CENVAT credit cannot be availed they stopped taking credit from October 2009 - appellant should have brought the above to the notice of the department and voluntarily reversed the credit taken earlier - since that was not done, malafide intention is proved - demand not hit by limitation - appeal dismissed: CESTAT [para 6, 7]



Indian Oil Corporation Ltd Vs CC & CE (Dated : March 28, 2014)

ST – Petroleum product outlets owned by appellant are leased out to dealers for sale of petroleum products – appellant charging monthly licence fee – whether service is of ‘Storage & Warehousing' - All the operations of the outlets are under the control of the dealers and not of the appellant - It is not as if the deale rs bring their goods to the appellant for storing or warehousing and thereafter clear the goods so stored - Appellant only owns and leases facilities to the dealers for their use - Keeping in view the nature of transaction the service provided cannot be considered as storage and warehousing service – Demand set aside and appeal allowed: CESTAT [para 6]



Sterlite Industries (I) Ltd Vs CCE (Dated: September 27, 2013)

Service Tax - Stay / dispensation of pre deposit – CENVAT credit – credit availed on Creative and Art work services used for publishing in-house magazine; Garden maintenance at their corporate office at Mumbai; and Foreign exchange marketing analysis services availed by appellant - denied in adjudication on the ground that they did not satisfy the definition under Rule 2(1) of the Cenvat Credit Rules 2004;

affirmed by Commissioner (Appeals) and agitated herein.

Held: In the case of creative and art work service and garden maintenance services, there can be some doubt regarding eligibility because of contrary decisions - However, at this stay stage, the benefit should go to the applicant - In the case of foreign exchange marketing services, it is related to procurement of inputs and marketing of their final products and has close nexus with the manufacturing activity and business - amount relating to this service is the major amount disputed - Considering overall the facts and circumstances, including the case laws, requirement of predeposit of dues arising from the impugned order for admission of appeal is waived and there shall be stay on collection of such dues during pendency of the appeal.


M/s Jai Jawan Coal Carriers Pvt Ltd Vs CST (Dated: March 27, 2014)

ST - Cargo Handling Service - coal/mineral ore loaded by the appellant at the coal/mineral ore heaps and thereafter unloaded into the wagons was meant for transportation to its destination by railways and, therefore, the same would have to be treated as cargo and its loading into the tipper trucks and thereafter unloading into the railway wagons would have to be treated as cargo handling service - however, ST would not be chargeable on the amount charged for transportation, as even if this transportation within the mines is treated as GTA service provided by the appellant agency, the liability to pay service tax in respect of this activity would be of the service recipient: CESTAT [ para 6]

Limitation - SCN dated 23/4/09 is for the period from October 2003 to March 2008 and this demand has been confirmed by invoking extended period while the second SCN dated 15/10/09 being for 2008-2009 period is within time - during the period of dispute there were conflicting decisions in the subject matter - non-payment of service tax has to be treated on account of bonafide belief and, therefore, longer period of limitation would not be available to the department - matter is remanded to the Commissioner for quantification of service tax demand within normal limitation period: CESTAT [ para 7,8]

Penalty - non-payment of service tax by the appellant was due to bonafide belief on the part of the appellant that their activity is not taxable, therefore, in view the provisions of Section 80 of the FA, 1994, the penalty under Section 77 and 78 would have to be waived - Ordered accordingly: CESTAT [ para 8]


M/s Aahluwalia Contracts India Ltd Vs CCE (Dated: March 13, 2014)

ST - Appellant providing services of ‘Civil and industrial construction and construction of residential complexes' & receiving 10% amount in advance for each project as mobilization advance but they were discharging service tax liability on this amount as and when this amount was adjusted during the course of execution of the project, instead of paying service tax on the receipt of this amount – ST demand of Rs.42,26,430/- confirmed against the appellant for the period from 2006-07 to 2010-11 along with interest amounting to Rs.35,92,975/- & penalty of Rs.42.27 lakhs – Commr (A) directing pre -deposit of 50% of the ST demand & since not complied with appeal dismissed – Appeal before CESTAT.

Held: appellant have discharged ST liability on the mobilization advance and the dispute would be only as to whether, the service tax should have been paid as and when the mobilization advance was received or whether the same should have been

paid when the advance was adjusted during the course of execution of the project – since the dispute would be only of the interest for the period of delay in discharge of tax liability, order directing the appellant to deposit 50% of service tax demand of Rs.42,26,430/- is too harsh – order set aside and matter remanded for deciding appeal on merits without insisting for pre-deposit: CESTAT


Robert Bosch Engineering And Business Solution Ltd Vs CCE, C & ST (Dated: December 2, 2013)

Service Tax – CENVAT credit – Appellant availed credit on input services including software installed on equipment which was exported – Appellant also engaged in trading, but failed to reverse proportionate credit under Rule 6 of the Cenvat Credit Rules 2004; made good on pointing out – demand for recovery of irregular credit confirmed with interest and penalty in adjudication, agitated herein.

Held: As regards interest, after the decision of the Supreme Court, the matter is no longer res integra and appellant is liable to pay interest even if the credit is not utilized - That being the position, the demand for interest made by the appellant has to be upheld and is accordingly upheld - Having regard to the submissions, size of the appellant and also the fact that the amount involved is small and appellant voluntarily reversed the credit, this is a fit case for waiver of penalty by invoking the provisions of Section 80 of the Finance Act 1994 - appeal is decided by confirming the demand for wrongly availed CENVAT credit, interest thereon and setting aside the penalty imposed on the appellant.


Z Square Shopping Mall Pvt Ltd Vs CCE & ST (Dated: April 1, 2014)

CENVAT - Credit of service tax paid on input services used in the construction of immovable property – in view of Tribunal decision in Oberoi Mall Ltd. Vs. CST, Mumbai - 2013-T1OL-604-CESTAT-MUM & Sai Samhita Storages (P) Ltd. - 2011-TIOL-863-HC-AP-CX allowing credit, appellant has a prima facie case in favour – pre -deposit waived and stay granted: C ESTAT [ para 2]

ST – Renting of immovable property – appellant not disputing their liability, however, appellant submitting that adjudicating authority has confirmed the demand based upon the bills raised by them instead of quantifying the same on the amount received – if the rent received is taken into consideration, liability would reduce to Rs.24.94 lakhs out of which more than 50% has been paid – since in terms of the interim order of the Supreme Court 50% is required to be deposited and which has been complied, pre -deposit of balance amount is dispensed with – stay granted: CESTAT [ para 3, 4]


M/s Wolters Kluwer India Ltd Vs CST (Dated: April 23, 2014)

ST - Refund - if the services have not been received and the payment made for the said services had been adjusted between the Indian and Amsterdam Company, the said corresponding value of the services would not be liable to Service Tax - matter remanded: CESTAT [ para 7]

Refund - If services were not actually received, the Service tax paid by the appellant is to be refunded to them without raising the issue of unjust enrichment inasmuch as

it is the tax deposited by the appellant himself which is being sought to be refunded: CESTAT [ para 8]



Industrial Security & Protection Services Vs CCE (Dated: March 27, 2014)

ST - Whether for the period prior to 10.05.2008, penalty under section 76 & 78 of the FA, 1994 can be imposed simultaneously - Matter referred to Larger Bench of CESTAT [para 3]



M/s Khem Sales Agencies Vs CCE (Dated: March 12, 2014)

ST - Erection, Commissioning and Installation services - Since the appellants contracts with their customers are not indivisible works contract but are split contract giving items wise details of the value of supply items and value of various services and from the contracts/work order and the respective invoices, it is possible to determine the value of taxable services, assessment of service tax should have been done on this basis, instead of treating the gross amount received minus value of the goods supply items as gross amount received for the services of Erection/installation and Commissioning services and calculating service taxes on this basis after giving 67% abatement - Matter remanded to original authority: CESTAT [para 5]


CCE & ST Vs M/s S A Builders (Dated: March 21, 2014)

ST - Tax paid along with interest - both the lower authorities have held that provisions of section 78 having been invoked and penalty imposed, section 76 penalty may not be justified - Revenue appeal before CESTAT.


M/s Jubilant Enterprises Pvt Ltd Vs CCE (Dated: March 25, 2014)

ST - Refund - as the payment made by the appellant is not of Service Tax, the provisions of section 11B of the CEA, 1944 are not applicable and, therefore, refund claim is not time barred - Appeal allowed: CESTAT



M/s Federation Of Indian Chambers Of Commerce And Industry Vs CST (Dated: April 28, 2014)

ST - Club or Association Service - FICCI and ECSEPC are engaged in activities having objectives which amount to public service and are of a charitable nature & therefore, services provided by appellants to their respective members and consideration received therefor is not exigible to tax - Appeals allowed: CESTAT



M/s IT Action Gujarat Pvt Ltd Vs CST (Dated: March 20, 2014)

Service Tax – CENVAT credit – Refund under Rule 5 of the Cenvat Credit rules 2004 and Notification No.05/2006-CE (NT) dt. 14.03.2006 – Claims denied in adjudication, partial relief granted by Commissioner (Appeals) now agitated herein. Held: High Court ruling in the GTN Engineering case considered the Swagath Synthetics decision and held that the relevant date should be the date on which the export of the goods was made for which refund of CENVAT credit is claimed - since the same issue is considered by the Chennai High Court in GTN case, no reason to interfere in the impugned orders of the first appellate authority - The impugned orders to the extent they are challenged before the Tribunal are upheld and appeals are rejected to that extent.


M/s Saksoft Ltd Vs CST (Dated: September 24, 2013)

Service Tax - Stay / dispensation of pre deposit - Applicant registered for payment of service tax under the category of "Information Technology Service" under section 65 (105) (zzzze) of the Finance Act 1994 - On investigation, it was viewed that tax was not discharged under "Man-power Supply Service" for the period 2005-2009 - demands confirmed in adjudication, amounts paid toward ‘IT' and ‘MRS' appropriated; and agitated herein

Held: The issue whether the service actually rendered is "Man-power Supply Service" or "Information Technology Service" has to be examined with reference to each of the twenty contracts of two types involved - On a preliminary scrutiny, in one type of contract the receiver of service were organisations like banks which hire services of others to develop software or certain modifications software and the agreement specified tasks for development of software and the billing also was in terms of the completed part of the development project - The other type agreements suggest that the service provided is of "Man-power Supply" service, which is evident from bills raised on man-month basis and also from the fact that the receiver of service was also a software developer which would imply that the applicant could not have been developing the software - Keeping these aspects in view, the applicant is directed to make a further pre -deposit of Rs.25 lakhs (Rupees Twenty-five Lakhs only) within six weeks; upon compliance, collection of balance dues arising from the impugned order stayed till the disposal of the appeal.


M/s Infosys Technologies Ltd Vs CCE (Dated: March 27, 2014)

ST - Export of Services - Refund of accumulated CENVAT Credit - Procedure prescribed and the conditions to be fulfilled for claim of cash refund of accumulated CENVAT Credit under Rule 5 of the CCR, 2004 and for claiming rebate in respect of export of services in term of Rule 5 of the Export of Service Rules, 2005 are totally different - lower authorities mixing up the two issues - notfn . 12/2005-ST issued u/r

5 of Export of Service Rules, 2005 has no application in the present case - order set aside and matter remanded to original authority - appeal disposed of: CESTAT [ para 5]


CCE Vs M/s Vodafone Essar South Ltd (Dated: April 17, 2014)

Rule 2(1) of CCR, 2004 - Banquet service, CHA service, event management service, interior decoration, catering services, mandap keeper service, rail/air travel service, maintenance and repair services for the DG sets, air conditioner and UPS located in offices and show rooms are Input services and CENVAT credit is admissible of the ST paid on these services – revenue appeal rejected and assessee appeal allowed: CESTAT [paras 3, 4]

cestat ruling (service tax)...khosla profil pvt ltd vs cce (dated: march 12, 2014) st - refund -...

Documents