cestat ruling (service tax) -...

CESTAT RULING (SERVICE TAX)

2015-TIOL-2541-CESTAT-DEL-LB

M/s Gaurav Pharma Ltd Vs CCE & ST (Dated: November 27, 2015)

Customs - Order of Provisional Release under Section 110A - Appeal lies to the Tribunal: "Whether an appeal lies before the Tribunal against the order passed by Commissioner (Customs) under Section 110A of the Customs Act, 1962 for provisional release of the goods or not".

Also see analysis of the order

2015-TIOL-2538-CESTAT-MUM

CCE & ST Vs Preeti Logistics (Dated: October 1, 2015)

ST - Tax liability in relation to auctioning of abandoned cargo - allegation is that excess amount recovered over and above the amount against the cargo auction is retained by respondent and shown in the Income side of their Balance -sheet and that this amount is to be considered as charges for rendering of storage and warehousing services. Held: Issue is no more res integra as Bench in the case of Gateway Distri Parks Ltd. - 2013-TIOL-2210-CESTAT-MUM, held that such amount is not taxable under sto rage and warehousing services - Central Warehousing Corporation - 2015-TIOL-2020-CESTAT-MUM has also considered the same issue – Revenue appeal is devoid of meri ts, hence rejected: CESTAT [para 3, 5, 6]


P R Enterprises Vs CCE (Dated: September 8, 2015)

ST - Service tax liability under the category of "Mining Services", for the period September 2008 to September 2009 was discharged after the same was pointed out by the authorities – penalties imposed – appeal to CESTAT against penalties. Held - There is no dispute as to the facts that the appellants are a partnership firm of farmers and are situated in remote area in Ratnagiri district and may not have had access to the legal opinion as to taxability of the services rendered by them – since they have discharged tax liability, appellant has made out a case for setting aside the penalties, by invoking the provisions of section 80 of the FA, 1994 – penalties set aside – appeal disposed of: CESTAT [para 5, 6]


Frischmann Prabhu (India) Ltd Vs CST (Dated: July 21, 2015)

ST - Appellants are providing consulting engineers services to their client mainly National Highway Authority of India, MMRDA and MSRDC and are discharging service tax liability on the amounts billed and received as consulting fees - during the process of rendering such services, appellant deputes their employees to various sites and recovers the actual expenses like travelling, accommodation, rent for office at site from the service recipients - It is the claim of the revenue that service tax liability needs to be discharged on these amounts also – demand confirmed by lower authorities – appeal to CESTAT. Held: Issue is no more res integra – in view of Delhi High Court decision in InterContinental Consultants and Technocrats Pvt. Ltd. - 2012-

TIOL-966-HC-DEL-ST holding that Rule 5(1) of the Valuation Rules, 2006 which provides for inclusion of the expenditure or costs incurred by the service provider in the course of providing the taxable service in the value for the purpose of charging service tax is ultra vires sections 66 & 67 of FA, 1994, the impugned orders are unsustainable and liable to be set aside – Appeals are a llowed with consequential relief: CESTAT [para 7, 9]


CCE Vs M/s Ashoka Buildcon Ltd (Foundry Division) (Dated: October 13, 2015) ST - Works Contract - Composition Scheme - No proof is forthcoming from the records that the earlier contract was cancelled and fresh contract signed on 06.06.2007 merely to avail the benefit of composition scheme which came into effect on 01.06.2007 - in fact, Revenue has not even cited the details of the old contract and the new contract and compared the two to come to the conclusion that they were same and the change of contract was not a bonafide act - Revenue appeal dismissed: CESTAT [para 4]

ST - While disallowing the benefit of composition scheme, adjudicating authority taking a view that respondent had paid ST under the scheme from June 2007 whereas registration taken only on 29.06.2007 - as per Rule 4 of Service Tax Rules, the regis tration may be applied for within 30 days of commencement of business, therefore, the show-cause notice has no basis: CESTAT [para 5]


2015-TIOL-2524-CESTAT-MAD

Sni Industries Vs CCE & ST (Dated: August 24, 2015) Service Tax - GTA Service - Denial of abatement - Sustainability - Appellant engaged individual truck operators not registered with service tax to transport granite from quarry to the factory and from factory to the port of destination and discharged 25% service tax on freight paid as service recipient - Appellant held is eligible for the benefit of notification No.32/2004 and is entitled for 75% abatement - Individual truck operators since not registered with service tax, question of availing input credit or capital goods credit does not arise - Consequently, fulfillment of condition of notification No.32/2004 also does not arise - Impugned order denying abatement and imposing penalty set aside - Revenue appeal has no merit hence is rejected. (Para 6)


Rpp Infra Projects Ltd Vs CCE (Dated: September 7, 2015) Service Tax - Stay/Dispensation of pre-deposit - Construction of residential complex service - Construction activities in Sri Lanka and construction of residential staff quarters, Tsunami houses, indoor stadium - Held not leviable to service tax in view of stay granted by CESTAT in similar case - Barring said services, assessee prima-facie not made out a case for complete waiver of pre-deposit of service tax on other construction activities - On facts, conditional stay granted. (Para 4)

2015-TIOL-2522-CESTAT-DEL

Oriental Carbon And Chemical Ltd Vs CCE & ST (Dated: August 27, 2015)

ST - Assessee company is having two units, one 100% EOU and one DTA Unit and procured capital goods - Name of 100% EOU is wrongly mentioned by assessee on Bill of Entry which has been explained - Payment towards said capital goods have been paid by assessee only and capital goods is physically available in premises of assessee - Therefore, merely due to wrong mention of name in Bill of Entry, Cenvat Credit cannot be denied.

As regards to Cenvat Credit of Rs.3,79,415/-, services namely Business Chamber Association Services, Horticulture Services, After Sale Services (commission paid to services) and Outward GTA Services are services in nature of services availed by assessee in course of business of manufacturing - Therefore, assessee is entitled to avail Cenvat C redit on these services.

Availment of Cenvat Credit on outward GTA services - As assessee have sold goods on FOR basis, they are entitled to avail Cenvat Credit on outward transportation services: CESTAT


Shakun Advertising Pvt Ltd Vs CCE & ST (Dated: October 21, 2015)

ST - Assessee is an Accredited Advertising Agency of Indian News Paper Society (INS) and provides advertisement both by electronic media and print media - They availed services of event management for providing their out put service - Assessee as an advertising agency procure spaces fit for advertisement through event management concerns - Activities as explained and borne out from records establish that event management services availed by assessee is related to output service of providing advertisement services - Denial of credit on ground that they are not registered for event management services is not tenable: CESTAT


CCE Vs Aurangabad Municipal Corporation (Dated: November 3, 2015)

ST - Aurangabad Municipal Corporation allowed APMSS to use logo "AMT"(Aurangabad Municipal Transport) on city buses that were operated by APMSS and received royalty - Agreement reflects that both parties are in a joint venture to run buses in the city; even logo is to be decided by both parties; no relationship of franchisor and franchisee; no representational right granted by Aurangabad Municipal Corporation to APMSS to provide any service identified with franchisor - no case for demanding ST - Order of Commissioner(A) proper and legal and needs no interference - Revenue appeal dismissed: CESTAT [para 5, 5.1, 6]



Sony Construction Vs CCE (Dated: June 5, 2015)

ST - Against adjudication order, the appellant before the Commissioner (Appeals) has not pressed in respect of demand of service tax but payment thereof paid suo moto by the appellant, therefore, their contest from stage of the Commissioner (Appeals) was only on interest and penalties - Therefore, prayer made by the appellant as regard the reduction of service tax, SSI Exemption under Notification No. 6/2005-ST cannot be considered at this stage: CESTAT [para 5]

ST - Penalties - Appellant is small time service provider - Though they did not pay service tax at the relevant time but after pointing out by the department, they immediately paid service tax that too before the issuance of show cause notice - appellant has made out a fit case for waiver of penalty not only under Section 73(3) but also under Section 80 of the Finance Act, 1994 - ST demand confirmed along with interest u/s 75 of FA, 1994 but penalties u/ss 77 & 78 are waived: CESTAT [para 5]


G Masilamani Vs CST (Dated: October 15, 2015) Service Tax - Condonation of Delay (COD) - Appeal filed with a delay of 291 days - Appellant submitted that his employee has received the order and by the time he came to know of the order, he was under treatment for infective hepatitis and has produced medical certificate - Appellant was not able to state the identity of the employee, his contact address or details as to whether he is still in service or not - Application was filed without any affidavit -Curious to notice that 21 days before expiry of limitation, appellant was under treatment and the wide gap of four months from the date of discharge from treatment till date of filing appeal, also does not satisfy the reason of delay - It's not the length of the delay but the cause of the delay with which the Tribunal is concerned - Cause stated does not appeal to common sense when there were no steps taken before or after expiry of limitation - Tribunal has experienced frequently the plea of leaving of an employee soon after an impugned order is received by a litigant and sudden discovery thereof after some time, to seek COD and the plea is untenable - It is surprising to note that when the demand is around Rs. 6 Cr., why appellant remained silent without seeking appeal remedy - Delay has caused extreme hardship to Revenue to realize it's dues - COD application is dismissed as the delay cannot be condoned and so appeal is also dismissed - Appeal dismissed. (paras 2, 4, 5, 6)


CST Vs Lason India Pvt Ltd (Dated: October 7, 2015) Service Tax - Adjudication - Law requires appellate authority to determine the issue involved,material evidence touching the issue to be tested, pleadings of assessee to be examined on the light of evidence and law and reach to conclusion - Without such a process being followed which is apparent on the face of the appellate order, Commissioner (A) reached to a bald conclusion and passed an unreasoned and non speaking order, merely because there are certain judgments that does not grant relief ipso facto to assessee - Such approach is contrary to elementary principle of jurisprudence- Such laxity does not get approval of law - Supreme Court's precedent decision provides guidelines as to the manner how judicial and quasi judicial orders are to be written - In view of the deficiency in Commissioner (A)'s order, matter sent back to him to act in accordance with law and to pass an appropriate order, in the light of the precedent - Application disposed of. (paras 1, 2, 3)


Narmada Vehicles Pvt Ltd Vs CCE & ST (Dated: August 31, 2015)

ST - Assessee engaged in business of trading and servicing of four wheeler motor cars as an authorized dealer - They availed Cenvat credit of ST paid on various taxable services for utilization towards payment of ST on aforementioned output services - Since trading activity was neither a taxable service nor an exempted service during relevant period, provisions of Rule 6 (3A) of CCR, 2004 will have no application and assessee is not required to pay/ reverse Cenvat credit as per formula prescribed therein - However, since the assessee is not permitted to take cenvat credit of ST paid on disputed services used for trading activities, credit so taken is liable to be reversed - As assessee was not in a position to maintain separate records with regard use of input services for taxable services and for trading activity, there is no contravention of Cenvat rules, and as such, imposition of penalty under Section 77 of FA, 1994 is not justified - In absence of any specific findings by authorities below regarding involvement of assessee in activities concerning fraud, collusion and willful mis -statement or suppression of fact with intent to evade Government revenue, penalty imposed under Section 77 and 78 of FA are set aside - Matter is remanded to Original Authority for quantification of ST liability attributable to trading activity: CESTAT

2015-TIOL-2498-CESTAT-AHM

Shri Janardan J Raval Vs CCE & ST (Dated: August 12, 2015)

ST - Rent-a-Cab service and Tour Operator services - Assessees were providing buses on rental basis to its various clients for transportation of their employees on contract basis - They submitted Contract Carriage Permit issued by Motor Vehicle authorities - So, demand of ST under Tour Operator services can not be sustained - As assessee has paid ST suo-moto before issue of SCN, imposition of penalty under Section 78 of FA, 1994 is sufficient and therefore, other penalties set-aside - Assessee is given option to pay penalty 25% of tax alongwith entire amount of tax and interest: CESTAT


M/s Plantech Consultants Pvt Ltd Vs CCE (Dated: October 13, 2015) ST - Adjustment of excess paid service tax - Even if it is considered that the procedure stipulated in rule 6(4A) of STR, 1994 was not strictly adhered to, at the most it was a procedural lapse and, in any case, the said amount could not be permitted to be retained by the government and, therefore, the adjustment is very appropriate and favourable to Revenue as compared to refund - Appeal allowed: CESTAT [para 6.2]

ST - Consulting Engineer Se rvices - Section 67(3) of the Finance Act, 1994 and Rule 5(1) and 5(2) of the Service Tax (Determination of Value) Rules, 2006 - Traveling expenses, Hostel accommodation and Telephone charges etc. incurred for visit to the site of their customers for colle ction of inputs and providing on-site services recovered by issue of separate bills over and above the taxable amount charged for the services rendered - whether addable in gross value. Held: In view of the Trade Notice No.53-C.E. (Service Tax)/97, any expenses, which is reimbursed in connection with the provision of Consulting Engineer Services was not required to be included in the gross value of taxable services - Appeal allowed: CESTAT [para 6]



Padmawati Communication Vs CCE (Dated: January 22, 2015)

ST - Application filed by assessee seeking re-call of order dated 27.11.2014 which endorsed a default clause stipulating dismissal of appeal on non-compliance of pre -deposit order - Assessee states that in light of Final Order of Rajasthan High Court dated 4.12.2013, appeal itself has become infructuous since assessee has deposited the amount of Rs.16,64,840/-, in terms of High Court's order - Order dated 27.11.2014 is recalled and appeal dismissed as infructuous: CESTAT

2015-TIOL-2492-CESTAT-KOL

Nirbhay Management Services Pvt Ltd Vs CST (Dated: February 25, 2015)

ST - Penalty - Assessee rendered services under category of "Manpower Recruitment or Supply" service - Adjudicating authority had considerably reduced demand amount initially issued to assessee in SCN - In confirming demand, adjudicating authority has no where recorded any finding about suppression of taxable value - No basis in confirming penalty after 19.04.2006, in absence of any observation about mis-declaration or suppression of taxable value - No merit in impugned order, hence set aside - Appeal allowed: C ESTAT


Bandedkar Brothers Pvt Ltd Vs CCE (Dated: July 21, 2015) ST - Appellant filed refund claim of Rs.1,56,732/- on 23.05.2008 in respect of services received by them and used for goods exported in December 2007 - Claim rejected on the ground that the same is beyond the period of sixty days as stated in the Notification No. 41/2007-ST dated 06.10.2007 - Appellant submitting that revised limitation period was introduced by amending Notification No. 32/2008 dated 18.11.2008 in terms of which the words "60 days" were substituted by the words "six months" from the end of the quarter for filing the refund claim. Held - Tribunal in the case of Essar Steel Ltd. has taken a view that the second para of notification relates mainly to procedural aspect and word substitution has to be treated as existing in the original notification & accordingly held in favour of the assesse - reasoning given in the judgement in Essar Steel will hold field and has to be followed - order set aside and appeal allowed with consequential relief: CESTAT [para 6, 6.2]


M/s CMS Computers Ltd Vs CST (Dated: September 8, 2015) ST - Appellant is not contesting the service tax liability and the interest thereof on the ground that they had paid the same and their Grounds of Appeal are directed only towards contesting the penalties imposed by the adjudicating authority. Held: It is not disputed that Appellant had mis -declared the taxable receipts in respect of the transactions which were declared by them to the authorities while filing ST -3 returns - This act itself indicates that the appellant had ulterior motive in suppressing and mis -declaring the taxable transactions - conduct of the appellant is unbecoming of an assessee who is supposed to comply with the provisions of law and more so in this case as the appellant was a registered unit with the authorities - impugned order which imposes penalty under Section 78 is correct and does not require any interference – Appeal disposed of by upholding tax liability, interest and penalties: CESTAT [para 6, 6.1, 6.2]


CST Vs Dalal and Broacha Stock Broking Pvt Ltd (Dated: September 21, 2015) ST - Revenue filing application for staying the operation of the order passed by Commissioner(A) - It is held in the case of Enam Securities Pvt Ltd. - 2014-TIOL-2205-CESTAT -MUM that sale of RBI Bonds on commission basis would not be liable to service tax under "Banking and other Financial Services" for the period prior to 10/09/2004 - Commissioner(A) following the above order, hence there is no reason to stay the same - Application dismissed: CESTAT [para 3]


M/s Indian Institute of Technology (IIT) Vs CST (Dated: October 14, 2015) ST - CENVAT - Appellant is a reputed Technical Education Institute of Government of India, therefore, there cannot be malafide intention for the reason that there is no individual who can be benefitted by taking wrong CENVAT credit - Appellant reversing CENVAT credit along with interest - Appellant is one single entity and carrying out various activities related to education as well as scientific analysis simultaneously where some of the services are taxable and some are exempted or not liable to service tax - appellant have declared the entire CENVAT credit availed by them to the department - In view of this fact, the appellant has made out a fit case for waiver of penalty u/s 76 by invoking Section 80 of Finance Act, 1994 - However, there is failure on the part of the appellant inasmuch as they have not maintained separate accounts, therefore, they are liable for penalties under Section 77 and Rule 15(3) of CCR, 2004 - Appeal partly allowed: CESTAT [para 6, 7]



Inox Air Products Ltd Vs CCE (Dated: September 08, 2015) Service Tax - Recall of stay order - Jurisdiction of CESTAT - Appeal dismissed for non-compliance with the pre-deposit order within the due period - No apparent and manifest mistake on record warranting exercise of power to recall the order - However, considering the plea appellant allowed additional period of 4 weeks to comply with the stay order - Miscellaneous applications rejected. (Para 8)


Actavis Pharma Manufacturer's Pvt Ltd Vs CCE & ST (Dated: August 24, 2015) Service Tax - Waiver of Pre-deposit - Manufacture of bulk drugs - Scientific or Technical Consultancy service - Commercial production of new drugs carried out in India with beneficiary located in India - No prima-facie case made out for waiver of pre -deposit - Mandatory pre -deposit in terms of Arjun Industries Ltd held applicable - Pre -deposit ordered. (Para 4)


M/s Ambejogai Peoples Co-Operative Bank Ltd Vs CCE (Dated: May 11, 2015)

ST – Notfn. 29/2004-ST - Overdraft facility, cash credit facility, discounting of bills etc. are not ‘exempted service' as defined under rule 2(e) of CCR, 2004 – Revenue alleging that the output services being partially exempted appellants were required to either maintain separate accounts or pay an amount of @ 6% under Rule 6(3) on the exempted portion of the service – appellant disagreeing with Revenue view but reversing entire common input service along with interest and contending that this amounts to non-availment of credit and, therefore, the provisions of Rule 6(3) of CCR, 2004 are not attracted - Matter remanded for verification of quantum of reversal: CESTAT [para 4


2015-TIOL-2470-CESTAT-ALL

Amit Pandey Physics Classes Vs CCE & ST (Dated: September 18, 2015)

ST - Assessee is registered under category of "Commercial Coaching and Training Institute" as a proprietory firm and realized some amount in financial years 2007-08 and 2008-09 respectively but did not declare in their ST-3 returns nor paid the ST - When tax is not paid on due date, ST which is determined by CE Officer in terms of legal provisions is total ST which is payable - If some amount of tax is paid before issuance of SCN, it does not mean that it is not to be assessed or determined under an order - However, same may be appropriated under the order - Assessee was aware of obligations under ST law because initially he had taken registration from department but had surrendered the same - No merit in appeal and same is dismissed: CESTAT


CCE & ST Vs Arora Construction (Dated: September 17, 2015)

ST - Benefit of 67% abatement under Notfn 15/2004-ST - Issue of availability of 67% abatement is no longer res integra in light of M/s Bhayana Builders Pvt. Ltd. 2013-TIOL-1331-CESTAT-DEL-LB wherein it is held that even when value of material supplied free of cost by service recipient is not included in assessable value, abatement of 67% under Notfn 15/2004-ST, 1/2006-ST is available - After allowing 67% abatement, impugned demand would reduce to about one third of amount confirmed by primary adjudicating authority - Involving relatively small amount of ST extension of benefit of Section 80 ibid by Commissioner (A) can scarcely be said to be arbitrary or unreasonable: CESTAT


M/s Tata Steel Ltd Vs CST (Dated: November 4, 2015) ST - Appellant borrowing, by way of 'syndicated loans' for international acq uisition and capital expansion, from various overseas banks - Arrangement fee paid to various banks abroad is taxable under reverse charge under 'Banking & Other Financial services' from 18.04.2006: CESTAT by Majority



Northern Coal Fields Vs CC & CE (Dated: September 16, 2015) ST - Goods Transport Agency service - Assessee engaged in mining and sale of coal - Transporter does not issue consignment note or any other document showing quantity, distance, weight and transport charges payable and they do not transport coal or any other goods outside mining area - Since there is no issuance of consignment note by transporters who provided services to assessee, there is no rendition of GTA service legitimizing levy and collection of tax under that category - Assessee is not liable to ST, interest and penalty under category of GTA - Appeal allowed: CESTAT


Beekay Engineering Corporation Vs CCE (Dated: September 4, 2015) ST - Demand confirmed alongwith interest and penalties on the ground that assessee is not eligible for 67% abatement under Notfn 15/2004-ST because it had taken cenvat credit paid on various input services - Assessee contends that it has reversed proportionate cenvat credit and interest - As per Hello Minerals Water (P) Ltd. 2004-TIOL-57-HC-ALL-CX, reversal of modvat credit amounted to non taking of credit inputs - Appeal allowed: CESTAT


Reliance Industries Ltd Vs CCE (Dated: August 13, 2015) ST - Notfn. 4/2004-ST, 9/2009-ST - Refund - Provisions of s. 26 of SEZ Act, 2005 are conferred with a primacy that cannot be denied, diluted or denigrated owing to delay in devising a facilitative mechanism that was agreeable to Revenue - notification 9/2009-ST is, undoubtedly, the operational procedure put in place for implementing the provision in the SEZ Act, 2005 granting exemption of service tax for authorized operations - notifications 4/2004-ST & 9/2009-ST, in conjunction, have given effect to the statutory promise by devising two methods for availing the exemption - by upfront exemption when the service is rendered within the geographical boundaries of the Special Economic Zone and by the refund route where the physical performance of service is not within the boundaries but is intended for the authorized operation of the developer or unit - services provided by M/s NSDL are for authorized operations in a SEZ - Refund of service tax paid by M/s NSDL is admissible to appellant in terms of Notification 9/2009-ST - Appeal allowed: CESTAT [para 3.7, 3.9, 3.11, 3.12, 3.13, 3.18, 3.19]



Jai Somnath Transport Vs CST (Dated: October 28, 2015)

ST - Tour Operator Service - Revenue is confusing the words "Tourist perm it" and "Tourist vehicle" and reading the word 'permit' to mean the same as Tourist permit - To be covered under the definition of Tour Operator prior to 10.09.2004 the vehicle must be a tourist vehicle under the Motor Vehicles Act, 1988 and the proper authority to decide whether a vehicle is a contract marriage equipped with certain specifications as per Rule 128 of Central Motor Vehicle Rules, is the Regional Transport Office (RTO), who govern the administration of the Motor Vehicles Act - Dy. RTO, Thane has categorically stated that the vehicles operated by the appellants cannot be considered as Tourist vehicles in terms of Section 2(43) of Motor Vehicles Act - Revenue has not challenged that the vehicles are not Tourist vehicles - therefore, pre 10.09.2004 the activity undertaken by the appellants is not leviable to tax under the "Tour Operator

Service" - Post 10.09.2004 any person who is engaged in the business of planning, scheduling, organizing or arranging tours is a Tourist Operator - second part of the definition, which requires the vehicle to be a tourist vehicle is not satisfied - Post 10.09.2004 the two parts of the definition are independent and for the activity to be taxable, either part may be satisfied - from the agreements, it is evident that the appellants have only planned for providing vehicles of a specific capacity with a particular schedule - activity of the appellant is not covered by the definition of 'Tour Operator' for the period post 10.09.2004 - In the case of General Travels the demand is confirmed on the ground that the tours were organized for picnics etc. - Therefore, this activity (post 10.09.2004) will fall under the ambit of planning, scheduling etc. in terms of the first part of the definition irrespective of the fact that the vehicle is not a tourist vehicle, however, penalties set aside by applying section 80 of FA, 1994 as there was confusion on taxability of service - Appeals of parties viz. Jai Somnath Transport, D.C.Gupta & Sons, S.K.Travels, Lawrence Travels, Moharir Travels, Ideal Travels, Buthello & Sons, Buthello Travels allowed - Appeal of General Travels partly allowed - Revenue appeals dismissed: CESTAT [para 4.5, 4.7, 5, 5.1, 5.2, 5.6, 6]



Tumkar Minerals Pvt Ltd Vs CCE (Dated: July 28, 2015)

ST - Refund - Notfn. 41/2007-ST - Education cess paid on service tax by the service providers is also to be refunded to appellants when the export of goods is not in dispute - Appeals allowed with consequential relief: CESTAT [para 7, 8]



Volkswagen India Pvt Ltd Vs CCE (Dated: September 9, 2015)

ST - Refund - Notification 11/2005-ST - Relevant date for refund in the case of rebate is from the date of payment of service tax on the taxable services exported and not from the date when consideration was received by FIRC - Appeal allowed: CESTAT [para 4.1 to 4.3]



M/s Affinity Express India Pvt Ltd Vs CCE (Dated: July 27, 2015)

ST - Appellant engaged in providing taxable services and filing refund claim for period January to March 2009 under rule 5 of CCR, 2004 r/w notification 5/2006-CE(NT) on the ground that they were not in a position to utilize the input service credit availed - refund allowed of Rs.4.94 lakhs but rejected to the extent of Rs.21.23 lakhs on various grounds - Commissioner(A) upholding the rejection - appeal to CESTAT. Held: Assessee does not become entitled to refund merely on accumulation but he has to first make an attempt to utilize the said credit for payment of service tax/excise duty and only then he qualifies for refund - it is, therefore, difficult to ascribe any particular date as the relevant date to compute the period of limitation as envisaged u/s 11B of CEA, 1944 - no time limit will, therefore, apply for refund claim u/r 5 of CCR - prior to crystallization of right to refund, no limitation can start running - Appeal allowed: CESTAT [para 5.1]

ST - Refund claim on embroidery software service. Held: It is evident from the nature

of the agreement that the said activity is in the nature of service - for the past period the same activity was accepted by the Department as service - merely because the assessee has inadvertently indicated the said turnover in the return against the column for final product instead of output service that will not disentitle them from refund - Appeal allowed: CESTAT [para 5.2]

ST - Refund on account of challenge to eligibility of certain services like Transport service charges, Xerox services, courier services, meal coupons. Held: These services are essential and are in fact used for provision of output services - when the assesse claimed CENVAT credit on these services as input services, same was not challenged - It is a settled principle that there cannot be different yardsticks in allowing credit and granting refund - Appellant has rightly claimed refund of CENVAT credit availed on the subject services - Appeal allowed: CESTAT [para 5.3]

2015-TIOL-2440-CESTAT-KOL

M/s Tulip Mines Pvt Ltd Vs CCE, C & ST (Dated: August 28, 2015)

ST – Refund - Notification No. 41/2007-ST dated 6.10.2007 – Admissibility of refund in r/o GTA service used by the appellant in relation to export of goods - there is no dispute on fact of export of the goods by the appellant nor there is any dispute that GTA services had been used in the export of the said goods - The only dispute centres around the fact that the relevant invoice numbers were not mentioned in the lorry receipts and also in the corresponding shipping bills - broad principle is that service tax should not be exported along with services – Case remitted to the original authority for verification of the claim of the Appellant on the use of GTA service in the export of goods by establishing a link between the lorry receipt and the export invoices and also the export invoices and shipping bills – appeal allowed by way of remand: CESTAT [para 6, 7]


M/s Valencia Construction Pvt Ltd Vs CCE, C & ST (Dated: June 9, 2015)

ST - section 73(3) of FA, 1994 - Amount of tax paid along with interest before issuance of SCN - When the show cause notice itself should not have been issued there is no question of imposing any penalty - Penalties imposed u/ss 76, 77, 78 set aside & appeal allowed: CESTAT [para 6]



Maharashtra Chamber Of Housing Industry Vs CCE, C & ST (Dated: July 10, 2015)

ST – Appellant is an association of Housing Industry and conducts exhibitions for benefit of builders etc. who are members as well as non-members and charges an amount as fees – No tax liability arises on the amount received from members but on fees collected from non-members ST liability under BAS arises – ST Demand of Rs.4.18 lakhs confirmed along with interest but no cause for imposition of penalty by invoking s. 80 of FA, 1994 as tax was introduced during the material period – as question of limitation was not raised before lower authorities, same cannot be gone into at the stage of second appeal – Appeal disposed of: CESTAT [para 6, 6.1, 6.2, 6.3]



Mr Trilok Chand Sharma Vs CST (Dated: September 7, 2015)

ST - Assessee provided BAS to LICHFL - It is thus liable to remit ST for having provided BAS - Since ST is an indirect tax, assessee is entitled to recover component of tax suffered by it from service recipient, LICHFL - Since LICHFL could have taken credit and therefore remitted its ST liability less the ST reimbursed by LICHFL to assessee, State in any event suffers no loss of revenue if assessee fails to remit ST on BAS, since LICHFL has remitted ST on whole of consideration received by it for having provided BOFS and this subsumes ST liability of assessee - Entitlement of LICHFL to avail CENVAT credit depends upon provisions of Rules, whether credit could be taken and conditions upon which CENVAT credit may be availed under Rules - Tax liability of assessee for normal period of limitation comes to Rs. Rs.65,000/- - Accordingly, assessee is directed to pre-deposit this amount along with proportionate interest: CESTAT


Punj Lloyd Ltd Vs CST (Dated: October 08, 2015)

ST - Assessee under an agreement with ONGC provided under a lump sum contract for a specified consideration design, engineering including surveys, procurement, clearing and grading of various specified good for execution of works involving trenching, welding and joint coating - As per agreement between parties, since it is a lump sum contract though the specified milestones for payment indicate payments to be made by ONGC stage-wise during rendition of contract including separately for installation of equipment which go into execution of composite contract, contract involved is clearly a works contract - Works contract is taxable only with effect from 01.06.2007 and not earlier thereto and that definition of CICS does not inhere either an appropriate charging provision or a computation provision for legitimising levy and collection of tax - Appeal allowed: CESTAT


Parmesh Sharma Vs CST (Dated: September 07, 2015)

ST - Assessee provided BAS to LICHFL - It is thus liable to remit ST for having provided BAS - Since ST is an indirect tax, assessee is entitled to recover component of tax suffered by it from service re cipient, LICHFL - Since LICHFL could have taken credit and therefore remitted its ST liability less the ST reimbursed by LICHFL to assessee, State in any event suffers no loss of revenue if assessee fails to remit ST on BAS, since LICHFL has remitted ST on whole of consideration received by it for having provided BOFS and this subsumes ST liability of assessee - Entitlement of LICHFL to avail CENVAT credit depends upon provisions of Rules, whether credit could be taken and conditions upon which CENVAT credit may be availed under Rules - Tax liability of assessee for normal period of limitation comes to Rs.1,79,531/- - Accordingly, assessee is directed to pre-deposit this amount along with proportionate interest: CESTAT


Maharashtra Cricket Association Vs CCE (Dated: October 29, 2015) ST - Rule 2(l) of CCR, 2004 - Input Service - Architect Services, Consulting Engineers Services, Management Consultancy Services etc. used for construction of sports stadium are admissible input services for taking CENVAT Credit as against the output service of the appellant i.e. renting of the said stadium on which services, service tax

was discharged - 'input service' is not limited to the services for providing output service, but it also includes the service for setting up the premises of provider of output service - appellant is clearly entitled for Cenvat Credit in respect of all the services used for construction/setting up the stadium which is admittedly used for providing the output services viz. Renting of Immovable Property - Board Circular 98/01/2008-ST dated 04.01.2008 is contrary to the definition of Input service u/r 2(l) of CCR, 2004 and is, therefore, not tenable - legislators knowing fully that there is no tax or excise duty on the constructed premises of the output service provider included services used for setting up of the premises of provider of output services, for the simple reason that if the premises are used for providing the output service, the credit of input services used for setting up the premises of service provider must be allowed - Appeal allowed with consequential relief: CESTAT [para 8, 9, 10]



Theme Exports Pvt Ltd Vs CST (Dated: October 13, 2015) ST - 'Banking & other Financial Services' on reverse charge basis - Assessee engaged in export of garments and realize sale proceeds of such exported items through banking channel - Transaction between foreign bank and applicant's bank is either direct or facilitated by an intermediary bank - For this, intermediary bank or foreign bank deducts an amount on its end and remits balance amount to applicant's bank - Assessee submitted that there is no contract or understanding between them and foreign bank for providing any service - Foreign importers instruct bank at their end to transfer invoiced amount to exporter's bank in India - As such there is no service provider - service recipient relationship between assessee and foreign bank: CESTAT


CCE, C & ST Vs Balmer Lawrie And Co Ltd (Dated: October 13, 2015) ST - Sale proceeds of auction of abandoned imported goods - In the whole transaction no service recipient exists, therefore, there is no question of providing any service to any person - Merely for the reason that Section 150 of Customs Act, 1962 provides for distribution of the amount of proceeds of auction, that will not empower the government to recover service tax on the auction proceeds - Order of Commissioner (Appeal) does not suffer from any infirmity - Revenue appeal dismissed: CESTAT [para 6]



Flemmings Bpo Pvt Ltd Vs CST (Dated: August 13, 2015) Service Tax - Refund of unutilized credit on input services used for export of Service - Credit availed on input services (i) Security Maintenance Service (ii) Housekeeping Service and (iii) Mobile Phone Service denied by Commissioner (Appeals) on the grounds that (i) & (ii) were not in relation to output service, and (iii) pertained to the service tax paid prior to registration.

Held: So far as the ineligible Cenvat credit is concerned, the appellant has no material to suggest reversing that part of the order; accordingly, that is confirmed - So far as service tax paid prior to registration is concerned, law is well settled by Karnataka High Court and similar ratio followed by Tribunal in E-Care India Pvt. Ltd. - The appellant is entitled to the Cenvat credit of the service tax paid prior to registration on the ground that the registration being prescribed only for the purpose of maintenance of accounts and for following procedure of law, it cannot be said that registration is

mandatory to grant refund - portion of refund claim pertaining to the service tax paid prior to registration is to be allowed. [Para 4, 5]


M/s Ashok And Co Pan Bahar Ltd Vs CST (Dated: September 7, 2015)

ST- Assessee was receiving commission only for mobilising customers to invest in LIC Index Nifty Fund through M/s. Zealous Financial Services (P) Ltd - Assessee was not registered as a mutual fund distributor or agent thereof as required under SEBI Regulations - Thus, they were not distributor of mutual fund or agent thereof and only promoting and marketing the services provided by M/s. Zealous Financial Services (P) Ltd - Thus, service rendered by assessee was covered under BAS under Section 65 (19) of FA, 1994 - Appeal dismissed: CESTAT


Meru Cab Company Pvt Ltd Vs CCE (Dated: October 30, 2015)

ST - Privity of contract of supply of taxi for undertaking the journey is between the appellant and the passenger and not the appellant and driver - adjudicating authority has lost sight of the fact that the supply of tangible goods in the case in hand is not for the use of the driver - entire action of booking of the radio taxi till the collection of the fare from the customer/passenger is on behalf of the appellant - appellant is not covered under the entry Supply of tangible goods for use – Appeal allowed: CESTAT [para 10, 11, 12]



Sponge Enterprises Pvt Ltd Vs CCE & ST (Dated: June 09, 2015)

ST - Refund - Assessee engaged inter alia in activity of trading of Iron Ore and avails cenvat credit of ST paid on various taxable services used in or in relation to providing output service - Refund application was originally filed by assessee on 2.11.2012 which is within one year from relevant date i.e. date of export of Iron Ore - Additional documents desired by Refund Sanctioning Authority were provided by assessee on 26.11.2012 and 14.12.2012 - Since, refund claim has been filed by assessee on 2.11.2012 and that application has not been returned by Department and the same has been considered for purpose of refund of ST, objection raised by Revenue that claim is barred by limitation is not sustainable - Assessee is eligible for refund of ST under Rule 5 of CCR, 2004 read with notfn dated 7.7.2009: CESTAT

2015-TIOL-2406-CESTAT-AHM

CST Vs Intas Pharmaceuticals Ltd (Dated: September 24, 2015)

ST - Refund - Limitation - Claim was originally filed on 3.1.2007 - Due to demand of certain documents and signature on revenue stamp, certain correspondence took place between revenue and assessee - Deficiencies were of technical nature - Claim was returned by revenue on 11.6.2007 and was again returned by assessee in August '07 - Original claim was filed within time - Impugned order is upheld on limitation without going into merit: CESTAT


M/s Arvind Processors Pvt Ltd Vs CCE & ST (Dated: June 17, 2015) ST – Appellant not contesting the tax liability on Intellectual Property services and paid the same along with interest - submission of appellant that if they had malafide intention they would not have entered into any agreement and would not have accounted for transaction of the royalty in their books of account has force – penalty waived u/s 80 of FA, 1994 – Appeal partly allowed: CESTAT [para 6]



M/s Jwalla Security Force Vs CST (Dated: June 15, 2015) ST – Appellant providing Security agency service – during 2005-06 appellant short paid ST of Rs.48,702/- - on being pointed out by department, amount paid along with interest in March 2010 – later SCN issued seeking appropriation and imposition of penalty – upon adjudication, penalty imposed u/s 76, 77 & 78 of FA, 1994 – appeal rejected by Commissioner(A), therefore, further appeal before CESTAT against imposition of penalties.

Held: Short payment is due to difference in income shown in balance sheet and ST-3 returns – since actual income was declared in books of account it cannot be the intention for evasion of tax – moreover, ST paid along with interest before issuance of SCN – merely because appellant is not challenging extended period it cannot be said that they have admitted suppression of facts – appellant is having better conduct as compared to assessees who never pay ST and contest ST as well as penalties only for the sake of litigation – appellant has made out a case for immunity in terms of s.73(3) of FA, 1994 – penalties imposed u/ss 76, 77 & 78 set aside – appeal allowed: CEST AT [para 6]


CCE Vs Power Link Systems Pvt Ltd (Dated: March 23, 2015) Service Tax – Rebate – Claim for rebate of Service Tax paid on BAS exported by respondent under Rule 5 of Export of Service Rules, 2005 read with Notification No.11/2005 dt. 19.4.2005 - Claim denied in adjudication, allowed by Commissioner (Appeals) and agitated by Revenue herein.

Held: No dispute on the fact that respondent have exported Business Auxiliary Service on payment of service tax –Rule 4 of Export of Service Rules stipulates that any service which is taxable may be exported without payment of service tax; same cannot be construed as exemption from payment of service tax - Phrase “exported without payment of duty” is different from “exempted from service tax” - Rule 4 is not exemption; it is only a provision allowing export of services without payment of duty - Rule 5 ibidem clearly stipulates that where the taxable service is exported, the company can claim rebate of service tax paid on such taxable service by issue of specific notification, namely, Notification No.11/2005 - There is no restriction for exporter that he should avail only Rule 4 and not Rule 5: when there are two options available in the statute / rules, it is the right of the respondent to choose any of the provisions of the rules - since in the present case payment of tax on the export of service is not disputed, the respondents a re rightly eligible for rebate under Rule 5 of

Export of Service Rules - the issue of non submission of input service document is not related to admissibility of cenvat credit on input invoices under CCR but relates to rebate claim on the service tax paid on the service exported under Rule 5 of Export of Service Rules; payment of tax is not on dispute; no infirmity in the impugned order, which is upheld. [Para 4-6]


Chotey Lal Radhey Shyam Vs CCE & ST (Dated: September 16, 2015) ST - Assessee was appointed as a franchisee for Lucknow by BSNL for sale of sim cards and recharge coupons of BSNL who in turn, sells the same through network of retailers, which amounts to trading activity - BSNL had already paid ST on sim cards and recharge coupons sold to franchisee - Again demanding ST from franchisee would amount to double taxation which is not permissible in law - Relationship of assessee with BSNL is of principal-to-principal basis, he cannot be termed as an agent of BSNL - Finding of Commissioner that assessee is promoting business of sale or service of BSNL is misconceived - Assessee is only engaged in trading activity and does not render any taxable service in category of 'BAS': CESTAT

2015-TIOL-2390-CESTAT-BANG

Sri Krishna Pharmaceuticals Ltd Vs CCE, C & ST (Dated: May 1, 2015) Service Tax - Unjust enrichment - Business Auxiliary services imported from abroad by way of debit in Cenvat account - Because the mode of payment was objected by the department, appellant repeated the payment in cash - On facts, Assistant Commissioner thereafter allowed re -credit in Cenvat account - Such re-credit held is not hit by doctrine ofunjust enrichment as the service tax in question was paid in cash and the amount is lying with the department - Question of passing on the burden of payment of service tax to another person does not arise - Impugned order set aside. (Para 2)


Mateshwari Indrani Contractors Pvt Ltd Vs CCE & ST (Dated: September 21, 2015)

ST - BAS - Assessee engaged in activity of collection of mining royalty (for a commission) for Mines Department of Government of Rajasthan - Collection of tax cannot be said to be a service provided by Government - Assessee did not provide promotion or marketing of service provided by client, nor did it provides customer care on behalf of client - They also did not provide any re lation to procurement of goods or services which were inputs for client or provision of service on behalf of client - Therefore, demand relating to commission received by assessee for collection of sales tax on behalf of Government would not fall under BAS as defined in Section 65(19) of FA, 1994: CESTAT


Shree Agencies Pvt Ltd Vs CCE (Dated: September 04, 2015)

ST - Refund of Rs. 92135/- sought in terms of notfn 41/2007-ST was rejected - Regarding the amount of Rs. 80865/-, sample invoices produced by assessee show the ST having been paid under business support service which is not a service covered under notfn 40/2001-ST or 41/2007-ST - Consequently, refund pertaining to

Insurance Service is not admissible - Assessee itself has admitted that an amount of Rs. 5976/- was service tax relating to handling charges and not in relation to freight charges, and therefore, even this amount is not admissible for refund under any of the two notfns: CESTAT


Sam Travels Hp Car Care Vs CCE & ST (Dated: June 22, 2015)

Service Tax - Condonation of delay - Order passed by Commissioner (Appeals), dismissing the appeal on ground of limitation is agitated herein.

Held: There is sufficient cause shown by the appellant for the delay in filing the appeal before Commissioner (Appeals) - The due date of filing appeal is 17.11.2011 whereas they have filed the appeal on 20.1.2012 - The only ground mentioned in the order for dismissing the appeal is that appellants failed to file COD application before the Commissioner (Appeals) - the appeal is within the powers of Commissioner (Appeals) for condonation - delay in filing of appeal before Commissioner (Appeals) is condoned; matter is remanded to Commissioner (Appeals) for deciding the case on merits after affording a reasonable opportunity to the appellant. [Para 5]


Krishna Kumar Kaushik Vs CCE & ST (Dated: June 30, 2015) ST - Whether activities of assessee is promotion or marketing or sale of goods produced or provided by or belonging to client - Revenue views that assessee engaged in activities of multi level marketing, which was held to be liable to ST under BAS while assessee contends that he is not covered under scope of BAS as transactions involved sale and purchase of goods - Case remanded to original adjudicating authority for de-novo adjudication in terms of Mr. Charanjeet Singh Khanuja & Others 2015-TIOL-1205-CESTAT-DEL: CESTAT


Midex Global Pvt Ltd Vs CC & CE (Dated: September 4, 2015) ST - Refund claim filed in terms of notfn 41/2007-ST - It is a case of availment of exemption under notfn 47/2007-ST - Availability of exemption under notfn 41/2007-ST as amended was inter-alia subject to condition that refund claim is filed on a quarterly basis within 60 days from end of quarter - Condition has been violated by assessee and so they do not remain entitled to benefit of said notfn under which refund was claimed - Appeal dismissed: CESTAT


CCE Vs M/s Surinder Kumar (Dated: July 9, 2015) ST - Industrial Construction Service - Services rendered at residential houses in which employees of assessee reside would not be tantamount to rendering industrial construction service - An amount received for painting of goods /material/other article other than building and civil structures would not be part of industrial construction service - Regarding remaining amount, Tribunal views that painting of walls of floor of commercial building would fall under industrial construction service and being in nature of completion and finishing service would not be entitled to abatement of 67% under Notfn 15/2004-ST - As per Continental Foundation Jt.Venture 2007-TIOL-152-SC-CX , mere omission to give correct information is not suppression of facts unless it

was deliberate to stop the payment of duty - Allegation of suppression/wilful mis-statement is not sustainable as a consequence of which demand is rendered time barred: CESTAT


Tata Consultancy Services Ltd Vs CST (Dated: October 27, 2015)

ST - Intellectual Property Right not covered by the Indian laws would not be covered under taxable service in the category of IPR Services - no clue at all in the records as to which type of Intellectual Property Right is being assigned to the "Technical knowhow" received by the appellant - technical know-how received by the appellant and the royalty payment made by the appellant to Unisys is nowhere established to result from the use of any Intellectual Property Right - Appeal allowed: CESTAT [para 4.1, 4.2, 4.3]



Saani And Savera Educational Welfare Trust Vs CST (Dated: September 22, 2015) ST - Assessee entered into a franchise agreement with franchisee in terms of which it gave right to use the name Shemrock to franchisee for running a pre -preparatory/preparatory school - As per condition no. iv of definition of franchise given in Section 65(47) of FA, 1994 franchisee was obliged not to open any school with any name in existing premises/building operational area of school - Said condition of definition of franchise is not satisfied and consequently agreement does not fall in category of franchise agreement prior to 16.6.2005 - No ST is leviable under franchise service prior to 16.6.2005 and consequently demand, interest and penalty relating to period prior to 16.6.2005 are set aside: CESTAT


Kailash Chawla Vs CCE & ST (Dated: September 8, 2015) ST - Works Contract Services - As services were rendered under works contracts, they are not liable to ST upto 31.05.2006 as works contract service came into existence w.e.f. 01.06.2007 - Benefit of composition scheme for works contract service has not been extended although rendition of service involved supply of goods and so prima-facie, assessee is entitled to said benefits which by itself would bring down the demand to less than 33% of amount confirmed - Assessee has also raised issue of time bar although a decision thereon will require detailed discussion which can be taken up only at time of final hearing - They have deposited Rs. 4.17 lakhs and some part of demand is claimed to be in respect of sale of goods which is not sustainable - Assessee is directed to make pre-deposit of Rs. 17.5 lakhs plus proportionate interest: CESTAT


M/s Viraj Roadlines Vs CCE (Dated: June 17, 2015)

ST - Appellant engaged in providing services of rent-a-cab - during the period 2006-07 till 2010-11 they have collected service tax but not deposited with the government exchequer - demand issued - appellant discharging entire ST liability along with interest before adjudication - appellant praying that they are a small time service

provider and, therefore, seeking waiver of penalty imposed by lower authorities. Held: ST liability not contested and the same has been paid along with interest - however, it is on record that appellant had collected service tax, therefore, it cannot be said that they were unaware of the tax liability and payment thereof - appellant has not shown any reasonable cause by which penalty can be waived by invoking s.80 of FA, 1994 - order upheld and appeal dismissed: CESTAT [para 6]


M/s Khandwala Securities Ltd Vs CST (Dated: June 3, 2015)

ST - Appellant engaged in the business of providing various services like sale and purchase of share/security on which it earned brokerage - appellant registered with department and paying tax regularly - on scrutiny of P&L account by Audit officer, it was observed that appellant had received income for providing Corporate Advisory services and also underwriting commission and brokerage which are taxable under the head 'Management Consultant Service'/'Underwriter's service' - demand confirmed. Held: No case of contumacious conduct and/or deliberate default of provisions of Act or Rules is made out against the assessee - Transactions have been found to be duly recorded in the Books of Account, as found by the Audit party - Further, appellants have immediately applied for amendment to registration certificate, pursuant to Audit, showing willingness to pay for difference in balance-sheet and ST -3 returns - Further, it is seen that after grant of amended certificate of registration have deposited Service Tax under the new head of classification immediately - in this view of the matter, neither extended period of limitation is attracted nor any penalty is imposable u/s 76, 78 - assessee appeal allowed and Revenue appeal dismissed: CESTAT [para 5]


Nana Lal Suthar Vs CCE (Dated: September 18, 2015)

ST - Assessee being a subcontractor of M/s Umesh Construction Company was providing commercial construction services to main contractor - When service tax can be demanded either from subcontractor or from main contractor, when the main contractor has paid service tax, subcontractor is not required to pay tax for the same services rendered: CESTAT


CCE & ST Vs Mormugao Port Trust (Dated: September 30, 2015)

ST - Assessee had leased out land area and water area for the use of the lessee and granted permission to him for construction of dry dock, jetty for commercial exploitation - exclusion clause (b) under Explanation 1 to the definition under Section 65(105)(zzzz) of FA, 1994 does not envisage any restriction as to it is to be put for non-commercial use - not liable to ST under category of "renting of immovable property" services - Assessee appeal allowed & Revenue appeal rejected: CESTAT [para 5.2, 5.4, 5.5]



CCE Vs M/s Roshan R Jaiswal (Dated: July 14, 2015)

ST - Commission received for the sale of recharge coupons of BSNL -

Commissioner(A) set aside the demand holding that recharge voucher sold by BSNL has suffered sales tax and no ST liability arises - Revenue in appeal. Held: Issue is no more res integra - Tribunal has in the case of Prakash R Jaiswal vide Final order no. A/1831-1832/15-STB dated 04.06.2015 for the very same issue has held against the assessee and recorded that the ST liability arises on the commission received on sale of recharge coupons by BSNL - on merits, assessee has no case and, therefore, order of Commissioner(A) to that extent set aside - Respondent assessee is liable to pay ST liability along with interest: CESTAT [para 4]

Penalty - Issue of discharge of ST liability on the sale of recharge coupons purchased from the telephone service providers was a highly contested issue and was before the higher judicial forum during the relevant period - respondent could have entertained a bonafide belief as to that they are not liable to discharge ST liability - moreover, respondent assessee has discharged the entire tax liability of Rs.18,98,953/- and the same has been appropriated by the adjudicating authority - this is, therefore, a fit case for invoking the provisions of s.80 of FA, 1994 and lower appellate authority was correct to the said extent - order does not require any interference in setting aside the penalties: CESTAT [para 4.1, 4.2]

Interest - Respondent assessee to discharge interest liability on the amount of Service Tax within one month of receipt of certified copy of this order: CESTAT [para 4.3]


M/s Y M Motors Pvt Ltd Vs CCE (Dated: June 15, 2015)

ST - Appellant registered for providing BAS and Authorized Service Station services - Allegation of Revenue is that they were not paying ST on the commission received from banks and insurance company which is considered as taxable under BAS - so also, they were recovering certain amounts from customers for RTO registration of vehicle and showing it under the head Registration charges or Handling charges and which is taxable under BSS; also amounts collected for service of motor vehicles - on pointing out the same, appellant paying ST in respect of the referred services along with interest - SCN issued - in adjudication, amount & interest paid appropriated and penalty imposed - Commissioner (A) upheld the o-in-o - appeal to CESTAT. Held: As regards services of motor vehicles, appellant have been collecting ST along with service charges but not paying to exchequer - appellant has, therefore, not made out any reasonable cause for waiver of penalty imposed u/s 78 in respect of the said component of demand - however, since appellant have paid ST along with interest prior to issuance of SCN and 25% penalty within one month from the date of the adjudication order, benefit of reduced penalty available. In the matter of penalty in respect of non-payment of ST on commission from banks/insurance company and on handling charges, both the issues are contentious and litigation in various forums was going on - therefore, taxability of said services was not free from doubt, and, therefore, reasonable cause shown for waiver of penalty imposed u/s 77 & 78 - Penalty u/s 78 dropped in respect of the said ST demand on commission from banks/insurance and on handling charges - penalty imposed u/s 77 of Rs.10,000/- reduced to Rs.5000/- - Appeal partly allowed: CESTAT [para 6]


M/s R M Dhariwal (HUF) Vs CCE (Dated: April 15, 2015)

ST - Appellant receiving an amount as royalty from M/s Dhariwal Industries Ltd. for the use of trade name/brand name on the products which were manufactured and cleared consequent to an agreement dt. 20.4.2004 - Receipt of royalty is for the period 01.04.2004 to 10.09.2004 - Demand of ST confirmed under the category of Intellectual Property Services - appeal to CESTAT. Held: Tax on Intellectual Property Services came into effect only from 10.09.2004 - in respect of service tax liability, on

any new services, it comes into effect only from the date which is notified by the Central Government by notification, hence attempt by lower authorities to recovery ST by invoking the provisional collection of tax is not tenable - ST liability would not arise on the amount received by the appellant during the period 20.4.2004 to 10.09.2004 - order unsustainable, hence set aside - appeal allowed: CESTAT [para 7, 8, 9]


Reliance Industries Ltd Vs CCE & ST (Dated: October 15, 2015)

ST - Services like construction service, repairs and maintenance service, security service, manpower recruitment and supply service, works contract service etc. received by appellant in the residential township constructed for their employees are Input Services and tax paid thereon is admissible as CENVAT credit - Appeals allowed with consequential relief: CESTAT [para 7, 7.1, 7.4, 7.6, 8.2]



M/s Tops Detective And Security Services Ltd Vs CCE (Dated: September 10, 2015)

ST - Demand confirmed against assessee on the ground that they had not discharged the service tax liability on the entire receipts under security service - No evidence to show that it had actually paid ST on proceeds actually received by them - Receipt shown in balance sheet did not represent actual realisation - For reconciling figures, assessee did not extend any cooperation - Act of non furnishing of information by assessee amounts to suppression of facts - Appeal dismissed: CESTAT


M/s Sahara India TV Network Vs CCE & ST (Dated: August 13, 2015)

ST - Issue is not so much of law but of a mistake of incorrectly mentioning the registration number in service tax deposit challan - Assessee, a trader having two outfits; one located in NOIDA and other in Mumbai - NOIDA unit deposited Rs.25 lakhs but in challan by mistake mentioned the registration number of its Mumbai unit - There is complete absence of mala fide and mistake was brought to notice of Revenue by assessee itself - Procedure prescribed by Cochin Commissionerate in its Trade Notice dated 10.07.2014 is reasonable for purpose of rectification of such mistakes without any risk to Revenue - Impugned order set aside and case remanded: CESTAT

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