cestat ruling - tax india online...amira foods india ltd vs cce (d ated: march 27, 2017) st -...

CESTAT RULING

2017-TIOL-2793-CESTAT-MUM

Maharashtra Small Scale Industries Development Corporation Ltd Vs CST(Dated: March 15, 2017)

ST – Appellant had allegedly rendered services of C&F Agents but had not dischargedService Tax liability during the period 16/07/1997 to 31/12/2001 – Before the o-in-owas passed appellant discharged the entire tax liability – AA appropriated the amountpaid towards tax and demanded interest and penalty - appellant before CESTAT -Appellant submitting that they have paid interest and seek waiver of penalty on theground that being a Government of Maharashtra undertaking they could not have hadany intention to evade service tax liability. Held: Appellant has pleaded before thelower authorities that there was no intention to evade any tax as they beingGovernment of Maharashtra undertaking - this pleading was not properly appreciatedby the adjudicating authority and the only finding is that it is difficult to accept thatthe appellant was unaware of Central Government legislation and hence there was adeliberate attempt to not to discharge service tax liability to the Government – suchreasoning of the adjudicating authority seems to be mis-directed as it is a known factthat service tax liability on the services rendered by the C&F Agents were placed inthe hands of the recipient of service by retrospective amendment – it is also a factthat during the relevant period there was confusion as to who has to discharge servicetax liability under reverse charge mechanism and the matter was agitated before thehighest court – strong force in the contention of the appellant that there is nointention to evade payment of tax as being an undertaking of the Govt. ofMaharashtra – fit case for invoking the provisions of s.80 of the FA, 1994 for settingaside the penalties imposed – appeal is allowed to the extent it contests theimposition of penalties by the adjudicating authority: CESTAT [para 8, 9]


CCE Vs Zensar Technologies Ltd (Dated: May 30, 2017)

ST - Refund - Rule 5 of CCR, 2004 r/w notification 5/2006-CE(NT) - basis of notinclusion of service value of service provided by the branch offices is that the samewas not provided from India - if that is so, then the same is not includible in the totalturnover of the respondent for the reason that only turnover which pertains to theactivity carried out by the respondent from India will only be taken as total turnover -Revenue cannot apply two yardsticks, that for the purpose of export turnover by therespondent from India and for the purpose of total turnover - Once the revenue itselfhas admitted that the service provided from the branch office of overseas is notincludible in the export turnover, the same principle has to be applied with regard tototal turnover - Value of services provided by the branch offices cannot be added inthe total turnover - no infirmity in the order of the Commissioner(A) - Revenue'sappeals are dismissed: CESTAT [para ]

2017-TIOL-2790-CESTAT-CHD

Amira Foods India Ltd Vs CCE (Dated: March 27, 2017)

ST - Terminal Handling Charges, Other Port Services and Fumigation Services arecovered under port services, therefore assessee is entitled for refund claim as perdecision in M/s SRF 2015-TIOL-2241-CESTAT-DEL - Agreement is not the requirementand same is only procedural requirement for same and in case where there is noagreement, assessee cannot be asked to produce agreement, therefore, assessee isentitled for refund claim on Testing, inspection and analysis services - Assessee is also

entitled for refund claim on courier services in view of decision in case of AmarInternational - As no documents have been produced by assessee for entertainment oftheir refund claim, and as assessee is preferred to produce relevant documents insupport of services received by them, matter is remanded back to Adjudicatingauthority: CESTAT

2017-TIOL-2789-CESTAT-MAD

Ar Empire Pvt Ltd Vs CCE (Dated: March 22, 2017)

ST - Penalty under section 77 and 78 - Assessee got reregistered under commercialconstruction service w.e.f. 26.6.2007 - During the scrutiny of records on 20.10.2010,it was found that prior to registration, assessee has provided service and had not paidST thereon - Assessee contends that they are paying VAT on their activity beforeobtaining registration from department - Moreover, the registration was also granted -In that circumstance, assessee was under bonafide belief that they are required topay ST after registration - Further, assessee has paid entire amount of ST payable bythem before audit took place - Consequently, assessee has been able to show areasonable cause for non-payment of ST before 25.10.2010: CESTAT

2017-TIOL-2774-CESTAT-AHM

Bodal Chemicals Ltd Vs CCE (Dated: March 3, 2017)

ST - Assessee filed refund claim of ST paid on goods exported under Notfn 41/2007-ST , within one year from date of export of goods prescribed under said Notfn41/2007-ST - However, said claim was returned on 16.9.2009 by Asst. commissioneras it was not filed in prescribed proforma and pointing out other deficiencies - Later,assessee removed the deficiencies and filed revised claim on 22.4.2009 which wasrejected by both the lower authorities on the ground of limitation as well as on merit -In Annexure attached to prescribed proforma the details of invoices, shipping bills,value and ST paid alongwith classification of service on which refund was claimed hasbeen mentioned - Assessee submits that they are now in a position to submit alldocuments and can satisfy Original Authority about fulfilment of all conditions of saidNotfn - Appeal remanded to Adjudicating authority for purpose of verification ofdocuments on record and that would be produced by assessee at the time of de novoproceeding to establish the claim: CESTAT


Satish Kumar Contractors Ltd Vs CCE (Dated: August 11, 2016)

ST - Assessee is undertaking work of construction with material and agreementcannot be vivisected towards payment of providing taxable services - They are notliable to pay ST prior to 1.6.2007 in view of decision of Apex Court in case of Larsen &Toubro Ltd. - For the services post 1.6.2007, assessee is ready to pay ST oncomposite contract value which is permissible under work contract - Therefore,assessee is directed to make payment of 2% plus other levy in terms of cess payablealongwith interest by assessee within 30 days: CESTAT


Municipal Corporation Vs CCE (Dated: April 07, 2017)

ST - Appellant, Aurangabad Municipal Corporation rendered various services such asrenting of "immovable property service", "mandap keeper services", "sale ofadvertising space of time service", "supply of tangible goods service" and "Health Cluband Fitness Service" to their clients but failed to discharge the service tax liability -

SCN issued invoking extended period of demand and in adjudication service taxliability confirmed with along with penalties - appeal to CESTAT. Held: Servicesrendered by the appellant under various categories may be liable to be taxed asundisputedly, appellant had received consideration for rendering these services - tothat extent, impugned order is correct - as for invocation of extended period oflimitation, Bench is of the considered view that Aurangabad Municipal Corporation,being a statutory body, allegation of suppression of facts with intention to evade taxare not sustainable in law - to this extent, appeal is allowed - In sum, the service taxliability needs to be recomputed by the adjudicating authority that falls within theperiod of limitation and interest liability thereon also needs to be discharged byappellant - appellant being statutory body, the intention to evade service tax cannotbe upheld, hence by invoking the provisions of Section 80 of the FA, 1994, penaltiesare set aside - Appeal disposed of: CESTAT [para 6 to 6.4]


Kasegaon Education Society Vs CCE (Dated: June 12, 2017)

ST - Appellant is a public trust and has been constituted as a society under theSociety Registration Act XXI of 1860 - Appellant manages various educationalinstitutions and during the period April 2009 to March 2010 joined hands withUniversity Child Development School, USA - On the invoices raised by the overseascollaborator, appellant paid service tax of Rs.1,26,669/- as recipient of ‘Managementor Business Consultant service' - later, they filed refund claim for the tax paid by themand the same was allowed by the original authority on the ground that these serviceswere not related to business or commerce - Revenue appeal against this order wasallowed by Commissioner(A) on the finding that the definition of taxable service didnot exclude institutions that were not profit-making - appeal to CESTAT. Held:Appellant contends that the view that the chargeability to tax within the meaning ofrule 3(iii) of Taxation of Services (Provided from Outside India and Received in India)Rules, 2006 and more particularly with reference to the expression ‘business orcommerce' in the said Rules cannot be ignored as it impacts upon the extent of levypermitted by law - in the cases of 3i Infotech and Milind Kulkarni, the Tribunal hasnoted the special enactment in section 66A of Finance Act, 1994 that deems therecipient to the be the provider of service for fastening of tax liability; that suchdeeming provision is found to be enforceable only with delineation of the specificcircumstances by which the services are determinable as imported; that the Rulesframed for the purpose owe parentage to the exemption powers under section 93 ofFinance Act, 1994 and consequently, there is an implied exemption to such activitiesas are not specifically enumerated in the Rules or, if enumerated, are circumscribed -as the lower authorities have not had an opportunity to consider these aspects raisedfor the first time before the Tribunal, it is appropriate that the matters are decidedafresh - impugned orders are set aside and matter remanded to original authority:CESTAT [para 4, 5, 6]


Spirax Marshall Pvt Ltd Vs CCE (Dated: June 12, 2017)

ST – Appellant received services of ‘commission agent' from associated enterprisesbased outside the country but had failed to discharge service tax liability u/s 66A ofFA, 1994 for February 2008, March 2008, December 2008 and March 2009 – amountwas paid immediately on it being pointed out to them during investigations – inadjudication proceedings, demand confirmed along with penalty and interest –Commissioner(A) while upholding demand of tax and interest enhanced penalty to anamount equal to the tax that was confirmed – appeal before CESTAT. Held: It is veryclear from the provisions of section 73 (3) of FA, 1994 that further proceedings arenot to be initiated whenever the tax liability alongwith interest thereon has beendischarged before crystallization of the demand – Admittedly, appellant has notdischarged the interest liability and, therefore, recourse to section 73 by the

department cannot be faulted – no evidence brought on record by appellant toestablish that the ingredients prescribed for invoking of s.78 of FA, 1994 were not inexistence – there is also failure on part of appellant to report the receipt of services inST-3 returns – no reason, therefore, to interfere with the impugned order – appealrejected: CESTAT [para 5, 6]


Nagpur Municipal Corporation Vs CC & CE (Dated: July 18, 2017)

ST – Very fact that amount is collected by virtue of an agreement between the twoparties shows that they are not in the nature of tax, but are in the nature of incomeother than tax - If the amount collected for the activities undertaken in theseagreements were tax then no such agreement would have been needed - Permittingthe use of its land or other immovable property for fixing poles/structures for puttingup billboards for advertisement or fixation of kiosks for advertisement on street lightpoles - amounts collected chargeable to service tax under the category of ‘Sale ofspace or time for advertisement service' - Revenue generated by collecting license feefrom private property for permitting advertisement on the private properties, demandof service tax is not sustainable - Penalties imposed u/ss 76, 77 and 78 set asideinvoking Section 80 of the FA, 1994 – Appeal partly allowed: CESTAT [para 4, 4.1 to4.5]

Also see analysis of the order

2017-TIOL-2758-CESTAT-DEL

Mohit Agency Vs CCE & ST (Dated: July 3, 2017)

ST-Appellant filed declaration under the Voluntary Compliance EncouragementScheme (VCES) and declared unpaid ST amounting to Rs.6.47 lakhs - on scrutiny,department of the view that the declaration was partially false - SCN issued toappellant proposing to reject the declaration and to demand ST amounting toRs.22.28 lakhs - vide impugned order, the adjudicating authority held that thedeclaration is not required to be rejected, since it does not fall under the category ofsubstantially false - however, the demand of Rs.1.06 lakh was confirmed along withpenalty of equal amount - appeal to CESTAT.

HELD-The Commissioner has confirmed the ST demand amounting to Rs.1.06 lakh inthe impugned order - since the same is not pressed it is upheld - however, there is nojustification for imposition of penalty on the appellant, in view of the fact that he hascome forward and declared unpaid tax under the VCES scheme - accordingly, theappeal is partially allowed and impugned order is modified to the extent above :CESTAT [para 6, 7]


Sesa Sterlite Ltd Vs CCE (Dated: May 30, 2017)

ST - Issue is whether the refund of service tax in terms of Notification No. 52/2001-STin respect of service tax paid on the input service and used for export of service isadmissible when it is filed beyond the limitation of one year as provided under saidnotification. Held: As per the statutory time limit given in the notification (supra), para3(h), the refund must be filed within one year from the date of export - There is nodiscretion provided for any authority to condone the delay - In the present caseundisputedly refund claim was filed after one year from the date of exports - refundfiled by the appellant is clear time barred and same cannot be entertained - impugned

order is sustainable, therefore, appeals are dismissed: CESTAT [para 5]


Omkar Constructions Vs CCE (Dated: April 3, 2017)

ST – Whether the activities undertaken by the appellant would fall under category ofWorks Contract or otherwise and whether the appellant has discharged the VATpayable by them on the various contracts entered into by them. Held: Appellant hasproduced 10 box files containing invoices and sought the indulgence of theadjudicating authority to verify and consider the same in their defence – however,adjudicating authority has summarily dismissed the plea raised holding that it is notpossible to verify each and every invoice at the time of adjudication of the case – it isthe bounden duty of the AA to consider the evidence which has been produced byappellant in their support – impugned order is a non-speaking one, therefore, same isset aside and the matter is remanded to the AA to reconsider the issue afresh:CESTAT [para 4, 5]

2017-TIOL-2755-CESTAT-ALL

CC, CE & ST Vs Ganesh Yadav (Dated: March 7, 2017)

ST - Whether assessee is liable to ST for constructing low cost housing or housing foreconomically weaker section for Varanasi Development Authority, Varanasi - Assesseeengaged in construction of houses for Below Poverty Line (BPL) families as per thecontract with Varanasi Development Authority, Varanasi - Larger Bench of thisTribunal in case of Lanco Infratech Ltd. 2015-TIOL-768-CESTAT-BANG-LB has heldthat such activity which was not taxable prior to 01.06.2007 under category ofCommercial and Industrial Construction continue to be non taxable under category ofWorks Contract Service from 01.04.2007 - Activity for constructing houses byassessee for economically weaker section under works allotted by VaranasiDevelopment Authority under the scheme of Government of U.P. - Activities is neithertaxable under works contract services nor under Construction of Complex/Commercialor Industrial Construction Services more particularly under exclusion clause whichprovides that construction classifiable under category of residential complex servicedoes not include a complex which is constructed by a person directly engaging anyother person for designing or planning of layout, and construction of such complex isintended for personal use as residence by such person and personal use have beenfurther explained as including or permitting the complex for use as residence byanother person on rent or without consideration: CESTAT


MP State Seed Certification Agency Vs CCE (Dated: April 20, 2017)

ST - Assessee engaged in providing the services of testing and certification of seeds -Revenue alleged that services provided by assessee such as technical inspection andcertifying agency service was considered as taxable services for which assessee paidthe ST under coercion / pressure and later when assessee filed the refund of ST bystating services assigned to and performed by sovereign/ public authorities underprovisions of any law or statutory duties were not liable to ST and demand of ST wasalso barred by limitation but revenue denied refund of ST - Demand of ST was raisedon assessee & imposed penalty -Held- Services such as 'Technical Inspection andCertification' were classified u/s 65(108) of Finance act and on top of that the feesand charges collected by the assessee for providing certification service of seeds wereheld taxable therefore liability of ST of assessee was held justified - Since, there wasno allegation of fraud, suppression or wilful misstatement was found against theassessee and also assessee received letter from ministry of agriculture stating thatassessee's services were non taxable services therefore by considering these views

invoking extended period of limitation was not required and penalty imposed onassessee was set-aside :CESTAT (Para 2, 4, 11,14)


Sambhaji Pandurang Hulawale Vs CCE (Dated: July 17, 2017)

ST - RIPS - Rent agreement has been entered between the three persons and thelessee - all the persons were paid different amounts of rent after deduction of TDS -amount received by others cannot be clubbed with rent received by appellants - sincerent received is much below the threshold limit of 8 lakhs, no service tax is payable -demand not sustainable - impugned order set aside and appeal allowed: CESTAT[para 4, 5]



Rajhans Agriculture Transport Company Pvt Ltd Vs CCE, C & ST (Dated: June8, 2017)

ST – Tax demand confirmed on the services of Harvesting sugarcane andtransportation thereof to sugar factory – appeal to CESTAT – Appellant submittingthat in their own case, on identical issue, relief has been granted as reported in 2017-TIOL-384-CESTAT-MUM . Held: Issue is no more res integra – Tribunal, in appellant'sown case has held that harvesting and transporting of sugarcane to the factory willnot fall under the category of ‘Business Auxiliary Services' – following the same,impugned order set aside and appeal allowed: CESTAT [para 5]


Jwalla Security Force Vs CCE (Dated: June 12, 2017)

ST - Security Agency Service - Appellant admitted that statutory payments had notbeen included for taxable value; that the expenses incurred on rent of office, salary tostaff, charges toward electricity, stationery, courier, travel and uniforms had also beenexcluded for the same reason; that rates of service tax for 2006-07 was [email protected]% instead of 10.2% for some months; that Rs.5,63,713/- was received from aunit in a SEZ - Impugned order held the entire receipts as liable to tax as gross valueof service, confirmed tax demand for normal period and allowed cum-tax benefit andsetting aside demand in relation to services provided to SEZ; tax liability ofRs.26,22,867/- crystallised under o-in-o was modified to the extent of exclusions -appeal to CESTAT. Held: On a close reading of the nature of the taxable service, aswell as the definitions extracted, it would appear that the consideration that isintended to be taxed is the totality of that which is receivable by the service providerfrom the service recipient; as the service provider is fully responsible for theestablishment, administration, upkeep and operation of the security services requiredby the customers, it would not be possible to draw a distinction between the portionof the reconsideration that does not relate to these activities - tax liability crystalliseson the gross value of services subject to the various deductions permitted byCommissioner(A) - appellant has discharged tax liability with interest - as differinginterpretations were being taken in the matter of inclusion and exclusion, it would notbe appropriate to saddle the non-payment or short-payment of tax with a motive ofdeliberate evasion - invoking provisions of section 80 of the FA, 1994, penalty is setaside - impugned order is modified: CESTAT [para 6, 7]


Ichibaan Automobiles Pvt Ltd Vs CST (Dated: June 12, 2017)

ST - Appellant, a car dealer also acts as 'direct sales agent' for various financingcompanies by referring customers who seek to finance their vehicles - A part of thecommission earned for such referrals is sometimes surrendered to enable reduction ininterest rates charged on the customer by the financier – SCN alleged that an amountof Rs.9,59,01,534 had not been subjected to tax owing to non-inclusion of thissurrendered portion in the value of gross commission received – Appellant contendedthat it had received a commission of Rs.6,27,49,754/- on which tax had been paidand that the amount now covered in the show cause notice had never been receivedby them as commission – demand confirmed by AA along with penalty – appeal toCESTAT. Held: Identical dispute had been examined in the case of Toyota Lakozy [2016-TIOL-3152-CESTAT-MUM ] wherein it is held that the manner in which moneyflows between various parties is critical for determining the rendering of a service andconsideration thereof, as well as the taxability of the service; that only a detailedexamination of the transactions would isolate the components thereof for merging thedisputed amount with the 'Business Auxiliary Service' rendered to financing companies– Impugned order has not done so and has merely assumed that the unaccountedamount was taxable by reference to 'gross value' – this uncovered gap must bebridged, therefore, the impugned order is set aside and matter is remanded to originalauthority for reconsideration: CESTAT [para 4, 5]


Sunil Hi-Tech Engineers Ltd Vs CCE (Dated: July 13, 2017)

ST - Merely because a combined show cause notice covering various charges is issuedthe benefit of the section 73(1A) read with sub-section 73(2) of FA, 1994 cannot bedenied: CESTAT [para 4.1 to 4.8]



Catapro Technologies Vs CCE (Dated: May 3, 2017)

ST – Issue is whether royalty received by the appellants from M/s MDB Chemicals forproviding technical knowhow for manufacture of 1,2-Methyl ende di-oxybenzene isliable to service tax under the category of "Intellectual Property service”. Held: Issueis no longer res integra - In appellant's own case 2017-TIOL-19-CESTAT-MUM , whileallowing the appeal, the Bench has held that to be liable to tax the provider must bethe holder of the intellectual property right which is one that is enforceable against allothers and not just against the recipient of the service; that right that is transferred isthe technical know-how which may be a service but is not in relation to intellectualproperty service which pertains to intellectual property rights – impugned order is notsustainable, hence set aside – Appeal allowed: CESTAT [para 4, 5]


EM EN Man Power Service Vs CCE (Dated: June 30, 2017)

ST - Assessee is registered with Department, providing service under head 'ManPower Recruitment or Supply Agency Services' - SCN was issued alleging thatpursuant to search in premises of assessee from documents recovered revealed thatin certain cases assessee had charged ST on gross amount received from customers -But in several cases, assessee had charged ST only on amount shown in invoices, as

service charges, instead of charging ST on gross amount of services rendered - Shortpayment of ST took place, only due to ignorance, as they were made to understandby these service receivers, that ST is payable on amount of servicecharged/commission only paid to assessee by clients and stopped payment of ST ongross amount charged - Further, on being so explained by Department that taxliability is on gross amount, they have deposited entire tax with interest and alsopleaded that assessee is semiliterate and have studied only up to class-8, and couldnot prevail over industrial clients and CA and their qualified Managers - Commissioner(A) was pleased to confirm demand and penalty under Section 77 and 78 of Act, onlydeleting the penalty under Section 76 of said Act - SCN is bad to extent of demand ofRs.8,25,046/-, which was admittedly paid before the issue of SCN - Accordingly, SCNto this extent is not sustainable and no penalty is imposable on this amount, underany of the sections - So far, balance demand of Rs.1,25,055/-is set aside and matteris remanded to Adjudicating Authority, for redetermination, in accordance with law,after providing opportunity to assessee of being heard and leading evidence: CESTAT


CCE Vs Indian Oil Corporation Ltd (Dated: May 3, 2017)

ST – Toll tax paid by the transporter and reimbursed by the respondent is not liable toservice tax as part of the gross value of the GTA service - toll tax per se is not aservice charge and the same is a statutory levy enumerated at Sr. No. 59 of list-II(State list) in the Seventh schedule of the Constitution of India - service tax is notchargeable on any statutory levy whereas it is chargeable only on the service charge –impugned order passed by Commissioner(A) upheld and Revenue appeal dismissed:CESTAT [para 5]



CST Vs Fedco Paints And Contracts (Dated: March 8, 2017)

ST - Respondent had during the relevant period sought clarification from thedepartmental officers and subsequently claimed benefit of Notification No. 04/2004-ST, on the ground that they rendered the services to SEZ developer and in SEZ –Audit team opined that the respondent is not entitled for the exemption for the reasonthat he was a sub-contractor and was never awarded a contract by SEZ developer –AA dropped the proceedings, therefore, Revenue in appeal before CESTAT. Held:Impugned Notification exempts any taxable service provided by any service providerfor consumption of the service within a Special Economic Zone, subject to following /adhering to the conditions - It is undisputed that all the conditions mentioned in thenotifications are satisfied by the SEZ developer i.e. M/s Reliance Industries Ltd. - Onthe face of such factual matrix, the adjudicating authority was correct in coming to theconclusion that the proceedings initiated by show cause notice issued needs to bedropped – moreover, in view of the decision in Sujana Metal Products - 2011-TIOL-1173-CESTAT-BANG and the fact that the provisions of Section 26 of the SEZoverrides provisions of other law and exempts any services/taxes if the same areconsumed in a SEZ – no merit in appeal of Revenue – Appeal rejected: CESTAT [para6, 7]


Continental Mercantile Corporation Vs CST (Dated: May 3, 2017)

ST - Export of Services - Dispute by department that wherever the payment wasreceived in foreign exchange and DFRC was not submitted it was not considered asexport of service - demand confirmed. Held: Contention of department is not agreed

with for the reason that as per the statutory provision, the only requirement is thatagainst the export of service, payment should be received in foreign exchange - Ifthat is satisfied, even though the DFRC is not submitted the status of the exportcannot be rejected as DFRC is only a procedural requirement - If otherwise it isestablished that the payment was received in foreign exchange the same is to beaccepted as an export of service - as regards those cases where the payment wasreceived in Indian Rupees, there is no dispute that these payments were receivedthrough foreign banks i.e. HSBC, Bank of Bahrain & Kuwait and Tribunal in the case ofSun-Area Real Estate Pvt. Ltd.- 2015-TIOL-956-CESTAT-MUM has held that suchpayment is to be considered as payment received in convertible foreign exchange -services provided are indeed export of services, therefore, same is not liable toservice tax - impugned order set aside and appeal allowed: CESTAT [para 4, 5]


Bajaj Allianz Life Insurance Company Ltd Vs CCE (Dated: March 8, 2017)

ST - Penalty imposed u/s 78 of FA, 1994 - Adjudicating authority concluding thatthere was suppression of fact with intention to evade service tax and hence penalty isimposable - appeal to CESTAT as regards imposition of equivalent penalty. Held:Appellant had been filing service tax returns with the authorities and had also shownthe amount of tax liability i.e. tax discharged by them - Wrong application of rate ofservice tax liability for the period 24/02/2009 cannot be held against them as anintention to evade payment of tax, as subsequently the appellant have discharged theservice tax liability correctly at the applicable rate i.e. 12.26% - provisions of Section73(3) of the FA, 1994 are specifically provided for the purpose of discharging short-levy, non-levy with interest; on his own ascertainment by the assessee or on beingpointed out by an officer, then the said provision mandates for non-issuance of showcause notice - lower authorities, therefore, should not have issued any show causenotice to the appellant, who has discharged the service tax liability which was short-paid by them for the period 24/02/2009 to 28/02/2009 - impugned order imposingequivalent amount of penalty under Section 78 of the Finance Act, 1994 isunsustainable - Appeal is allowed to this extent: CESTAT [para 7, 8]


Ultratech Cement Ltd Vs CCE (Dated: February 8, 2017)

ST - W hether the appellant is required to discharge service tax liability under GTA onreverse charge basis for the period 01.01.2005 to 31.12.2009 in respect of amountspaid by them to two transport companies for movement of material i.e. 'clinker' fromtheir own jetty to the cement manufacturing premises – lower authorities held againstthe appellant, therefore, appeal before CESTAT. Held: In the records it is nowherementioned that these two transport companies issued consignment note eitherindividually or jointly for the movement of the cement clinkers from jetty to themanufacturing premises of the appellant – as per rule 4B of the STR, 1994, the goodstransport agency shall issue consignment note to respondent in relation to thetransport of goods in a road carriage – from the Explanation to the rule, it is clear thatthe consignment note should have specific particulars, therefore, interpretation bylower authorities that any document, by whatever name, needs to be considered asconsignment note is misplaced as in this case the transporting companies have onlyraised invoices for transportation of cement clinkers as per the contract and which didnot satisfy the requirement of consignment note – it cannot, therefore, be said thatGoods Transport Agency services are rendered – impugned order is unsustainable,hence set aside & appeal is allowed: CESTAT [para 6.2, 6.3, 6.5]


CST Vs Tata Tele Service Ltd (Dated: June 8, 2017)

ST – Revenue in appeal against o-in-o pleading that although there was a proposal inthe SCN for imposition of penalty u/r 15(1) of CCR, the adjudicating authority hadneither discussed nor passed any order on such proposal – Respondent submittingthat against the same order, the assessee had appealed before the Tribunal and thesame was disposed of as - 2015-TIOL-628-CESTAT-MUM whereby though the servicetax demand was upheld for the normal period of limitation, the penalties were setaside, therefore, Revenue appeal does not survive. Held: Though Tribunal hasdisposed of all the appeals of the respondent against the very same impugned orderbut impugned order did not decide penalty proposed in the SCN under Rule 15(1) ofCenvat Credit Rules, 2004, therefore, this issue was not subject matter of therespondent's appeal - Since issue of penalty under Rule 15(1) was not decided by theCommissioner, the matter limited to the proposal of penalty under Rule 15(1) made inthe SCN is yet to be decided by the Commissioner – matter, therefore, remanded tothe Commissioner: CESTAT [para 4]


Oil and Natural Gas Corporation Ltd Vs CCE (Dated: April 28, 2017)

ST – Appellant during the period April 2007 to January 2011 availed CENVAT credit inrespect of service tax paid by M/s BPCL on the strength of debit notes – departmentissued SCN alleging that as per rule 9(1)(f) of CCR, 2004, invoice, bill or challanissued by provider of input service on or after 10 September 2004 are only eligibledocuments for availing CENVAT credit – AA denied credit and imposed penalty –appeal to CESTAT. Held: Nomenclature has no significance – important criteria is thatthe information mentioned in rule 4A of STR, 1994 should appear in the documentswhich is raised for service charges as well as service tax component – it can be seenthat the debit note clearly carries all the information required under rule 4A of theSTR, 1994 – nature of invoice or bill or challan or debit note are one and the sameand treatment of all these documents are given in the same manner in the books ofthe assessee – against this debit note, service recipient is under obligation to makepayment of service charges along with service tax, therefore, there is no reason todeny the credit of service tax taken on the strength of a debit note – issue is also nolonger res integra in view of decisions of Tribunal in this regard – impugned order isset aside and appeal is allowed: CESTAT [para 5]


Indian Hotel Company Ltd Vs CCE (Dated: July 7, 2017)

ST - Appellant had never advised the foreign clients to approach the personsappointed in the foreign countries for booking accommodation in the hotel owned bythe appellant - appellant is not in the picture as far as receipt of any taxable servicefrom the overseas clients is concerned - Since the services were provided andconsumed outside India, no tax liability arises under reverse charge - Impugned orderset aside and Appeal allowed: CESTAT [para 6, 7]



CST Vs Ambe International (Dated: February 14, 2017)

ST - Refund - Rebate of tax paid on input services - Appellant, pursuant to thecontract with their client M/s Bechtel & Company, LLC Sultanate of Oman , recruitedand supplied potential labour to work on project of their client at their SoharAluminium Smelter Project - payment was received by appellant in convertible foreign

exchange, therefore, appellants filed rebate claim of Rs.10,75,254/- on the servicesexported out of India on 17.03.2008 in terms of notification 11/2005-ST - AA rejectedthe rebate claim - Commissioner(A) allowing appeal and, therefore, Revenue in appealbefore CESTAT. Held: Rebate claims are filed as per Notfn. No. 11/2005-ST and thesaid notification is issued u/r 5 of the Export of Services Rules, 2005 - The saidnotification does not specify any time limit for filing rebate claims and in the absenceof any time limit in the notification, reliance on provisions of Section 11B to reject therefund claims as time barred seems to be incorrect - impugned order upheld ascorrect and legal - Revenue appeal rejected: CESTAT [para 7, 11]


CST Vs Arisaig Partners India Pvt Ltd (Dated: April 6, 2017)

ST – Issue involved in all appeals is regarding refund of CENVAT credit of service taxon input services which are used for providing output services which are exported –Commissioner(A) held in favour of respondents and Revenue in appeal beforeCESTAT. Held: Oral prayer made by AR for raising additional grounds is rejected asthere is no show cause notice issued on the specific ground as sought to be taken –Moreover, the only point raised by the department in the grounds of appeal is that theRevenue is in appeal against the judgment of Tribunal in case of AMP Capital Advisors- 2015-TIOL-1001-CESTAT-MUM and Paul Merchant Ltd - 2012-TIOL-1877-CESTAT-DEL – since order of lower authorities are well reasoned and are following the citeddecisions, impugned orders are correct and need no interference – appeals arerejected: CESTAT [para 8, 9, 12]


Ginni Filaments Ltd Vs CCE (Dated: June 29, 2017)

ST - Assessee is manufacturer and exporter of cotton garments and filed refund claimof ST paid in course of services received in their business of export - Refund has beenrejected with respect to various services - Assessee had filed the documents, asrequired - Board has clarified that invoices/bills issued by suppliers of taxable servicesare sufficient evidence that services are taxable services and refund claim should beprocessed based on input invoices/bills/challans showing ST charged by serviceproviders-as clarified in Circular 106/9/2008-ST - Assessee have incurred services fortransport of goods in course of export to Bangladesh, wherein goods are factorystuffed and sealed and permitted for export - As explained, GRN issued by transportershows that goods have been packed in container - Further, such details are co-relatable with let export order and invoice of assessee - Accordingly, refund for sameis to be allowed - In view of precedent ruling in assessee's own case 2017-TIOL-2209-CESTAT-ALL , these two appeals stand allowed, and impugned orders set aside to theextent refund have been rejected: CESTAT

2017-TIOL-2698-CESTAT-HYD

Jami Chakradhar Vs CCE, C & ST (Dated: June 31, 2017)

ST - Matter was listed for ascertaining the compliance whether assessee havecomplied with mandatory deposit as per provisions of Section 35F of CEA, 1944 -Since assessee have not complied with said provision, appeal dismissed as non-maintainable: CESTAT


BA Continuum India Pvt Ltd Vs CST (Dated: April 28, 2017)

ST - Appeal was filed after delay of 34 days after the initial period of 60 days -Commissioner(A) dismissed the appeal on limitation on the ground that the appealwas filed beyond the prescribed period of three months including the condonableperiod of 30 days - appeal to CESTAT. Held: It is a settled law that when in aparticular Act limitation is prescribed then one need not take recourse to LimitationAct, 1963 - in the CE Act, the limitation for filing an appeal is 60 days plus 30 days asa condonable period, therefore, Commissioner (A) has no power to condone the delayof more than 30 days - Issue is also squarely covered by the Supreme Courtjudgment in Singh Enterprises - 2007-TIOL-231-SC-CX - no infirmity in the order ofthe Commissioner(A), therefore, impugned order upheld and appeal is dismissed:CESTAT [para 4]


CST Vs Nihilent Technologies Pvt Ltd (Dated: July 12, 2017)

ST - Rent-a-cab service is an Input service as motor vehicle is capital goods for theservice provider - consequential refund u/r 5 of CCR, 2004 properly held as admissible- Revenue appeal dismissed: CESTAT [para 5]



Siddheshwar Industries Pvt Ltd Vs CCE (Dated: June 29, 2017)

ST – O-in-O was received by appellant on 01.09.2013 and appeal was filed on04.09.2014 – appeal filed before Commissioner(A) dismissed on the ground of delay –appeal to CESTAT. Held: Statutory authority has no power to condone the delay infiling appeal beyond the limitation prescribed by law as held by the Supreme Court inSingh Enterprises 2007-TIOL-231-SC-CX – appeal dismissed as not maintainable:CESTAT [para 2, 3]


Jaydip Balkrishna Rishi Vs CCE (Dated: June 16, 2017)

ST - Supply of Manpower - Appellants were engaged by M/s Jyoti Structures Ltd. forproviding manpower - appellant submitting that they are basically estate agents; eventhe bills were being prepared by M/s. Jyoti Structures and the appellant used to signthe bills, deposit cheque in the bank and hand over the amount in cash to JyotiStructures for labour wage payment; that they were not actually involved in supplyingand managing manpower to Jyoti Structures and they were not aware about servicetax applicability and, therefore, they could not take fulfill the service tax obligation;that they have paid the entire amount of service tax along with interest immediatelywhen the same was pointed out by the Revenue and are now contesting the penaltyimposed. Held: No evidence produced in support of the claim that they were supplyingservices mainly on paper and the entire activity was done as dummies for M/s JyotiStructures - Commissioner(A) has observed that in today's financial world it is notfeasible to deal in crores of rupees completely in cash and without anydocumentation; that had not the preventive officers proactively investigated andscrutinized the books of accounts/records and documents of the appellants, theappellant would have succeeded in escaping the payment of service tax - facts have

not been denied and appellant have not made any ground for invocation of Section 80of FA, 1994 or to establish their bonafide - no leniency can be shown to the appellant- no merit in appeal, hence dismissed: CESTAT [para 5, 6]


Bhima Ssk Ltd Vs CCE (Dated: June 16, 2017)

ST – Whether Service Tax is payable on GTA services for transportation of sugarcanefrom farmers to the Sugar Mills when no consignment note was issued for suchtransportation. Held: In appellant's own case 2015-TIOL-2134-CESTAT-MUM , it isheld that in absence of consignment note, services cannot be considered as GTAservice and accordingly, Service Tax cannot be levied – following the same, impugnedorder is set aside and appeal is allowed: CESTAT [para 3, 4]


Harbans Sethi Vs CCE (Dated: May 16, 2017)

ST - Assessee is a proprietor of M/s.Goodwill Advance Construction Co., engaged inconstruction activity as a sub-contractor in various projects - Dispute relates to taxliability of assessee with reference to work carried out by them in respect of threeprojects - Assessee claimed that they have rendered service as a sub-contractor andfull ST liability on whole contract has been discharged by main contractor, requiresverification - Similarly, it is to be noted that Board vide Circular dated 7.10.98 didclarify that no ST is required to be paid by sub-contractor provided that maincontractor paid the ST on services rendered by him, in respect of same servicecategory - Though a revised clarification was issued vide circular dated 23.08.2007,the fact remains that there is a room for bona fide belief on the part of assesseeregarding non-liability to ST for works carried out in their capacity as sub-contractor -Matter remanded for a fresh decision: CESTAT


Yamazaki Mazak India Pvt Ltd Vs CCE (Dated: July 12, 2017)

ST – Indian agent who undertakes marketing in India of goods of foreign seller andreceives the commission in convertible foreign exchange would qualify for the benefitof export of service – Board Circular dated 24-2-2009 simply prescribed that the saidservice qualifies as exports if recipient is located outside India, therefore, bonafidebelief of the appellant cannot be dislodged – extended period of limitation cannot beinvoked – Appeal allowed: CESTAT [para 5.1, 5.2]



Shapoorji Pallonji Infrastructure Vs CST (Dated: May 23, 2017)

ST - Appellants engaged in operation of power plant are aggrieved by demand of STon services provided for maintenance and repair of power plant, on MajorMaintenance Reserve (MMR) and on activities of operation of power plant to produceelectricity - Appellants had split Operation Fee received by them as 'OperationCharges' and 'maintenance charges' in ratio 55% and 45% respectively - Out of the45%, they were deducting cost of spares and consumables used for suchmaintenance/repair and only on the balance amount, ST liability was discharged - For

the purposes of ST law, deduction of cost of materials and consumables can bepermitted only if there is a sale involved and there being no sale involved in entireexercise, appellant has necessarily to discharge tax liability on entire gross value ofmaintenance or repair services on full amount demarcated by them as maintenance orrepair service, being 45% of total amount paid to them.

As regards to MMR, discernably, MMR is a reserve created under a trust for purpose ofproviding funds for meeting expenses in case of major maintenance of power plant -MMR can by no stretch of imagination be considered as a part of maintenance orrepair fees paid or payable to appellants - Therefore, they cannot be considered astaxable value under this head - Sole purpose is not management of immovableproperty - Further, management, if any, of power plant is done by appellants and isonly incidental to activity of generation of electricity - The activity carried out in thepower plant is not solely management of power plant, but operation of the same - It isvery much clear that management of immovable property does not include operationactivities - In addition, it cannot be said that appellants are doing managementservice for the reason that management service is done by appellants to themselvesand not to any other person - The appellants are operating the power plant togenerate electricity on behalf of owner.

Taking note of the fact that as there was undeniable confusion on the taxability perse, on these services, penalties imposed in orders impugned are set aside - Sinceappellants did not disclose entire gross value of taxable services in ST-3 returns andreturns reflected the value only after deduction of cost of materials, notice issuedinvoking extended period is right and proper: CESTAT

2017-TIOL-2672-CESTAT-BANG

Shrinidhi Telefilms Vs CCE (Dated: April 20, 2017)

ST - Assessee engaged in providing taxable services under category of "ProgrammeProducer's Service" and are registered with ST department - Assessee had enteredinto an agreement with M/s Zee News Ltd for producing TA serials at Rs 10,000/- perepisode - They had collected the ST but did not deposit the same to Govt exchequer -Demand confirmed alongwith interest and penalty - Impugned order passed byCommissioner is justified because assessee has collected the ST but did not depositthe same in the Govt Treasury which itself shows that there was malafide intention toevade payment of ST - Assessee failed to give any reasonable explanation as to whythe ST was not deposited in Govt Treasury: CESTAT


Knoah Solutions Pvt Ltd Vs CCE, C & ST (Dated: March 28, 2017)

Service Tax – Refund under Rule 5 of CCR 2004 – Appellant is registered under BASand filed an application for refund of unutilised CENVAT credit under the cited Ruleread with Notification No.27/2012-CE(NT) dt. 18/06/2012 for the period October 2012to December 2012 - After adjudication as well as the first appellate stage, a portion ofrefund stands rejected, now agitated herein.

Held: Portion of refund rejected relates to input service credit availed on (i) Manpowerrecruitment agency Services; (ii) Security Agency Charges (iii) Internet Charges; (iv)Telecommunication; (v) Auditing Charges; (vi) House Keeping; (vii) Cleaning/ PestControl; (viii) AMC for Xerox/Printing machine; (ix) ISMS certification & quality controlservice; (x) AMC charges for Fire alarm systems; (xi) UPS maintenance charges; (xii)AMC charges for HVAC Equipment (heating, ventilation & AC); (xiii) Website design &development charges; (xiv) Renewal of windows (operating system) license; (xv)Common area maintenance; and (xvi) Banking and Other Financial Service – Theauthorities below have rejected the refund claim observing that the input services do

not have nexus with the output services provided by the appellant - The issue whetherthe inputs services given in the above table are used by the appellant and are eligiblefor refund has been analysed by the Tribunal in the appellant's own case - Followingthe same, the denial of refund is unjustified; the impugned order is set aside withconsequential reliefs. [Para 4]


Sakal Papers Pvt Ltd Vs CCE (Dated: July 7, 2017)

ST - Members subscription received by the forum run exclusively for women by SakalPapers Ltd. is not chargeable to service tax – Impugned orders set aside and appealsallowed: CESTAT [para 4]



Mohan Goldwater Breweries Ltd Vs CCE & ST (Dated: February 1, 2017)

ST - Assessee provided facility for manufacturing and bottling of beer - Assesseegiven its factory premises to M/s UBL for manufacturing and bottling of beer at its ownbrewery under an agreement for consideration of price in form of facility fee -Revenue alleged that facility fee was chargeable to ST under 'Renting of ImmovableProperty Service' - Further assessee provided certain services and incurredexpenditure towards arrangement of supervisors, executives, workers & contractorsemployed by assessee and further incurred expenditure on insurance, repairs andmaintenance of equipments, plant & machinery for which assessee received amountfrom M/s UBL in the form of reimbursement and revenue alleged these servicesclassified under 'Support Service of Business or Commerce' and liable to ST - SCN wasissued demanding ST with interest and imposed penalty - Assessee challenged thedemand as its barred by the limitation - It was held that assessee didn't give land andbuilding along with its fixtures however assessee let out only plant & machinery andthe manufacturing facility which was not classifiable under 'Renting of ImmovableProperty Service' - Regarding the reimbursement received by assessee from the UBLfor the expenses incurred was rightly classified under the 'Support Service of Businessor Commerce' and taxable u/s 65(104c) of Finance Act, 1994 - Since, assesseeproperly documented and recorded the transactions in the books of accounts soextended limitation period cannot be invoked - Matter remanded back to theadjudicating authority for recalculating the demand of ST only for the period withinthe limitation: CESTAT


Krishna Trading Company Vs CCE (Dated: June 6, 2017)

ST - Assessee is a consignment agent acting on behalf of various consignors of ironand steel products - They paid the freight on behalf of consignors as their agent andrecovered the same from consignors - Assessee has not given any proof of paymentof Service Tax on goods transport agency service by consignor manufacturers butthey submits that they will collect said evidence/ proof of payment from concernedconsignors and submit the same to Department - Assessee also pleaded that whenservice tax has been paid already the same cannot be charged again from assessee -In view of CBEC's letter dated 17.12.2004, impugned order is set aside and matter isremanded to the original adjudicating authority: CESTAT


Bhansali International Vs CCE (Dated: March 1, 2017)

Service Tax - Rejection of refund claim filed under Notification No.41/2007-ST is thematter in dispute.

Held: The fact is not under dispute that the services in relation to THC charges, bill oflading charges, origin haulage charges, repo charges etc., were used/utilized by theappellant within the port for exportation of the goods – as services were used withinport, irrespective of classification refund benefit should be available - refund benefitcannot be denied for the reason that the debit note is not the prescribed documentunder the Service Tax Statute – As appellant submitted the debt notes before thetribunal, the matter should go back to the Original Authority for verification of thedocuments, to be submitted by the appellant – Appeal disposed – (Par a 6, & 7).


Rajasthan Tourism Development Corpn Ltd Vs CCE (Dated: March 10, 2017)

ST - BAS - Act of stopping the buses only in front of contracted emporiums and not infront of others is to provide potential customers to the emporium resulting inpromotion of sales - Facilitation fee received from emporium owners is nothing but“commission” and liable to service tax under Business Auxiliary Service - however,being a State Govt. undertaking, they cannot have any intention of deliberatelyevading tax and, therefore, demand is sustainable only for the normal period ofdemand - matter remanded to the Adjudicating authority for re-computing thedemand falling within the normal time limit: CESTAT [para 9 to 12]



Hindustan Zinc Ltd Vs CCE (Dated: December 15, 2016)

ST - Assessee engaged in manufacture of Lead Zink & Bulk concentrate - It is allegedthat it had rented out housing quarters and other premises on rent to its contractorsother persons, but did not pay ST under taxable category of Renting of Immovableproperty service - Assessee submits that housing quarters are located at a differentplace, than other premises were not considered by authorities below - Rather,demand was confirmed in terms of explanation-2 contained in Section 65(105)(zzzz)of FA, 1994, holding that assessee did not produce any evidence to show thatresidential premises are located at a place, away from commercial premises - Further,submission of assessee that for purpose of computation of threshold exemption limit,ST paid on GTA Services in capacity of recipient of service should not be considered,has not been taken into consideration by authorities below - Matter should go back tooriginal authority for passing the reasoned and speaking order on basis of documentsto be produced by assessee: CESTAT


J Mitra and Company Pvt Ltd Vs CST (Dated: May 31, 2017)

ST -(i) Whether Business Auxilliary Services (BAS) rendered by the assessee to theirforeign client qualifies as export of service (ii) Whether hiring-out industrialendoscopes would qualify as "supply of tangible goods for use service? or not

HELD - (i) Appellant has been appointed by M/s.Olympus Singapore PTE Ltd.,Singapore [client] as their exclusive agent in India for promotion of sales and servicesof M/s.Olympus - BAS rendered by the appellant is for their client and its consumptionis also by their client, who is based in Singapore - merely because the promotion ofsales and services of the client is for the Indian consumers, it does not mean that BAS

rendered by appellant is consumed within the country, when in fact they are renderingservice to their client - thus, consumption of services rendered by appellant is inforeign land, i.e. in Singapore by the service recipient, M/s.Olympus - the subjectmatter is covered by the Tribunal's decisions in the cases of Paul Merchants Limited [2011-TIOL-1448-CESTAT-DEL ] and Gap International Sourcing (India) Pvt. Ltd. [2014-TIOL-465-CESTAT-DEL ] - following the observations made in the above cases,in this regard, the impugned order is set aside and appeal allowed: CESTAT[para 5,5.1, 5.2]

(ii) If effective control and possession of goods has been passed on to the customer,then it may come under the category of sale otherwise the subject activity would becovered under the category of "supply of tangible goods for use service" -each andevery transaction, therefore, is required to be examined independently -if in any-onetransaction, no operator has accompanied the endoscope and the customer handlesthe endoscope taking its effective control and possession, then it may be called atemporary sale -but if in any transaction, endoscope is accompanied by an operator,where the effective control and possession lies with the operator, such transactionwould be covered by the "service of supply of tangible goods for use? -therefore, thisissue needs examination transaction-wise at the level of original adjudicatingauthority, who shall decide the matter after giving necessary opportunity of personalhearing and of submission of documentary evidence to the assessee -the matter,consequently, is remanded to the original adjudicating authority for fresh decision:CESTAT [para 6]


Johari Digital Healthcare Ltd Vs CCE (Dated: January 27, 2017)

Service Tax - Denial of refund claim under Notification No. 41/2007-ST dated06.10.2007 on various grounds - Appeals against the same.

Held: The issues are admittedly covered in favour of the appellants vide the orders ofTribunal referred to by the appellant - Therefore, appeals are allowed to the extentcovered by the precedent orders - Regarding rejection of refund claim of service taxpaid on services relating to collection of foreign exchanges, the service tax wascollected by the bank for realization of export proceeds and vouchers were issued bythe bank. Therefore, there is no dispute about export of goods and charges collectedby the bank for realization of export proceeds. Thus, refund claim is not deniable forthe procedural lapses, if any and same should be allowed. Regarding rejection ofrefund claim of service tax paid on cleaning services, since the appellant is notpressing for refund on this ground, the same is rejected. Regarding rejection of refundof service tax paid on technical testing and analysis services, the consultant is notpressing for the same, therefore, refund is rejected on this count. (para 10)


CST Vs Cams Club (Dated: July 13, 2017)

ST - Rule 5(2) of ST Determination of Value Rules, 2006 - Respondent after producingthe programme on their own transferred the copyright in the said programme to M/sSanvedana Entertainment and M/s Percept Picture Company - they cannot, therefore,be called as pure agent so as to exclude reimbursable expenses - Adjudicatingauthority has also not decided as to whether respondent's service falls under the headof 'T.V. and Radio Programme Production Service' - matter remanded: CESTAT [para3]



CST Vs K and A Securities Pvt Ltd (Dated: April 25, 2017)

ST - Assessee engaged in trading of securities as stock broker and are registered as aMember of National Stock Exchange and Mumbai Stock Exchange - They wereregistered with ST Department under category of stock broking, banking and otherfinancial services and BAS - Dispute relates to valuation of taxable service renderedby assessee - Revenue contend that assessee is collecting "other charges" and did notpay ST on such charges - On the other hand claim of assessee is that these othercharges are nothing but transaction charges paid to stock exchange and turnover feeand stamp duty - Contract note itself does not elaborate the nature of such othercharges - Categorical documentary evidence to that effect is not on record - Further,claim of assessee to have acted as "pure agent" can be considered only on fulfillmentof conditions mentioned in Rule 5 (2) of Service Tax Valuation Rules - Matterremanded to Original Authority for a fresh examination of supporting evidencessubmitted/to be submitted by assessee: CESTAT


Noble Grain India Pvt Ltd Vs CCE (Dated: May 15, 2017)

ST - Assessee engaged in export of soya extraction meal and were registered with STDepartment - They have filed refund claims for ST paid by them on various servicesavailed in connection with export of their goods in terms of Notfn 41/2007-ST - Saidclaims were rejected on various grounds - As regards to rejection on the ground thatprovider of service was registered with Department as C & F Agent and as such,refunds towards ST paid for availing CHA services are not admissible - Board videclarification dated 12.03.2009 specifically mentioned that said notification provides forexemption by way of refund - Such refund does not require verification of registrationcertificate of provider of service - THC, bill of lading charges and documentationcharges are covered under port services and tax paid on such services are eligible forrefund under said notfn - Inspection and certification service was availed by them interms of written agreement, which required pre-export inspection and certification ofexport cargo - Purchase contract was also submitted by assessee - Similarly, fortesting and analysis service, bills raised by service provider indicate that theirregistered office address is in Indore - They have supporting documents linking up STpayment with export cargo - Considering the detailed submissions made by assesseeand as per examination in respect of various grounds of rejection, Original Authorityhas not examined the claims in right perspective before rejecting them: CESTAT


CCE Vs Insideview Technologies India Pvt Ltd (Dated: May 29, 2017)

Service Tax - Condonation of Delay - The issue involved in this case is regardingrejection of refund claim filed by respondent herein for the period April 2013 to March2014 periodically in respect of service tax paid on input services.

Held: There is no dispute as to the fact that the respondent is engaged in export ofservices for which he is availing the benefit of services provided by service providerand availed CENVAT credit of the service tax paid by such service provider - The firstappellate authority has come to correct conclusion stating that “there is no need toestablish the relation between the input services and the business of manufacture -When all the conditions of the Notification No. 27/2012-CE (NT) dated 18.06.2012are satisfied, there appears to be no scope for disallowing CENVAT credit on selectedservices and holding its refund ineligible” - Hence, the impugned order is correct andlegal and does not suffer from any infirmity - Impugned order upheld and appeals arerejected - (Para 8).


Rahul Jain Vs CCE & ST (Dated: April 13, 2017)

ST - Assessee, as an individual, engaged in activity of supply of labour to clients -Being an individual engaged in such activity, assessee pleaded that prior to01/05/2006, tax entry mentioned liability to only "commercial concern" which waslater substituted as "any person" - In view of decision in Charanjit Singh Khanuja -2015-TIOL-1205-CESTAT-DEL when an individual engages himself in a commercialactivity, he has to be treated as business or commercial concern - Amendment carriedout w.e.f. 01/05/2006 substituting the term "commercial concern" with "any person"has no impact in such situation - Assessee's plea against tax liability cannot be upheld- Since issue involved is one of legal interpretation, it will not be justifiable to allegemis-statement or suppression against assessee who was rendering service as anindividual - Demand for extended period cannot be legally sustained: CESTAT


Rajshree Enterprises Vs CCE (Dated: March 22, 2017)

ST - Assessee engaged in providing clearing and forwarding agent service - Assesseereceived commission & remuneration along with the reimbursement for expensesincurred on ground rent, telephone, postal charges and electricity as per theagreement with their client - Revenue demanded payment of duty on the grossamount, including the reimbursement amount - Duty demand with interest & penaltywas imposed - Held - Following the ratio in the case of Sangamitra Services Agency,amount received w.r.t. reimbursement of expenditure incurred for providing clearingand forwarding agent services would not be included for calculating the taxableamount: CESTAT (Para2,3,6,7,8)


Shreenath Enterprises Pvt Ltd Vs CCE (Dated: December 20, 2016)

ST - Assessee basically engaged in selling of Silica Sand from mines or from theiryards to customers - Loading of goods on trucks and transportation is arranged byassessee at request of their customers and for that purpose, assessee only arrangedlabours for loading the goods on trucks for on behalf of their customers - Said activityof assessee was considered by Department as "Cargo Handling Services" andaccordingly, ST demand was confirmed along with interest and penalty - SupremeCourt in Sushil & Company – 2016-TIOL-47-SC-ST, by placing reliance on CircularNo.B11/1/2002-TRU dated 1.8.2002, has held that mere supply of labour shall notamount to taxable service under category of "Cargo Handling Service" - Therefore, nomerits found in impugned order: CESTAT


Deogiri Infrastructure Pvt Ltd Vs CCE (Dated: July 4, 2017)

ST – In respect of construction of residential complex, commercial or philanthropicnature of the construction is irrelevant – clarification issued by Board in Circular80/2004 is with reference to Commercial and Industrial construction service - word"commercial" itself does not figure in the said definition of "Construction of Complex"in Section 65(30a) of the FA, 1994 and under which the demand has been issued -there was no basis for the appellant to form any bonafide belief – larger period ofdemand correctly invokable - construction of residential complex to MHADA is taxableunder FA, 1994 – impugned order upheld and appeal dismissed: CESTAT [para 4, 4.1,4.2, 6]



Patil Computers And Services Vs CCE & ST (Dated: January 1, 2017)

ST - Assessee is a proprietary concern and is registered under ST under category ofmaintenance and repair services - They had collected ST and did not deposit the sameto Government Treasury which shows that he has an intention to evade ST - ThoughST along with interest was paid subsequently and present appeal is only confined topenalty imposed under Section 78 of FA, 1994 - In view of judgments relied upon byrevenue in case of Ketan Engineering Services Pvt. Ltd. and also the decision ofGujarat High Court in case of Rajeshree Dyg. & Ptg. Mills (P) Ltd., and in case of TopSecurity Ltd. 2015-TIOL-2751-HC-DEL-ST, no infirmity found in impugned order andsame is upheld by dismissing the appeal: CESTAT


CC, CE & ST Vs Vitech Systems Asia Pvt Ltd (Dated: May 11, 2017)

ST - Appeal filed by revenue against impugned order on the ground that FirstAppellate Authority has set aside the O-I-O which denied the refund of ST paid on DGRent, Telecommunication Services, Manpower Recruitment Agency Services, HouseKeeping Services, Professional/Management Consultant Services and Installation,Testing and Commissioning Services of Bio-metric Attendance System - It is clearfrom findings of First Appellate Authority, that they are correct and in consonance withlaw which has been settled by various decisions of Tribunal - Nothing found wrong infindings recorded by First Appellate Authority, more so when he is following ratio ofvarious decisions given by Tribunal and higher courts, all services are eligible to beavailed as CENVAT Credit and since assessee is exporting services, is eligible forrefund of ST paid on such services: CESTAT -


Zila Purva Sainik Bahudeshiya Vs CCE (Dated: January 19, 2017)

ST - Assessee is a cooperative society engaged in providing security services - Disputeis relating to their liability for ST for rendering such services - Demand confirmedalongwith penalties under Section 76, 77 and 78 of FA, 1994 - Issue relating taxliability of assessee for the period, prior/post 18/04/2006, has been settled byTribunal in Bhootpurva Sainik Society 2011-TIOL-1421-CESTAT-DEL where assesseewas also one of the parties for bunch matters and for the period prior to 18/04/2006,assessee were held to be not a " commercial concern " and not liable to ST - Furtheras they are brought to tax net only w.e.f. 18/04/2006 their entitlement for initialturnover upto Rs. 4 lakhs in terms of exemption available to small service providerduring material time has also to be considered - These issues alongwith quantificationcan be examined by the Original Authority, afresh: CESTAT


CCE, C & ST Vs Morning Star Agencies (Dated: February 10, 2017)

ST - Assessee, a proprietary concern were acting as a distributor of cellular mobiletelephone service for and on behalf of Chief General Manager, BSNL Kerala Circle asper the agreement entered into between them - On the basis of a specific intelligencethat assessee was engaged in providing BAS to M/s. BSNL without obtaining STRegistration and without paying ST, a SCN was issued - Original authority confirmedthe demand alongwith penalty while Commissioner (A) by impugned order acceptedthe appeal of assessee by relying upon decision of Tribunal in case of M/s. South East

Corporation 2007-TIOL-1574-CESTAT-BANG - Aggrieved by decision of Tribunal,Department filed an appeal before Kerala High Court who dismissed the appeal ofRevenue - In view of judgments of Tribunal and Kerala High Court on similar issue, nomerit found in appeal of the Department and consequently, same is dismissed:CESTAT


Girna Organics Pvt Ltd Vs CCE & ST (Dated: July 7, 2017)

ST - Excisable activity in the manufacturing unit and service related to renting ofimmoveable property are two distinct activities and, therefore, the availment ofcenvat credit in relation to manufacturing activity cannot be applied to their service ofrenting of immovable property - benefit of notification 6/2005-ST available toappellant in respect of services of Renting of Immovable Property - as rent earned isbelow threshold limit mentioned in notification, no tax liability arises - impugned orderset aside and appeal allowed: CESTAT [para 4]



Plastichemix Industries Vs CCE & C (Dated: May 19, 2017)

ST - Assessee engaged in availing the services from foreign service provider -Revenue alleged that assessee had received services in the form of BusinessExhibition Service from the foreign service provider which was classifiable underSection 65 (105)(zzo) of the Finance Act, 1994 hence taxable - Duty demand withinterest & penalty imposed - Held - Following the precednt in Positive PackagingIndustries Ltd assessee was not liable to pay duty as the entire service had beenperformed outside India and assessee had not even availed any part of the service inIndia: CESTAT (2,4.3,5)


XL Health Corporation India Pvt Ltd Vs CST (Dated: March 23, 2017)

ST - Assessee engaged in providing Information Technology Software Services -Assessee sought refund of unutilized CENVAT credit of ST under the Notfn. No.5/2006-CE which was denied by revenue due to unjust enrichment -Held- Theprinciple of unjust enrichment was specifically excluded by the proviso of Section 11Bof the Central Excise Act, 1944 and was not applicable on the services provided forexport therefore by applying the ratio decided in the cases of Convergys IndiaServices Pvt. Ltd 2011-TIOL-1902-CESTAT-DEL , Vodafone (India) Pvt. Ltd 2014-TIOL-2479-CESTAT-MUM and various other cases matter remanded to theadjudicating authority to decide afresh by considering the submissions of assessee:CESTAT ( Para 2,3,6,)


Neovia Logistics Services India Pvt Ltd Vs CST (Dated: January 25, 2017)

ST - Assessee, a company registered as a Software Technology Park with SoftwareTechnology Park of India (STPI) and is engaged in providing inventory managementand record accuracy services and warehouse planning services to Caterpillar entities

which are located outside India - Refund claim of assessee was rejected on manpowerrecruitment and supply agency services and rent-a-cab scheme operator services -Various decisions of Tribunal and High Court has given a very wide interpretation ofdefinition of input service so as to include all the activities relating to business andassessee has been able to establish that these two services were very muchnecessary for smooth operation of organization and are related to business activities -Therefore, these two services fall in definition of input services and assessee areentitled to refund of the same: CESTAT


Nicholas Piramal India Ltd Vs CCE (Dated: May 31, 2017)

CX - Assessee engaged in manufacture of P&P medicaments - Goods initially weremeant for export under DEEC scheme - However, customers in Japan and Chinarejected those goods and goods were re-imported under Notfn 94/96-Cus - Aftermanufacture of goods and when their shelf life expired, assessee was not in a positionto clear / remove them even for home consumption, therefore, assessee chose todestroy subject goods - Revenue is demanding duty @ prevalent on day of re-importation of subject goods, whereas assessee submits that they paid duty at therate of day, when goods were destroyed as they could not use goods after expiry ofshelf life - Demand of duty would be at the rate as applicable on day of destruction -Once it is decided that assessee has rightly paid the duty on day of destruction ofgoods, there cannot be any liability of interest as well as liability of penalty againstassessee: CESTAT


CCE & ST Vs Ankur Construction Pvt Ltd (Dated: March 3, 2017)

Service Tax - mining service, industrial construction service & business auxiliaryservice - The Department has opined that the assessee-Respondents are liable to paythe Service Tax – Adjudicating authority confirmed the demand of service tax alongwith charged and recovery of interest, but dropped the penalty under Section 76 ofthe Finance Act, 1994 – Hence, the appeal by revenue.

Held: The penalties under Section 77 and 78 of the Finance Act, 1994 have also beenlevied - not fair on the part of the Department to file the Appeal for the reason thatthe penalty under Section 76 was not levied, especially when the penalties underSection 77 and 78 of the Finance Act, 1994 were also levied - Where conditionswarranting imposition of penalties under Section 78 exist, penalty under Section 76cannot be levied - no reason to interfere with the impugned order. Hence, the orderpassed by the Commissioner (Appeals) is sustained – Appeal dismissed – (Para 4).


CCE & ST Vs Vijay Tanks and Vessels Ltd (Dated: May 8, 2017)

ST - Assessee engaged in providing services to various clients including IOCL - SCNwas issued to assessee demanding ST on Consulting Engineering Service provided byassessee - Demand pertains to period prior to 2006 and assessee are a company -Assessee do not come under definition of " consulting engineer " in terms of Section65(31) of FA, 1994 - Thus demand under the head of 'Consulting Engineer' cannot besustained against a company - Proceeding cannot therefore be sustained againstassessee and demand of tax, interest and penalties has to be set aside - Review orderattempts to differentiate the decision in case M/s. Daelim Industries Company Ltdrelied in impugned order - It is seen that no grounds have been made out fordifferentiation - In absence of any such ground the decision in case of Daelim

Industries Company Ltd approved by Apex Court holds - Moreover in view of the factthat assessee is not covered by definition of 'Consulting Engineer' no tax can be leviedunder said service: CESTAT


Ruchi Strips And Alloys Ltd Vs CCE (Dated: May 19, 2017)

ST - Based on details collected from balance sheet of assessee, Revenue views that anamount shown as income, is attributable to taxable services under category of BAS,Manpower Supply Services and Cargo Handling Services - ST liability on these incomewas sought to be recovered from assessee - Regarding tax liability under BAS ,assessee were getting certain considerations from their sister concern towardscommon pool expenses, dividend and refund of bond money - Certain commonexpenditure towards various facilities like canteen and transportation were sharedamong group companies - Such arrangement cannot be considered as activitiestaxable under BAS.

Regarding Manpower Recruitment and Supply Agency Services , impugned order hadconfirmed ST liability only on the ground that certain considerations have beenreceived with reference to deputation of staff and hence, ST liability - Summaryfinding of impugned order is not sustainable.

Regarding Cargo Handling Services, it is seen that nowhere in proceedings beforelower authorities, the exact nature of work carried out by assessee has beenelaborated and applied to statutory definition - Service provider must incidentally beinvolved in loading or unloading or packing, unpacking of cargo - Said conditions arenot met - As such, impugned order confirming ST liability is without merit: CESTAT


Raj Retreading Company Vs CCE (Dated: December 20, 2016)

ST - Assessee engaged in retreading of tyres and were discharging ST only on labourcharges - They claimed exemption under notfn 12/03-ST for value of materialsconsumed during course of re-treading of tyres - Invoices indicate the value ofmaterials and service charges separately - Original Authority had examined thedocuments submitted by assessee and categorically recorded that the material costshown in invoice as verified by him is to be excluded from the taxable value in termsof said Notfn - Original Authority has correctly arrived at assessee's liability andpresent impugned order is not sustainable: CESTAT


Tata Motors Ltd Vs CST (Dated: July 7, 2017)

ST – Appellant is engaged in the business of financing for which windmill has no use -Repair and maintenance service of windmills installed outside the premises of theappellant is not an Input service - CA service relate to sale of equity stock and is notrelated to the output service of the appellant - as this service was availed against theinvestment made by the appellant out of the income generated from the overallbusiness, credit not admissible - rate of service tax that is applicable is as on date ofprovision of service and not as on date of receipt of the service charges – debit notesis a valid document for taking credit – non-mention of registration number on invoicesis no ground to deny credit – penalty commensurate to the demand confirmed -Appeal partly allowed: CESTAT [para 4]



Karta Ramesh Kumar Agarwal Vs CCE (Dated: June 2, 2017)

ST - Appellant is a contractor engaged by M/s.South Eastern Coalfields Limited [SECL]for the purpose of transportation of coal from colliery to railway sidings - SECL alsoengages the appellant for mechanical loading of coal into tipper by hiring of payloaders on as and when required basis - department of the view that the said servicesrendered by the appellant to SECL are conforming to the definition of mining serviceand not GTA service, since no consignment notes were issued for the purpose - SCNissued - demand confirmed - appeal to CESTAT.

HELD - The appellant is basically engaged by SECL for transportation of coal from thecolliery to the railway sidings and for providing the incidental and ancillary activitiesthereto - the issue involved in the case is no more res integra in view of the decisionscited by the appellant - the Tribunal in the said cases has held that mere handling ofcoal and movement of said goods from Railway Wagon through different modes oftransport would not constitute cargo handling service - thus, the services provided bythe appellant will not fall under Cargo Handling service - in view of the settled positionlaw, no merits found in the impugned order - accordingly, the same is set aside andappeal is allowed : CESTAT [para 5, 6]


CCE & ST Vs Saluja Radio Centre (Dated: June 14, 2017)

ST - Both the assessee as well as Revenue have preferred appeal againt impugnedorder dated 08.01.2017 - Tribunal allowed the appeal of assessee vide 2017-TIOL-1565-CESTAT-DEL holding that works contract services provided to Railways prior to01.06.2007 and thereafter will not be subjected to levy of ST - Since Tribunal hasallowed the appeal in favour of assessee, prayer of Revenue for imposition of penaltyunder Section 76 of FA, 1994 will not stand for judicial scrutiny: CESTAT

2017-TIOL-2569-CESTAT-KOL

Thakur Prasad Sao and Sons Pvt Ltd Vs CCE, C & ST (Dated: March 7, 2017)

ST - Assessee engaged in export of iron ore fines and they have received and usedGTA services in relation to export of iron ore fines - They are registered with STDepartment and have filed refund claims in terms of Notfn 41/2007-ST as amended -Lower authority disallowed the refund claim on GTA Services - As the benefit of C.B.E.& C. Circular No.120/01/2010-ST dated 19-10-2010 and relied upon case laws werenot available before adjudicating authority, matter is remanded back to Adjudicatingauthority to decide the matter on the basis of Chartered Accountant's certificate toestablish the co-relation required under Notf No.41/2007-ST : CESTAT


CCE & ST Vs Surya Hi-Tech Services Pvt Ltd (Dated: May 5, 2017)

ST - Revenue is in appeal against impugned order wherein Commissioner (A) hassanctioned refund claim of security services provided by assessee to M/s. MVNTutorial and MVN Education Societies, being educational institution - In show causenotice, there is no such allegation against assessee that they have not providedservice to an educational institution in terms of Notfn 25/2012-ST - Therefore, noinfirmity found in impugned order and grounds taken by Revenue in appeal arebeyond the scope of show cause notice - Aappeal filed by Revenue is notmaintainable: CESTAT


Speed Finance Services Vs CCE (Dated: March 28, 2017)

ST - Assessee had received full commission amount from bank for providing BAS andthat subvention charges were debited by bank from assessee's account in order to paythe same to its customers - Such subvention charges collected are part ofcommission, which falls under taxable category of BAS - With regard to submissionsof assessee that since no tax was deducted at source by bank from commissionamount for income tax purpose, same should not be considered for computation ofthe service tax liability, Tribunal views that Income Tax provisions are applicableentirely on different circumstances and statute deals with payment of tax on earningof income of assessee concerned; whereas, contrary is case under FA, where-underST is levied on provisions of taxable service by assessee - Hence, ST demandconfirmed by lower authorities will be sustainable on merits - SCN was issued on21.09.2010, seeking recovery of ST for same services for period April 2008 to March,2009 - Said SCN issued on 21.09.2010 is partly time barred having been issuedbeyond normal period prescribed under Section 73 of the Finance Act, 1994 -provisions of Section 78 cannot be invoked for imposition of penalty: CESTAT


Rama Vision Ltd Vs CCE (Dated: February 17, 2017)

ST - Assessee engaged in manufacture of B/W Picture Tube - In addition tomanufacturing activity, assessee is also providing technical consultancy to theircustomer and charging consultancy fee - Accordingly, from balance sheets ofassessee, Revenue found that they have received technical consultancy fee - SCN wasissued invoking extended period of limitation - Revenue had the knowledge of otherincome -" Technical Consultancy Fee " received by assessee since November, 2002and also the stand taken by assessee categorically that said amount is not taxableunder provisions of FA, 1994 - Finding of Commissioner (A) is erroneous on the pointof extended period of limitation - Thus, impugned order is set aside and appealallowed: CESTAT


KEI Industries Ltd Vs CST (Dated: March 28, 2017)

ST - Penalty - Assessee is a manufacturer of S.S. wire and plastic rubber cables andengaged Foreign Service provider for rendering different services - Assessee incapacity of recipient of service was liable for payment of ST w.e.f. 18.04.2006 -Payment of ST on reverse tax mechanism was highly debatable and issue was settledonly after the decision of Bombay High Court in Indian National ShipownersAssociation- 2008-TIOL-633-HC-MUM-ST - Since assessee had deposited ST alongwithinterest after investigation of matter and before issuance of SCN, malafides cannot beattributed to assessee for imposition of penalties - Accordingly, by invoking provisionsof Section 80 of FA, 1994, penalties set aside: CESTAT


Super Spinning Mills Ltd Vs CC, CE & ST (Dated: June 6, 2017)

ST - Refund claims of assessee were rejected on the ground that assessee failed toproduce agreement or contract or any other document in respect of services renderedby commission agent, documents evidencing actual payment of commission as also on

limitation - On appeal, First Appellate Authority observed that assessee has fulfilled allrequirements of furnishing documentary evidence which is a pre-requisite for sanctionof refund, however, he rejected the claim on the ground of limitation - As regards torefund claim for quarter ended June, 2008, refund claim was filed on 30.12.2008 thatit is 6 months from date of quarter ended and as per Notfn 32/2008-ST , time periodfor filing refund claims was extended from 60 days to 6 months in Notfn 41/2007-ST ,which would mean that this refund claim for the quarter ended June 2008 is filed intime: CESTAT


NS Construction Vs CCE & C (Dated: June 28, 2017)

ST - Service provided to CPWD etc. - Retrospective exemption granted by sections 97,98 of FA, 2012 - as this is a later development, much after passing the o-in-o, matterremanded to AA for considering eligibility: CESTAT [para 4]



Govind Ram Kumawat Vs CCE & ST (Dated: February 27, 2017)

Service Tax - Condonation of delay - Reason for delay explained in the CODapplication is reasonable; delay condoned and appeal to come up for hearing in duecourse.


Gali Sudarshan Reddy Vs CCE, C & ST (Dated: February 10, 2017)

Service Tax - Works Contract - the appellants provided various works like excavation,concreter in foundation and in basement, brick layer, etc., as per the work ordersissued by M/s JJC - investigation revealed that appellant has not discharged servicetax liability in respect of works provided Tax demand adjudicated along with interest;and penalty was imposed under Sections 76, 77 and 78 of the Finance Act, 1994 - theCommissioner (Appeals) upheld the demands, now agitated herein.

Held: The appellant has not discharged the service tax liability (including the smallportion collected from M/s JJC) before the issuance of Show Cause Notice - even afterthe conduct of investigation, the appellant has not discharged the service tax liabilityalong with interest, even though they were aware they are liable to pay the servicetax - When the appellant contends that they have to be given cum tax benefit, theycannot raise the contention that the service tax has not been received from theservice recipient; no ground to interfere with the penalties imposed - The matter isremanded to the adjudicating authority to consider the issue of cum duty benefit onlyand revise the demand accordingly if eligible for the benefit - the penalties will thenstand revised accordingly and the adjudicating authority shall also give the benefit ofreduced penalty of 25% as provided in Sub-section (1) of Section 78 [Para 6, 7, 8].


Contata Solutions Pvt Ltd Vs CC, CE & ST (Dated: April 28, 2017)

ST - Revenue filed an application to rectify the mistake in final order - Revenuealleged that date of realization of the amount had been wrongly submitted by counselof the assessee - There was difference in the facts stated in final order and the factsstated in the appeal memorandum by assessee - No apparent mistake of facts on theface of records had been seen - Also allegation made against the counsel turned outto be wrong - No ambiguity was found when the facts stated in the final order werecompared with facts stated in the appeal memorandum: CESTAT


Ram Gum And Chemicals Vs CCE (Dated: May 19, 2017)

Service Tax - Denial of refund claim filed under Notification No. 41/2007 –ST –Refund denied on the grounds of (i) THC Charges, Bill of lading charges, Originhaulage charges & repo charges are not covered under port service, as the serviceproviders are registered for providing different category of services, (ii) Proper invoicenot submitted, (iii) Cleaning activity is not prescribed as the service for claim ofrefund under Notification, (iv) Refund claim in relation to goods exported is barred bylimitation of time.

Held: Irrespective of the classification of service provided by the service providers, thesame should merit consideration as port service for the purpose of refund benefit,since such services were provided within the port of export - the issue is no moreresintegra and is settled in the decisions cited by the appellant - Rule 4A ibidmandates that taxable service has to be provided on invoice, bill or challan, containingcertain information - Since, the debit notes have to be verified by the originalauthority for ascertaining their contents, the matter should go back to the originalauthority for necessary verification – Regarding rejection of refund claimed,dismissing the appeal as the appellant is not pressing for the same – Appeal disposedof – (Para 5, & 6).


Vijay Brothers Vs CCE (Dated: June 7, 2017)

Service Tax - Cargo Handling service - appellants were engaged in providing manpower as per the requirements of their clients, for various operations inside theclient's factory - Revenue viewed that the appellants are providing cargo handlingservice inside the client's factory with reference to movement of raw materials,products, etc. and not MRA as contended, and adjudicated tax demand with interestand Penalties under Section 76, 77 and 78 of the Finance Act, 1994 - Commissioner(Appeals) dropped the demand on cleaning service, but upheld service tax liability andpenalties on the appellant for cargo handling services, culminating in the instantappeal.

Held: The job orders/service order of the clients are relating to shifting of PVCresin/raw materials /soda ash and other material within the plant premises of theclient - It is clear that none of the work orders talk about loading of cargo or handlingof cargo with reference to movement out of the factory by lorry or other means - InGaytri Construction Co., the Tribunal ruled that that shifting of goods within thefactory premises will not come within the scope of "Cargo Handling Services"; sameview taken in several subsequent rulings - impugned order legally unsustainable andset aside. [Para 5, 6]


Ranie Gums & Chemicals Pvt Ltd (Dated: May 26, 2017)

ST - These 11 appeals are on identical issue of ST liability of the appellants, onreverse charge basis, in respect of commission paid to the overseas agents as aconsideration for providing marketing services, covered under category of "BusinessAuxiliary Service" [BAS] -the period involved in these appeals are from 18.4.2006 to6.7.2009 - the Revenue initiated recovery proceedings by issue of SCNs to all theappellants - the Original Authority confirmed ST liability on the appellants for theperiod from 18.4.2006in terms of section 66A of Finance Act, 1994 -however, nopenalties were imposed except in two cases where penalty under section 76 alongwithsection 77 (one case) was also imposed

HELD -Appellants did avail services of foreign selling agents and such services areclearly covered by the tax entry BAS - even the appellants do not challenge the legalposition in this regard - however, the demands are contested on various othertechnical grounds - appellants contending that the demands are not sustainable asthere is a revenue neutral situation - Tribunal views that a purported neutral situationcannot, by any means, mitigate a tax liability of an assessee, which is otherwisepayable in view of clear legal position of charging section and the tax entry, foundcorrectly applicable to the assessee; thatthe whole scheme of cenvat credit asenvisaged by the Cenvat Credit Rules, 2004 will become redundant if the propositionof revenue neutrality is invoked for non-payment of service tax or duty oninputs/input services; that such interpretation of law will be against the very basis ofvalue added taxation and leaves the discharge of tax liability to the discretion of theassessee; that no legal sanction found for such interpretation - a perusal of theimpugned orders indicate that no sustainable reasons were recorded to support thedemand for extended period - the tax liability under reverse charge basis itself is anew concept and was subjected to various litigations and clarifications - in such asituation, no scope found for invoking extended period for demand of ST - there is nocase for fraud, collusion, willful mis-statement or suppression of facts with intent toevade ST in these cases - accordingly, ST liability should be restricted to the normalperiod available under section 73(1) of the Finance Act, 1994 [Act] -considering thefact that there cannot be two different SCNs against the same assesseesimultaneously, one under the main sub-section (1) of section 73 and another oneinvoking proviso to sub-section (1) of section 73 of the Act, it is apparent that ademand issued for longer period includes the demand of normal period, falling underthe very same main sub-section - there is no merit in the submission of the appellantthat when the demand for longer period was held to be not sustainable, then thewhole demand will fall - the right of the Revenue to recover ST not paid or short paidis a substantive right in terms of section 73(1) of the Act - the period of limitationbeing procedural has to be examined in this context - in the present cases, demandswere issued within the prescribed periods, by the competent officer - appellants areliable to ST on reverse charge basis in respect of commission paid to foreign agents -such liability will be only w.e.f. 18.4.2006 and restricted to the normal period ofdemand - there can be no justification for imposition of penalty on any of theappellants - accordingly, the penalty imposed in two cases is set aside - appealsdisposed of in the above terms : CESTAT [para 5, 6, 7, 8, 11, 12, 13, 14]


Lucid Colloids Ltd Vs CCE (Dated: June 6, 2017)

ST - Assesee is in appeal against impugned order whereunder refund claims ofassessee in respect of ST paid on various input services used in relation to export ofgoods filed under Notfn 17/2009 ST have been rejected - Assessee contends thatcomputer generated original invoices were submitted but same were not considered -Non-consideration of the same by Revenue is not correct - Assessee have provided E-invoices/computer generated invoices, which are actually downloaded from website ofservice providers - When it is a fact that no separate physical invoices are provided byservice provider, in era of paperless working and computerization, Revenue shouldaccept such invoices unless there is contrary evidence challenging the contents of

such invoices.

Assessee filed refund claim in respect of ST paid for various services like originaldocument, manual documentation, BAS, BSS, express release fees and B.L. chargeson the ground that these services are covered under 'port services' - Following theratio of decision of Tribunal in case of Pacific Exports 2011-TIOL-401-CESTAT-AHM ,claims in respect of services where assessee claimed refund under 'port services'needs fresh examination.

Refund claim of Rs. 5,839/- has been denied on ground that it was a claim for VATamount while assessee submits that it was a typographical error in invoice andactually it is ST amount - When it is so, this matter also needs fresh examination:CESTAT


Jainsons India Industries Vs CCE (Dated: May 5, 2017)

ST - Refund claim of assessee was rejected on various grounds - As regards to THCcharges, bills of lading charges, origin haulage charges, repo charges, same wereprovided by service provider within the port of export, facilitating exportation of goodsby assessee - Thus, irrespective of classification of service provided by serviceproviders, same should merit consideration as port service for purpose of refundbenefit - If the debit notes contain desired information as per Rule 4 A ibid, refund ofservice tax shall be extended to assessee - With regard to CHA service, since theassessee claims that invoice contained the reference of shipping bills and descriptionof goods, matter should be verified to original authority for verification of such aspect- Regarding rejection of refund claim on cleaning activity and technical inspection andcertification services, since the assessee is not contesting the same, no reason tointerfere with order of lower authority: CESTAT


Bharat Hotels Ltd Vs CCE (Dated: May 18, 2017)

Service Tax - hotel and real estate business – conducting of certain investigationsregarding non-payment of service tax, under various categories, by the appellant –SCN issued demanding service tax under five categories of service viz. (a) franchiseeservice (b) Mandap Keeper services, (c)Management, Repair and MaintenanceService, (d) Club or Association Service and (e) Exhibition Service - The case wasadjudicated, and confirmed the service tax demands as proposed in the show causenotice except in respect of franchise service where the demand was restricted for theperiod after 18.04.2006 – imposing of penalties under Section 77 and 78 of theFinance Act, 1994.

Held: appellants service tax liability in respect of management, maintenance andrepair services and mandap keeper services as confirmed in the impugned order isupheld along with penalties - the service tax liability in respect of Franchise servicesshall be from 18.04.2006 on reverse charge basis - However, demand shall berestricted to normal period only - No penalty is liable in respect of this demand ofservice tax - appellants are not liable to service tax under club or association serviceor business exhibition service. Demand as well as penalties on this account are setaside - excess payment of service tax, if any, under different tax entries shall be dealtwith in terms of provisions of Section 11 B of Central Excise Act, 1944 as madeapplicable to service tax – Appeal disposed – (Para 13).


Perfect Relations Ltd Vs CCE (Dated: November 21, 2016)

ST - Assessee is registered with ST Department under category of BAS - STdepartment while auditing the books of accounts, noticed that there was differencebetween income received and declared in ST-3 returns filed by assessee -Commissioner (A) has dismissed the appeal of assessee on the sole ground thatdocuments in support of claim of exemption were not produced either before AuditOfficer or Adjudicating authority - It is found from invoices available in case recordsthat services were provided to World Bank and UNICEF, which were exempted underNotfn dated 02.08.2002 - Further, value of taxable service alongwith ST not receivedfrom service receiver has been duly reflected in books of accounts under head " baddebt written off ": CESTAT


Central Power Research Institute Vs CCE (Dated: May 4, 2017)

Service Tax - appellant, an autonomous society under Ministry of Power, Governmentof India, are engaged in providing services falling under the category of Scientific andTechnical Consultancy Services – appellants received security deposit/advancepayment for taxable service in future and have not discharged service tax on thesame – SCN issued to demand and recover service tax not paid on the advancesreceived – original authority confirmed the liability and imposed penalties regardingfirst SCN.

Held: the appellant should have discharged service tax as and when suchconsiderations are received by them - also not convinced with the arguments of theappellant that since the amount received as deposit is ultimately adjusted against thetaxable receipts, the case can be considered as only delayed payment of tax - it is notin the choice of the appellant about timing of the payment of service tax - Apparently,when the service tax is paid on the advances received, the appellant need not to paytax again on the same consideration when the bill is issued after provision of service -Service tax, if any, shall be payable on such bill only if it exceeds the considerationalready received as advance - In the present appeal, we are only dealing with theliability of the appellant to pay service tax on advances received towards services, tobe provided to various clients - Such advances are liable to tax in terms of Section67(3) of the Finance Act, 1994 - the present demands made by the Revenueregarding non-payment of service tax on the advances is sustainable - Regardingdemand for extended period also, receipt of amount has not been reflected fully in thestatutory returns as is evident from the narration recorded in the show cause notice -no reason to interfere with the findings of the lower authorities - for the period10.05.2008 to 31.03.2010, penalty under Section 76 is not tenable and the same isset aside – Appeals dismissed – (Para 6, 7, & 8).


Dream Loanz Vs CCE (Dated: May 23, 2017)

ST - Inclusion of reimbursable out-of-pocket expenses in the gross value of taxableservices - apex Court has not stayed the order of the Delhi High Court inIntercontinental Consultants & Technocrats Pvt. Ltd. - following judicial discipline,impugned order set aside and appeal of assessee allowed - Revenue appealdismissed: CESTAT [para 7, 8]



IAL India Ltd Vs CST (Dated: June 12, 2017)

ST - There were three proposals in SCN to raise demand in question i.e. that certainamounts is received such as delivery order fee, bill of lading fee, direct line incomehave been sought to be taxed by authority to raise a demand - Neither SCN expressesexamination of any contract between parties nor the adjudicating authority made anyeffort to call for respective document and examine the character of receipt and todetermine the taxability of services covered therein under appropriate taxing entry -As regards to error in taxing in respect of space booking, said allegation is also notsupported by any material on record and also suffers from similar infirmities - Matterremanded for re-adjudication with time frame following the guidelines affordingreasonable opportunity of hearing to assessee: CESTAT


Akamai Technologies India Pvt Ltd Vs CST (Dated: December 29, 2016)

Service tax – Refund of accumulated CENVAT credit in respect of certain inputservices and rejection of refund regarding certain other services – Appeals by bothRevenue and the assessee – Assessee is a 100% Export Oriented Unit engaged in thebusiness of rendering Business Auxiliary Services and Information TechnologySoftware Services to Akamai Technology International, USA – Utilization of variousinput services while rendering taxable output services – Claim rejected on variousallegation including the nexus between input and output services.

Held: The impugned order is not sustainable in law in view of the fact that all theservices for which CENVAT credit of service tax has been denied are in fact inputservices and the assessee is entitled to get refund of CENVAT credit lying unutilized inthe CENVAT credit account – assessee's appeals allowed – Revenues appeals aredismissed – (Para 7).


Vacmet India Ltd Vs CCE & ST (Dated: May 12, 2017)

ST - Assessee filed refund claim of ST paid on services received for use in export ofgoods for their unit-II for the period July, 2008 to September, 2008 - Another refundclaim of ST was filed for their other unit -III - One of which was rejected observingthat refund claim have been filed in wrong jurisdiction - So far refund of port servicesare concerned, all services provided entirely within the port/airport premises would fallunder port services - Specific direction from the port or airport authority is not aprecondition for levy - Board, in its Circular dated 12/03/2009, has clarified thatgranting refund does not require verification of registration of service provider andrefund can be granted if otherwise in order - Reasons for refusing refund are nottenable in view of the law, as it is described and/or clarified by Board's Circular incourse of time, as discussed and or placed by assessee - Adjudicating authority isdirected to disburse the refund with interest as per rules, within a period of 60 days:CESTAT


Amarnath Associates Vs CCE (Dated: June 06, 2017)

Service Tax - Facilitation of the arrangement of loan between money lender andborrower - Appellants get consideration as brokerage from the borrowers of the loanamount - Revenue claims that such consideration is liable to be taxed under the taxentry " Business Auxiliary service " - The original authority confirmed the demand also

denied cenvat credit - On appeal, the same was upheld.

Held: No allegation to the effect that the appellants promoted the product or servicesof borrowers of loan amount, which can be brought under the scope of businessauxiliary service in terms of Section 65 (19) of the Finance Act, 1994 - In FulchandTikamchand vs. CCE & C, Nagpur - 2016 TIOL-502-CESTAT-MUM it was held that “theappellant does not enter into any contract, written or implied, with either the financieror the borrower; nor is there any responsibility cast upon the appellant in the event ofdefault on the part of financier or the borrower - the appellant fails the test ofdescription as agency or agent for classification as commission agent under section65(19) of Finance Act, 1994 - To be a 'commission agent' the definition requiresentities to 'act on behalf of another person and causes sale or purchase of goods, orprovision or receipt of services, for a consideration' - In view of an equation that isdevoid of an agency relationship with the financier and rules out the provision of aservice on behalf of the borrower from whom the appellant receives consideration, theactivities of the appellant are outside the ambit of business auxiliary service” - Hence,the impugned order is not sustainable and the appellants are not liable to service tax -Appeal disposed - (Para 4, & 5).


Chaturvedi Travels and Tours Vs CCE & ST (Dated: June 15, 2017)

Service Tax – Provision of vehicles on hire basis - dispute in the present case relates totheir service tax liability under the category of rent a cab service - Revenue proceededagainst the appellant for non-payment of service tax – The demand was confirmed andalso imposed penalty of equivalent amount under Section 78 and further penalty underSection 77 of the Finance Act, 1994 and on appeal, Commissioner (A) upheld thesame.

Held: No written agreement available to examine the scope of transaction carried outby the appellant with the clients - liable to service tax in terms of Section 65 (105)(o)of the Finance Act, 1994 read with Section 65 (91) of the Act - It is provided that anyperson engaged in the course of rent a cab is liable to service tax on the considerationreceived - considered the submission regarding the distinction between 'hiring' and'renting' a vehicle as held by the Hon'ble Uttarakhand High Court in Sachin Malhotra -the appellants liability for service tax under rent a cab service cannot be contested -the claim of the appellant for abatement available as per Notification 1 of 2006 dated01.03.2006 as well as the exemption for threshold turnover limit applicable for smallscale service provider during the relevant financial years have not been considered fora decision by the lower authorities - the matter is remanded to the original authorityfor reconsideration the quantification of service tax, if any, payable by the appellantafter due consideration of available abatement and SSI exemption based on the detailssubmitted by the appellant – (Para 7, & 8).


Freewill Infrastructure Pvt Ltd Vs CCE (Dated: June 19, 2017)

ST - In the event that benefit of notification No. 1/2006-ST is denied, the appellantswould be clearly entitled to the CENVAT credit irrespective of the fact that they havenot claimed it earlier – fact that the appellants are trading should not be held againstthe appellant as that cannot be the reason for denying cenvat credit otherwise due -Matter remanded to AA – Insofar as demand of service tax in respect of servicesprovided to Government of Maharashtra, Delhi Development Authority and Shri SathyaSai Health & Education Trust, the same cannot be sustained in view of Circular No.80/10/2004-ST dt. 17.9.2004 & decisions in Shirke Construction Technology Pvt. Ltd. -2013-TIOL-1424-CESTAT-MUM , Anand Construction Co. - 2013-TIOL-238-CESTAT-MUM and S M Sai Construction - 2016-TIOL-416-CESTAT-MUM – Appeal partly allowedand partly remanded: CESTAT [para 4.1 to 4.3]



Indian Hotel Company Ltd Vs CCE (Dated: January 27, 2017)

Service Tax - CENVAT Credit availed by the appellant denied on the ground that theservices were provided in the guest rooms, bar, residential flats, restaurants, officeshop, public area etc., which are not taxable services - the contention of theDepartment is that as the service provided by the appellant are not taxable service, nocenvat benefit is admissible in terms of sub-rule (1) of Rule 6 of the Cenvat CreditRules, 2004.

Held: The Commissioner (Appeals) in the impugned order has observed that thedisputed services were utilized by the appellant for providing both taxable, as well as,exempted services. Since the disputed services are confirming to the taxable servicesspecified in sub-Rule (5) of Rule 6, the service tax paid on the said services shouldqualify for availment of cenvat credit. In this case, the disputed services were notexclusively used for providing exempted services, the fact of which has been admittedin the impugned order. Therefore, the cenvat benefit should be extended to theappellant in terms of sub-rule (5) of Rule (6) ibid. However, as no documents weresubmitted by the appellant in support of its availing of cenvat credit correctly, thematter should go back to the Original Authority for verification of the invoices andother relevant documents, to ascertain whether the cenvat credit was correctly availedby the appellant. ( para 6)


Chetak Travelling Agency Vs CCE (Dated: June 14, 2017)

ST - Assessee rented its vehicle to users for transportation of their employees fromone place to another - There is no doubt that assessee has realized certain amount oftaxes and not paid that into treasury - Vehicle having more than 12 passengerscapacity were hired in specific terms with control and possession of vehicle remainingwith the user of vehicle to transport their employees, that established the case ofrenting of motor vehicle for a consideration - In relation to renting of motor vehicleservices provided by assessee, levy of ST is confirmed - However, quantum of levymay undergo amendment subject to consideration of abetment if permissible which isleft to Adjudicating authority for examination in light of law, considering the argumentof assessee and also subject to production of evidence if any - So far as applicability oftime bar is concerned, assessee has collected taxes but not having paid the same totreasury, it loses all its right to further argue when its conduct of evasion was patent -However, considering that there was a confusion between assessee and Revenue dueto varied judgment of different High Courts, levy of penalty is considerable undersection 80 of FA, 1944: CESTAT


MCB Exports Vs CCE (Dated: June 16, 2017)

Service Tax – Refund of Service Tax in terms of notification no.41/2007-ST dated6.10.2007, in respect of service tax paid on specified services availed for the export ofgoods – Refund denied on various grounds challenged in appeals.

Held: In many cases, the lower authorities denied the claim for refund on the groundthat the appellants did not submit proof of payment of service tax to the Government -when the appellant availed services provided by others, in the port or other specifiedservices and produced the evidence of payment of service tax to such provider, theclaim cannot be rejected on the ground of non-submission of proof of payment ofservice tax by the service provider to the Government. ( para 7)

In many cases the claim was denied on the general ground that the documents are notproper or conditions of notification were not fulfilled. On perusal of the detailedsubmissions made by the appellant, it is clear that all the supporting evidences and theclarifications submitted by the appellant have not been duly taken into consideration

before rejecting their claims. ( para 11)

The claim was denied on the general ground that the documents are not proper orconditions of notification were not fulfilled. On perusal of the detailed submissionsmade by the appellant, it is clear that all the supporting evidences and theclarifications submitted by the appellant have not been duly taken into considerationbefore rejecting their claims – Impugned orders set aside and matter remanded. ( para11 & 12)


CCE Vs Sarda Energy and Mineral Ltd (Dated: May 8, 2017)

Service Tax - liability of respondent for payment of the service tax on reverse chargebasis - Respondents engaged in the manufacture of Ferro Alloys liable to Central Exciseduty and facility for generation of electricity - availed cenvat credit of duty paid oninputs, capital goods and tax paid on input service in terms of Cenvat Credit Rules,2004 - revenue alleged that respondents have not discharged the service tax inrespect of import of service under the category of "Scientific Technical Consultancy"service - original authority confirmed the liability and imposed equal amount ofpenalty - On appeal, the same was set aside - Hence, the present appeal by revenue.

Held: Revenue contends that the respondent received taxable service in terms of theagreement, from China which was refuted stating that they have only importedequipments and paid money towards that import - the Commissioner (Appeals)advised the Revenue to verify any payments towards the disputed proforma invoice, toconfirm the tax liability of the respondents and no such verification was done - order ischallenged only on the ground that the agreement talks about design and engineeringand there was a performa invoice - this assertion alone is not sufficient to confirm thetax liability on reverse charge basis - In the absence of evidence of actual paymenttowards taxable service, there can be no confirmation of tax liability against therespondent - No merit in the appeal filed by Revenue - Appeal dismissed - (Para 6).


RKE Technologies Vs CCE & ST (Dated: May 31, 2017)

Service Tax - Penalty - appellant is engaged in the supply of electronic equipments andare also engaged in repair of equipments which would fall under business auxiliaryservice and also under Management, Maintenance or repair service - Tax demand withinterest and penalties under sections 77 & 78 of Finance Act, 1994 adjudicated; andupheld by Commissioner (Appeals) on the ground that appellant have not paid theentire amount of service tax liability before issuing of show cause notice and thereforeprovision of Section 73(3) cannot be applied, culminating in the instant appeal.

Held: It is claimed ab initio that appellant had discharged entire service tax liability forthe material period through various challans in March 2011 and show cause notice wasissued on 18.07.2011 for demand of service tax of an amount less than the amountpaid - Section 73(3) of Finance Act, 1994 very clearly mandates for discharge ofservice tax liability on his own ascertain or on the basis of tax ascertainment byCentral Excise Officers before issuance of show cause notice, under sub section 1 ofSection 73 of Finance Act 1994, no show cause notice be issued - it only talks aboutdischarge of service tax liability by assessee before issuance of show cause notice;while Explanation 1 thereunder requires that interest liability should also be dischargedby the assessee, it does not say it should be before issuance of show cause notice -Karnataka High Court ruling in the case of CCE & ST Bangalore Vs. Adecco FlexioneWorkforce Solutions is applicable; penalties set aside. [Para 6]


DHL Express India Pvt Ltd Vs CST (Dated: February 1, 2017)

ST - Consideration received from a recipient of service for the services rendered by the

provider alone is taxable - a demand for alleged short-paid tax must be based on afinding that a specific taxable service has been provided, or agreed to be provided andon the consideration that was paid or payable by the recipient of that service to theprovider of the service - since the impugned order fails to do so and confirms demandmerely because it has been accounted as a receipt in books of the appellant, demandset aside and appeals allowed: CESTAT [para 4, 5]



Videocon Telecommunications Ltd Vs CST (Dated: May 12, 2017)

ST - Sponsorship of Mumbai Indian IPL team and M/s.Otago Cricket Association -Services received by assessee are covered in exclusion clause in definition of taxablesponsorship services under section 65 (105) (zzzn) of FA, 1994 - Said issue wasconsidered by Tribunal in case of Hero Honda Motors Ltd and it is held that assessee isnot liable to ST for sponsorship service - Therefore, prima facie assessee has made acase for complete waiver of pre-deposit on that count.

Sponsorship of IIFA awards - The event of IIFA awards is organized outside India andtherefore, when the services itself have been rendered outside India, there is noquestion of levy of service tax liability thereon and have made out a case of completewaiver of pre-deposit on this account.

Service Tax on membership fee paid to GSM Association - ST has been confirmed onassessee on the ground that they received club or association services from GSMAssociation - Said services under club or association service have been held ultra-viresby Gujarat High Court in case of Sports Club of Gujarat Ltd - 2013-TIOL-528-HC-AHM-ST - Therefore, assessee is not liable to pay ST under club or association service.

Assessee is directed to make pre-deposit of Rs.65,632/- and on such compliance,balance amount of ST demand, interest and penalty are stayed during the pendency ofappeal: CESTAT


Petronet Lng Ltd Vs CCE (Dated: June 7, 2017)

Service Tax - Importation and distribution of Liquefied Natural Gas and appellant alsoengaged in setting up of re-gasification facility (L& G Terminal) as a co-developer atthe port based SEZ at Puthuvypeen , Cochin – availed certain services in connectionwith setting up of the said project at Cochin – dispute is with reference to claims forrefund made by the appellants in terms of notification no.9/2009-ST as amended,by notification no.15/2009-ST – Entitled to exemption of service tax payable ontaxable services received by them subject to various conditions mentioned in thenotification itself - exemption is to be claimed by the developers of SEZ by way ofrefund – Claims were filed and were examined and were rejected – On appeal, thesame was upheld – Hence the present appeal.

Held: The appellants were found to be not falling under the category of either as adeveloper or as a unit under SEZ, hence not covered by the said exemption -admittedly the appellants have been approved as a co-developers by the competentauthority - The SEZ Act itself recognizes, developer includes co-developer – No meritin the findings recorded by the lower authorities - The exact classification of theactivities subjected to service tax can be arrived at by perusal of the agreements andthe nature of documents including invoices, which were used for claiming theconsideration - as long as it is satisfied that the appellant have discharged service taxand the services received by them are falling under overall categories of approvedservices, the refund claim should be considered for sanction - Adequate documentarysupport has been placed to support the claim of the appellant that they did dischargethe service tax on the services received - On the question of limitation, the observationof the Original Authority that the amount paid after 6.1.2010 cannot be added to the

original claim is factually incorrect - when the original claim was filed in time, asrecorded by the Original Authority, the same should be considered for verification andsanction - the impugned orders as they stand, cannot be sustained - matter isremanded back to the Original Authority for examining the refund claims for sanction -appeals are allowed by way of remand – (para 5, 6, 7, & 8).


Vodafone Essar Mobile Services Ltd Vs CST (Dated: June 28, 2017)

ST - Appeal filed against against impugned order wherein Cenvat credit demand wasconfirmed along with interest and equal amount of penalty was imposed under Rule 15(4)/15 (2) of CCR, 2004, r/w Section 78 of FA, 1994 on the ground that credit takenon various inputs, input services and capital goods are not confirming to definitionscontained in CCR - So far as availment of cenvat credit on disputed goods/ services areconcerned, issue is squarely covered by decision of Larger Bench of Tribunal in TowerVision India Pvt. Ltd. 2016-TIOL-539-CESTAT-DEL-LB , wherein it has been held thatgoods/services in question shall not be considered as input, capital goods or inputservices for purpose of availment of cenvat credit - Thus no infirmity found inimpugned order with regard to confirmation of cenvat credit demand - With regard toimposition of penalty under Rule 15 r/w Section 78 of FA, 1994, said provisions ofstatute cannot be invoked as there is no element of suppression, misstatement of factsand fraud on the part of assessee to defraud the Government revenue - Admissibilityof cenvat credit was contentious one, which was finally resolved in case of TowerVision India Pvt. Ltd - Therefore, suppression of fact cannot be invoked, justifyingimposition of penalty under Section 78 of the Act - In view of contrary decision ofvarious judicial forums, Section 80 of the Act can be invoked for waiver of penaltiesimposed under Section 77 and 78 of Act ibid - Impugned order is confirmed to extentof disallowance of cenvat credit - Imposition of penalty under Section 77 and 78 of theAct are set aside: CESTAT


Bharat Sanchar Nigam Ltd Vs CCE & ST (Dated: April 26, 2017)

Service Tax - Telecommunication Services – Claimed refund of excess deposit ofservice tax – application was rejected on the ground of limitation, which was upheld byCommissioner (A).

Held: The refund application was filed beyond the period of limitation prescribed underSection 11B - In absence of any specific power conferred under the statue empoweringthe authorities to condone the delay in late submission of refund application, therefund claim filed beyond the period of one year from the date of payment of servicetax will be clearly barred by limitation of time – (Para 6).


Woolmark Service India Pvt Ltd Vs CST (Dated: Jauary 6, 2017)

Service Tax - Penalty - Tax demand with interest and penalties under Sec 76 and 78 ofthe Finance Act 1994 imposed in adjudication; and contested herein on the aspect ofsimultaneous impositions under the cited Sections 76 and 78.

Held: The period involved in this case is from 01.07.2003 to 31.03.2009 - Section 78ibid was amended w.e.f. 10.05.2008 wherein the 5th proviso was appended theretoproviding that if the penalty is payable under Section 78, provisions of Section 76 shallnot apply - The effect of such amendment is that simultaneous penalty under bothsection 76 and 78 ibid cannot be imposed - With regard to applicability of the saidamendment prospectively the Delhi High Court in the case of Bajaj Travels Ltd. heldthat such amendment cannot have the retrospective application in absence of anyspecific stipulation of that effect - Further by relying on the Bajaj Travels ruling, thisTribunal in the case of Board of Control for Cricket in India has also held thatsimultaneous penalties under Section 76 & 78 ibid are imposable for the period prior to10.05.2008 - Since the jurisdictional Delhi High Court in the case of Bajaj Travelsspecifically held that the amendment in Section 78 will not have any retrospective

application, same applicable to the instant case - penalty levied under both Section 76& 78 upto 10.05.2008 is sustainable - penalty under Sec 76 not sustainable from10.05.2008 to 31.03.2009 - The appellant has already deposited 25% of the penaltyunder Section 78, and the remaining 75% of penalty shall stand waived [Para 5-8]


Inox Leisure Ltd Vs CCE & C (Dated: June 7, 2017)

ST - Assessee had availed Cenvat Credit on Advertising Charges, Common AreaMaintenance Charges (CMC), House keeping Charges, Outsource Labour Charges,Lease Rental Charges, Events and Promotion Expenses Charges, Courier Charges,Credit Card Charges, Repair and Maintenance Charges, Cash Pickup charges,Processing charges, Internet Excess charges, Prepaid Expenses Charges, AuditCharges, Security Agency Charges, Telephone Charges and Vehicle Charges - It isalleged that said services do not satisfy definition of Input Services as per Rule 2(l) ofCCR, 2004 and a SCN was issued for recovery of Cenvat Credit with interest andpenalty - ST paid on various services are eligible to credit being Input Services as heldunder various judgments of Tribunal - However, for verification of eligibility of creditavailed on basis of invoices/documents, which the Revenue disputes, matter remandedto Adjudicating Authority for deciding said issue afresh that is only to the extent ofscrutiny of documents: CESTAT


Rajdhani Security Services Vs CST (Dated: June 5, 2017)

ST - Assessee engaged in providing security services and since they did not pay STcollected from customer, a SCN was issued to them for recovery of ST along withinterest and penalty - Commissioner (A) after analyzing the details of payments madeby assessee during period in question observed that from total amount of ST liability ofRs.24,47,147/- for period April 2001 to March 2006, it was reduced by an amount ofRs.12,30,553/-, considering the amount paid by them earlier - Therefore, their liabilityof Rs.12,16,594/- is correctly arrived at by adjudicating authority on computation ofliability - No error found in order of Commissioner (A) - However, in view of judgmentof Gujarat High Court in case of Raval Trading Company 2016-TIOL-112-HC-AHM-ST,penalty under Section 76 and also under Section 78 of FA, 1994 cannot be imposedsimultaneously - Accordingly, confirmation of penalty under Section 76 is bad in lawand accordingly set aside: CESTAT


Sonia Travels Vs CCE & ST (Dated: April 25, 2017)

ST - Assessee engaged in providing motor vehicles on hire basis to their customers -Dispute relates to their tax liability under category of "rent-a-cab operator service" -Original Authority held that decision of Tribunal in R.S. Travels - 2008-TIOL-1311-CESTAT-DEL is squarely applicable and also relied on Board's Circular dated15.08.2006 - Appeal by Revenue against said de novo order is mainly on the groundthat Tribunal's order is not acceptable to Revenue and an appeal has been filed inUttrakhand High Court - Further, appeal also mentions the CESTAT's order being notcorrect - Based on such grounds of appeal, Commissioner (A) reversed the findings oforiginal authority - It is found that distinction made by Commissioner (A) is withoutmerit - In any case, decision of Tribunal in R.S. Travels has been affirmed byUttrakhand High Court - Having gone through the appeal records, Tribunal agrees withthe reasonings recorded by Original Authority and accordingly, set aside the impugnedorder: CESTAT


Tata International Ltd Vs CCE (Dated: May 29, 2017)

ST–Appellant's refund claim was denied on the ground that the same was filed beyond

period of six months as notification no.17/09-ST was not applicable during the periodof exports made by the appellant : HELD – Circular F.No.354/256/2009-TR dated1.1.2010 issued by Revenue is very clear that notification no.17/2009-ST does not barits applicability to past exports - in other words, the time limit of one year (instead of 6months) would be applicable even for the exports made prior to issuance of notificationno.17/2009-ST – However, as the revenue contests the facts of filing the refund claimwithin one year time limit by the appellant for certain exports, the matter needs freshexamination and decision by the original adjudicating authority – impugned order setaside and matter remanded to the original adjudicating authority for fresh decision :CESTAT [para 4, 4.1, 4.2, 5]


Air Liquide North India Pvt Ltd Vs CCE (Dated: June 8, 2017)

ST - Assessee engaged in manufacture of oxygen, nitrogen, carbon dioxide and othergases - They received consideration from clients for putting up machinery/ storagefacilities for gas and connected accessory in their premises - Consideration received interms of agreements are variously termed as 'facility service charges'/ 'rental charges'/'facility fees' - Revenue views that assessee are providing infrastructural support totheir clients - Assessee stated that they have supplied tangible goods and weredischarging VAT considering the transaction as sale - Further, they have also contestedapplicability of tax entry under Section 65(105zzzq) of FA, 1994 - Creation andmaintenance of such facility in client's premises is in furtherance of facilitating suchsale of gas, by assessee and purchase of same for industrial use by client - It is abeneficial arrangement for both - In such situation it will not be correct to consider theamount received towards lease rent/ facility fee as consideration for providing businesssupport to the client - Present transactions which are sought to be taxed by Revenuecannot be considered as covered by scope of business support service during materialtime - Accordingly, impugned orders are not legally sustainable: CESTAT


Soumya Mining Ltd Vs CCE (Dated: May 12, 2017)

ST – CENVAT – Rule 2(k) of CCR, 2004 - Dumpers/Tippers are specially designed forearth moving in mining area; are not motor vehicles in view of apex court decision inBelani Ores Ltd. Etc. vs. State of Orissa Etc. [1975 AIR 17] - appellant would beeligible for cenvat credit on dumpers / tippers as inputs which are used for providingthe output service - controversy stands resolved with effect from 22.6.2010 with issueof notification No. 25/2010-CE(NT) which has amended the Cenvat Credit Rules, 2004to allow cenvat credit on dumpers / tippers registered in the name of service providerfor providing taxable service of providing site formation etc. – as department alsoalleges that credit had been availed on deficient/unavailable invoices, matterremanded to original adjudicating authority for verification – Matter remanded :CESTAT [para 7, 8]



Taisei Corporation Vs CCE (Dated: June 6, 2017)

ST - Appellants are an Indian project office of a Japanese Company - For execution ofcertain projects in India, Japanese Head Office of appellant deputed certain employeesto their project office - Whether appellants are liable to pay ST as a recipient of taxableservice in terms of Section 66A of FA, 1994 - As regards to applicability of saidprovision to appellant, it is found that appellants are an establishment in India andprovisions of Section 66A is made applicable to any permanent establishment in India -Admittedly, appellants are a branch of Japanese company, undertaking the projectwork in India - As such, appellants are covered by provisions of Section 66A for anytax liability, on reverse charge basis, when such taxable services were received fromoutside India - Arrangement of deputing employees from parent/head office abroad toan Indian branch office will not be covered for tax liability under supply of manpower -Further, the Japanese company is not shown to have been engaged in activity of

manpower recruitment or supply services - There is nothing on record to indicate thatbranch project office in India can be considered as an associated enterprise ofJapanese company - Impugned orders are not legally sustainable: CESTAT


Shree Rajasthan Syntex Ltd Vs CCE (Dated: May 5, 2017)

ST - Assesese had filed refund claim of ST paid on various input services used forexport of goods under Notfn 41/2007-ST - Same was denied on the services namelyport service, CHA service, bank charges and foreign based commission agent service -Since the services were availed and utilized within port for export of goods,irrespective of classification of services done by service provider, same should meritconsideration as "Port Service" - Assessee is eligible for refund of ST paid on TerminalHandling Charges and CHA Services - Since assessee submits that it has adequatedocuments to demonstrate payment of ST on bank charges, matter should be verifiedby original authority - With regard to payment of ST by utilizing cenvat credit underreverse charge mechanism, Tribunal in case of Kansara Modler Ltd. had held that as arecipient of service, ST payment can be made under reverse charge mechanism byutilizing cenvat credit: CESTAT


PA Consulting Services India Pvt Ltd Vs CCE & ST (Dated: March 23, 2017)

ST - Assessee engaged in providing software development services pursuant tocontract with PA Consulting affiliate entities based outside India - For providing outputservice, assessee availed input services and they are unable to utilize cenvat credit andtherefore they filed a refund application under Rule 5 of CCR, 2004 - Same wasrejected on the ground that in invoices, other costs including expenses associated withtravel and accommodation are in relation to out of pocket expenses billed by assesseetowards providing ITS service itself - - Services rendered by assessee are exportservices as is clearly brought out in softech form, APR, financial - CA certificatesubmitted by assessee also certified that they have rendered export services andconsideration received by assessee is only for export of services and furtherdeclaration from service recipient that services have been received from PA Consultingduring disputed period - It is proved that assessee is entitled for refund as claimed bythem and impugned order denying refund is not sustainable in law: CESTAT


Pratibha Constructions, Engineers and Contractors India Pvt Ltd Vs CCE(Dated: June 19, 2017)

ST - COD - After passing the order, there is no purpose going to be served if thematter is again pursued with the Commissioner on quantification aspect - only remedyavailable is to file appeal before the Tribunal - In the interest of justice, delay of 622days is condoned - appellant directed to pay cost of Rs.10,000/- and report compliance- Application allowed: CESTAT [para2]



Times Internet Ltd Vs CCE (Dated: December 15, 2016)

ST - Assessee engaged in providing various taxable services - Revenue alleged dutyevasion on two taxable services provided by assessee - In the first service, theassessee developed regular and premium SMS for various telecom companies, and theassessee received a share of the subscription charges for such SMS - Revenueconsidered them to be taxable under the category "Business Auxiliary Services" (BAS)- In the other service in issue, the assessee developed, operated & maintained thewebsite of a leading newspaper brand - Revenue categorised this service under "Management, Maintenance or Repair Services " (MMR) - Duty demand with penalty u/s

77 & 78 of the Finance Act was imposed - Held - w.r.t. the first service, the thearrangement with the telecos was on principal to principal basis, wherein the assesseedeveloped and provided certain content for transmission by the mobile telecomoperators to their various subscribers, as a value added service - Assessee'sconsideration here, was a fixed percentage of the income generated from selling suchcontent - Revenue considered this to be " any customer care service provided onbehalf of the client and " procurement of goods or services, which are inputs for theclients "., under the BAS - Aforementioned service fell under neither description and soduty demand under BAS is unsustainable - w.r.t. the other service, which revenueclassified under MMR services, the activities of the assessee indicate that no software,repair or maintenance was involved - Assessee were involved in designing andmanaging the online publication for the newspaper - Moreover, the assessees were asit is, engaged in designing and maintaining websites - A website per se is not acomputer software - Revenue failed to distinguish between a computer software andinformation technology software - The SCN itself acknowledges that website was aInformation Technology Software & satisfied the statutory definition - Hence dutydemand under MMR service is unsustainable as well - Hence, duty demands withpenalties set aside: CESTAT (Para 1-4,9,11,14,16)


BSNL Vs CCE (Dated: May 23, 2017)

ST - Assessee was providing interconnection link facility to various basic telephoneservice providers, infrastructure and space and was charging infrastructure charges,port charges and rent for space - Revenue views that assessee was liable to pay ST onthese charges w.e.f. 1.5.06 under category of a new service "Business Support Serviceunder section 65(104c) - Matter stand finally clarified by CBEC vide their Circular dated12.3.2007 to the effect that IUC will not be liable to pay ST under category oftelephone services since it is not a charge recovered by telegraph authorities forproviding of telecommunication services to subscriber - From the nature of IUCrecovered by assessee, it is clear that assessee has not provided any such servicesfalling within category of Business Support Services - The IUC stand recovered fromother basic telephone service providers only for providing interconnection link andinfrastructural support, and space for keeping equipments belonging to other serviceproviders - Consequently, no reason found to sustain the demand: CESTAT


Innodata India Pvt Ltd Vs CC, CE & ST (Dated: April 6, 2017)

ST - Issue is regarding disallowance in part of claim under Notfn 12/2005-ST beingrebate claimed for ST paid on input services utilized in activity of export of services -Assessee, a STPI unit engaged in rendering services under category of 'OnlineInformation and Database Access or Retrieval services' - They exports 100% of theirservices and also receives several input services on which they pay ST and/or utilizedin course of their activity of providing export of service - Commissioner (A) rejectedthe refund facility on ground of time-bar - Two conditions have been prescribed forsatisfaction of Export of Service, first, being remittance for service of India and itsreceipts by receiver of services abroad and secondly, remittance must have beenreceived in convertible foreign exchange in India - Accordingly, Commissioner erred incomputing period of limitation from date of payment of input tax - Second ground ofdisallowance is that during period when services were received some of the premisesof assessee's company were not registered with ST Department - All such unlistedpremises had subsequently been registered and recognized for assessee, and alsorelying on ruling of Karnataka High Court in case of mPortal India Wireless SolutionsPrivate Ltd 2011-TIOL-928-HC-KAR-ST , this ground also decided in favour of assessee- Transport expenses for holding a conference or training session at any place outsidethe office premises is allowable - Accordingly, assessee is entitled to refund: CESTAT


Hindustan Zinc Ltd Vs CCE (Dated: May 24, 2017)

ST - Department initiated show cause proceeding against assessee, alleging that it hadlet out housing quarters and other premises on rent to its contractors and otherpersons, but did not pay ST under taxable category of Renting of Immovable propertyservice - Submission of assessee that housing quarters are located at a different place,than other premises was not considered by authorities below - Rather, ST demand wasconfirmed in terms of explanation-2 contained in Section 65(105)(zzzz) ibid, holdingthat assessee did not produce any evidence to show that residential premises arelocated at a place, away from commercial premises - Also the submission of assesseethat for purpose of computation of threshold exemption limit, ST paid on GTA Servicesin capacity of recipient of service should not be considered, has not been taken intoconsideration by authorities below - Matter remanded: CESTAT


Chhattisgarh State Power Distribution Company Ltd Vs CCE & ST (Dated: April24, 2017)

Service Tax - appellant is engaged in the distribution of electricity generated byChhattisgarh State Electricity Generation Company, to various consumers - Oncompletion of the enquiry, proceedings were initiated against the appellant by SCN todemand and recover and amount towards their service tax liability for the period 2006-2007 to July, 2012 under the category of consulting engineering service - the demandwas made under Section 73A (3) readwith Section 73 (2) of Finance Act, 1994 – acertain amount was sought to be appropriated as it was already paid - The OriginalAuthority adjudicated the case and confirmed service tax liability representing theservice tax collected by the appellant from their customers and appropriated anamount already paid by the appellant towards the said demand and imposed a penaltyunder Section 77 (2) of the Finance Act, 1994.

Held: The Original Authority should have examined the claim of the appellant regardingfull discharge of service tax liability, comprehensively with reference to the appellantstotal tax liability, during the material period - The appellants on the other hand claimedthat they have discharged their full service tax liability during the material time -However, there was payment under wrong category of head of account - the claim ofthe appellant requires detailed examination - it is clear that if the full tax liability hasbeen discharged, payment under a wrong account head will not make the appellantliable to pay the service tax again – Setting aside the impugned order and remand thematter back to the Original Authority – Appeal allowed by way of remand – (Para 4).


Adbur Pvt Ltd CST (Dated: April 26, 2017)

Service Tax - The dispute in the present appeal relates to the service tax liability ofreimbursed amount received by the appellant from their clients towards media cost.

Held: The dispute in the present case mainly relates to the valuation of taxable serviceunder the category of advertising agency service and also an issue of denial of Cenvatcredit due to improper documentation – “the role of the appellant as a "pure agent" interms of Rule 5 (2) of the Service Tax (Determination of Valuation) Rules, 2006 hasbeen examined in full detail - the Original Authority, held that the appellants havefulfilled all the conditions of a pure agent acting on behalf of M/s Dabur - OriginalAuthorities held that the appellants being an advertising agency and a pure agent isnot liable to pay service tax on amount payable to media companies on behalf of theirclients – only the commission received would be chargeable to service tax” – Hence,based on the finding of original authority, there is no merit in the impugned order inconfirming service tax liability against the appellant - Regarding denial of Cenvatcredit, there is no dispute regarding eligibility of input service for availability of creditto the appellant – Appeals allowed – (Para 8, & 9).


K Line Ship Management (India) Pvt Ltd Vs CST (Dated: June 1, 2017)

ST - CENVAT - Refund - It is not open to Revenue to examine the admissibility ofCENVAT Credit while adjudicating the admissibility of refund under Rule 5 read withNotification 5/2006-CE(NT) - For the purpose of recovery of Cenvat Credit wronglytaken or erroneously refunded, Rule 14 has been provided in CCR - Matter remanded:CESTAT [para 4, 5]



Banna Ram Choudhary Vs CCE (Dated: May 1, 2017)

ST -Appellants engaged in construction activities - ST liability of Rs.15.55 lakhs under"construction of commercial or industrial complex" confirmed against the appellant,penalties imposed under sections 76 and 77 of the Finance Act, 1994 - appeal toCESTAT.

HELD - Appellants claiming that substantial part of the demand relates to constructionof building for colleges - buildings used for educational purpose by recognisededucational institutions cannot be categorised as "commercial buildings" - the lowerauthorities gave emphasis to purported commercial nature of the owner of the building- the use of the building will decide the tax liability - regarding individual residenceclaimed to have been used for occupation by the persons, no categorical supportingevidences have been submitted by the appellant - no detailed examination has beenmade by the lower authorities -appellants submitting that they can furnish supportingevidence - impugned order set aside and matter remanded for fresh decision byoriginal authority : CESTAT [para 5, 6, 7]


Zones Corporate Solutions Pvt Ltd Vs CST (Dated: February 6, 2017)

Service Tax – Refund – Appellant, registered under BAS & ITSS categories, filedquarterly claim for refund of unutilized CENVAT credit under Rule 5 of CCR 2004 readwith notification No. 27/2012-CE-NT dated 18.6.2012, which was rejected on theground that claims were required to be filed within one year from the date of issue ofinvoices and were hence hit by limitation.

Held: In the case of Commissioner of Central Excise, Pune vs. M/s. Computer Land UKLtd., the Tribunal has considered the same issue and has observed that unless theentire quarter is completed, the exporter cannot file his refund claim and as such, therefund claims filed within one year from the end of relevant quarter are required to beconsidered as having been filed well within time - Revenue is not disputing the factthat the issue stand covered by the said decision of the Tribunal - It is not theRevenue's case that the said decision has been appealed against by the Revenue andstand reversed; in the absence of any such fact on record, the law declared by theTribunal was binding on the lower authorities and the Appellate Commissioner wasunder a legal obligation to follow the same - the impugned order is set aside withconsequential relief. [Para 2, 3]


Bhola Singh Jai Prakash Construction Ltd Vs CCE & ST (Dated: February 28,2017)

Service Tax - Demand of Service Tax along with interest and equivalent penalty underthe category of ‘Commercial or Industrial Construction Service'.

Held: Appellant assessee is entitled to the abetment of 67% under Notification no.1/2006-ST as per the CESTAT decision in the case of M/s Bhayana Builders Pvt LtdVSC CCE = 2013-TIOL-1331-CESTAT-DEL-LB and the quantum is to be computed -Appeal allowed by way of remand - (Para 5).


Ramawat Construction Company Vs CCE (Dated: May 12, 2017)

ST - Assessee engaged in providing construction related services - Upon verification ofrecords revenue alleged that assessee non-payment of service tax for two differentperiods - Two separate SCNs imposing duty demand with penalty - While duty demndwas paid by assessee, penalty imposed was challenged on grounds that penalty u/s 76& 78 of Finance Act could not be levied together - Further contention was that SCNswere issued after the amendment of Section 78 wherein provisions existing prior to theamendment could not be invoked as the amendment of Section 78 had noretrospective effect - Assessee further challenged the denial of Cenvat credit on theinputs - Held - Imposition of penalty u/s 76 & 78 of the Finance Act were distinct innature and could be levied together, as held in the case of Krishna Poduval & BCCI -Besides the SCNs were issued after the amendment of Section 78 it was held thatliability for any violation of law always governed by the law applicable at the time ofsuch violation - Amendment in the Section 78 was prospective in nature unlessexpressly stated that it was retrospectively effective - Denial of Cenvat credit by therevenue was also justified as assessee had not submitted any supporting documentsfor the receipt of the duty paid inputs: CESTAT (Para 3,7,8,11)


Godawari Power And Ispat Ltd Vs CCE (Dated: May 12, 2017)

Service Tax - Valuation - The appellants are engaged in crushing of iron ore lumpssupplied by various customers, on job charges basis, registered under "BusinessAuxiliary Service" - Process loss of 3 to 4% of iron ore lumps were agreed uponbetween the customer and the appellant, attributed to ground loss, crushing loss,moisture loss etc. - The Revenue, upon examining the annual reports of the appellantfor the material period, viewed that the appellants have recovered huge quantities ofiron ore fines and shown it as 'self-generated'; that these iron ore fines arising out ofcrushing operations are having market value and such value should be added in theconsideration for tax purposes - Differential tax demand on the value of iron ore finesarising out of crushing operations and retained by the appellant; along with interestand penalties under Section 76, 77 and 78 of Finance Act, 1994 were adjudicated, andis agitated herein.

Held: Admittedly, the appellants are discharging service tax on the crushing chargesreceived; and the dispute is relating to additional consideration in the form of iron orefines emerging during the course of such crushing - The crushing charges are fixed andthe percentage of ground loss is also mentioned in the work order along with therequired fineness of the crushed product - during the course of crushing some iron oreis lost due to various reasons, but the loss is not always to the maximum as stipulatedin the work order inasmuch as some iron ore fines which are towards loss withinagreed limits, are available with the appellant for their disposal - at the time of issue ofwork order neither party is aware of the exact quantum of loss or possible accrual ofiron ore fines for the appellant, and the contingency of emergence of iron ore fineshaving some value, is not determinable at the time of fixing of crushing charges -Hence, it is not tenable to hold that the crushing charges are influenced by the possibleemergence of iron ore fines and its additional value to the appellant - the crushingcharges are identical in respect of work orders, where no losses agreed upon and thefines are to be returned to the supplier, indicating emergence of iron ore fines withinthe permissible percentage of loss not directly influencing the crushing charges -Revenue has no evidence to support the allegation that the value of iron ore fineslikely to emerge during the crushing operation have impacted the crushing charges

arising as additional consideration - In the absence of any indication to that effect, theproposal that there is a non-monetary consideration in the form of iron ore fineinfluencing the crushing charges is untenable - the impugned order is not sustainableand is set aside. [Para 5, 6]


EXL Service Com India Pvt Ltd Vs CCE & ST (Dated: May 12, 2017)

Service Tax – Refund under Rule 5 of CCR 2004 - appellants are registered under thecategory of "Business Auxiliary Service" and were providing the said services throughvarious centres located in different places on behalf of foreign clients - They filedrefund claim of unutilized cenvat credit in terms of Rule 5 of Cenvat Credit Rules readwith Notification No.5/2006-CE (NT) dated 14.03.2006, which was examined andpartially allowed by the Original and Appellate authorities below, culminating in theinstant appeal on the portion rejected.

Held: Tax credit availed by the appellant on input services relating to payment ofinsurance of Directors, employees and their dependents admissible in terms of theruling pronounced in the case of Faurecia Interior Systems - credit and refund wasrejected, in respect of payments made for advertising service, used in connection withadvertising service provided at the family day function of the employees; designingservice for events organized by the appellants in connection with anniversary, festivalsand on various special occasions like appreciation programme for the employees,design of banners, logos etc., and event management services for participation incorporate football tournament, function for awarding the employees of the companiesand team building activities of the employees including training - Karnataka High Courtin the case of Toyota Kirloskar Motor held that these type of activities do fall within theactivities relating to business, consequently credit on such input services are availableto the assessee - the appellants have arranged and availed these various services inconnection with their business activities and considering the nature of their businessand output service, the credits are available on such services as they are connected totheir business of rendering taxable output service - security services were availed forthe employees, key officials at different places in connection with conducting interview,security in parking area, which is part of the office premises of the appellant and thecatering service availed is in connection with annual day function at the appellant'spremises - these services have direct connection with the business activities of theappellant and the denial of credit is not justified – The rent-a-cab service is used fortravel of the employees and officials in connection with official work; such services areeligible for input credit - hospital services availed by the appellant for their employeesare an integral part of their business expanses and cannot be denied - the appellant'sclaim for service tax paid on air travel agent service and air ticket expanses are to beallowed as these are with reference to air travel undertaken by the employees as wellas expenses relating to visa processing, work permit documentation etc., which hasgot direct nexus with the business of output service - tax paid on maintenance andrepair of business premises and the official guest house maintained by the appellant aspart of their business requirement and have nexus to the output services; theexpanses are borne by the appellant and the service tax has been duly discharged onthe same; hence admissible - Since the credit on various input services availed areheld to be eligible, the original authority has to examine that claim for due sanctionand any discrepancy claimed by the appellant in calculation, can also be verified beforesanction of the claim. [Para 5-8]


Kpit Technologies Ltd Vs CCE (Dated: June 12, 2017)

ST – In the absence of an activity between the branch and the headquarters for anidentified consideration, the remittance received from overseas customers through thebranch to the appellant would not be liable to tax - demutualization that has beenlegislated in Section 66A would not be applicable after 1 st July 2012 andconsequently, there is no distinction between the overseas establishment and thecontrolling establishment in India - for the period after 1 st July 2012, the services that

have been availed and which fall within the scope of rule 4 of Place of Provision ofServices Rules, 2012 are liable to taxfor quantification, matter remanded – appealsdisposed of: CESTAT [para 13, 15]



Indian Oil Corporation Ltd Vs CCE (Dated: April 13, 2017)

Service Tax - Demand - Appellant is engaged in refining the petroleum products andare also acting as canalizing agents for certain companies for purchase/import of crudeoil - They supplied crude to M/s Chennai Petroleum Corporation Ltd., and receivedcertain consideration as commission for their activity; taxable under the category of"business auxiliary service" in terms of Section 65 (19) of Finance Act, 1994 - Uponverification of records of M/s Chennai Petroleum Corporation Ltd., Manali theappellants were informed by the Department about the tax liability and calling forparticulars, the appellants informed details of their payment of service tax withinterest; as also details of payment of service tax in respect of supplies made toanother unit during the material period - subsequently a show cause notice was issuedproposing the service tax demand with interest; appropriation of amounts alreadypaid; and imposition of penalties under Section 76 and 78 of the Finance Act, 1994 -The notice was adjudicated in the impugned order, culminating in the instant appeal.

Held: The impugned order recorded that when the show cause notice was issued, theappellant did not respond and even the written submissions was filed after three yearswhich shows the casual approach of the appellant - Other than that the OriginalAuthority has only quoted the legal provision of payment of service tax in time andheld that delay in payment is sufficient to invoke deliberate intention, suppression,fraud etc. - Admittedly, the appellant did not discharge service tax in time, but whenpointed out they have paid the service tax with interest and intimated the department- though the bar of Section 73 (4) was not discussed in the impugned order, it wouldappear that the tax liability being spread over extended period has prompted theproceedings to be initiated against the appellant - the longer duration of tax liability byitself will not bar closure of case under Section 73 (3), which will arise only in casewhere the ingredients like mis-statement, suppression of act, intention to evade tax orevidence are present - Such ingredients have not been categorically established in theimpugned order; particularly when the appellant being a public sector undertaking,there is a rebuttable presumption of their bonafide act, unless contrary is established -the service recipient being their own subsidiary, apparently entitled for Cenvat credit ofthe full amount, the intentional evasion of tax could not be substantiated - the groundfor initiating proceedings after a long gap of payment of tax with interest by theappellant, has not been justified in the impugned order; and the case was fit forclosure under the provisions of Section 73 (3) - Accordingly, the penalties imposed onthe appellants were not justified and the same are set aside, while the tax liability withinterest is not contested and the same is upheld. [Para 4, 5]


CCE Vs Max New York Life Insurance Company Ltd (Dated: April 21, 2017)

ST - Assessee engaged in business of life insurance and annuity products - Issuerelates to assessee's liability in terms of Rule 6(3) of CCR, 2004, as assessee haveprovided taxable as well as exempted/non-taxable output services - Proceedingsagainst assessee is to recover an amount equivalent to 6% of value of exemptedservice - Original Authority held that assessee is liable to follow one of two options interms of Rule 6(3) of CCR, 2004 - Assessee followed second option and reversedproportionate credit attributable to exempted service, along with interest for delayedreversal of such credit - It is also held that assessee has to follow consequences ofsuch finding - There is no reason to insist that assessee should necessarily follow firstoption of paying 6% of value of exempted service: CESTAT


Qualcomm India Pvt Ltd Vs CC, CE & ST (Dated: June 7, 2017)

Service Tax - Appellant registered under Information Technology Software Services(ITSS) and Business Auxiliary Services (BAS) - Services provided are exported outsideIndia - Availed CENVAT credit of various input services which were used for provisionof output services and the CENVAT credit was accumulated - filed various refund claims- the claims were rejected during adjudication and on appeal, the same was remandedback to original authority - in the de-novo adjudication, the adjudicating authoritypartially allowed the refund claims and rejected the remaining amounts and alsodenied the interest to the appellant on the rejected refund claims in the first round - onappeal to the first appellate authority, it did not agree with the contentions raised andrejected the appeals as also the demand for interest - several miscellaneousapplications filed.

Held: Upon perusal of the services referred to, all these services have always beenheld by the lower authorities as not used in or in relation to providing of outputservices and do not fall under the definition of input services as per Rule 2(l) of theCENVAT Credit Rules 2004 which have been negated in several tribunal judgements -It is undisputed that the appellant had received the services on which service tax wasdischarged by the service provider and appellant has rendered output services in formof ITSS and BAS which are exported - Hence, the impugned orders which reject therefund claim filed by the appellant of the service tax paid on the above input services,as unsustainable - the appellant is eligible for the interest in accordance with law inrespect of the delayed refunds sanctioned to them - Appeals allowed - (Para 7 , & 8).


Acme Telepower Ltd Vs CCE (Dated: April 20, 2017)

Service Tax - management consultancy services – Discharged ST on services receivedfrom an LLP in Boston – appellants were of the view that the services received fromabroad was rightly to be classified under the category of "legal consultancy services"which was brought to tax net only w.e.f . 01/09/2009 - filed a refund claim for theservice tax paid earlier, under the category of "management consultancy services" –Upon adjudication, the refund claim was rejected and on appeal, the rejection ofrefund claim was upheld – Hence, the present appeal.

Held: There is no discussion about the claim of the appellants and it would appear thatthe rejection is made, rather by summary findings - many factual errors haveapparently crept in - the impugned order did not examine the vital issues beforeupholding the original order which itself was very brief and did not examine the factualor legal issues, as required before deciding on the refund - The matter has to go backto the Original Authority for a fresh consideration of the documents submitted by theappellant – Appeal allowed by way of remand – (Para 4, & 5)


CST Vs International Sos Services (Dated: March 3, 2017)

ST - Assessee engaged in providing services namely, 'Online information and DataBase access or retrieval service, management consultant service' to foreign party infield of health care management - Department views that same is subject to ST -Identical issue has come up before this Tribunal in case of Paul Merchants Ltd. whereinappeal allowed in favour of assessee - Similar views were expressed in case ofMicrosoft Corporation (I) (P) Ltd. 2014-TIOL-1964-CESTAT-DEL - Following the ratiolaid down by Tribunal, no reason found to interfere in impugned order, same is upheld:CESTAT


Brindavan Phosphates Pvt Ltd Vs CST (Dated: May 25, 2017)

ST - Assessee have filed a claim for refund of excess ST paid to department on theground that they have paid ST on goods transport inadvertently on 100% of freightcharges without availing benefit of abatement of 75% of freight under Notfn 32/2004ST - Declaration contained in rubber stamp affixed on bills and consignment notesissued by GTA are valid declaration by GTA and it satisfies requirement of notificationbecause in notification no specific format has been prescribed for declaration and it isonly CBEC Circular which prescribed such kind of endorsement - Instruction issued byCBEC is not part of notfn and said rubber stamp affixed with notfn - Bar of unjustenrichment is not applicable because assessee has paid ST under reverse charge andtherefore impugned order is not sustainable: CESTAT


Mahindra And Mahindra Ltd Vs CST (Dated: May 29, 2017)

ST – Rule 7 of CCR, 2004 - ISD has only distributed the input service credit - Rule 14of CCR can be made applicable only on the person who avails the CENVAT creditwrongly or utilises the same – SCN cannot be issued to the appellant Input ServiceDistributor for recovery of CENVAT credit – Impugned order set aside and appealsallowed: CESTAT [para 5 to 8]



City Financial Consumer Finance India Ltd Vs CST (Dated: December 23,2016)

Service Tax – Demand - appellant is a Non-Banking Finance Company and is engaged,inter alia, in the business of providing various types of loans to its customers;registered under the category of Banking and Other Financial Services – During anaudit intervention, it was observed that the appellant in lieu of financing of homeappliances, received remittances as commission from the manufacturers and dealers,in the nature of interest under the nomenclature of 'subvention income', but failed todischarge tax in respect of income from M/s.L.G. Electronics Ltd - it was also observedby the Audit, that the appellant did not maintain separate records of inputs / inputservices used for providing both taxable as well as exempted services – Tax demandwith interest and penalty adjudicated; certain cenvat credit was also denied anddemand for its recovery adjudicated with interest and penalty, culminating in theinstant appeal, primarily contesting limitation.

Held: The receipt of subvention amount was duly reflected by the appellant in the ST-3Returns filed during the disputed period - In the notes appended to the said Returns,the appellant had explained the facts regarding payment of service tax on subvention/manufacturer discount and also non-payment of service tax on such amount in some ofthe cases - the charges of fraud, collusion, wilful mis-statement, suppression of factsetc. cannot be levelled against the appellant, and the demand should be confined tothe normal period of one year. [Para 6, 7]

On similar set of facts, the Department had issued two Show cause notices, withoverlapping material period - While issuing the first show cause notice, the materialfacts were known to the Department - Issuance of second show cause notice is clearlybarred by limitation of time, having been issued beyond the period of one year fromthe relevant date - the Supreme Court in the case of Nizam Sugar Factory held thatwhile issuing 2nd and 3rd show cause notices based on same / similar facts, theallegation of suppression of fact on the part of the assessee cannot be invoked as thematerial facts are already in the knowledge of the authorities; accordingly, demand inthe instant case cannot be sustained on the ground of limitation. [Para 8]


Japan Airlines International Company Ltd Vs CST (Dated: May 19, 2017)

ST - Assessee engaged in the business of operating airlines and were providingservices of transport of passengers by air - Revenue alleged that assessee failed to paythe service tax on the correct value of taxable services rendered by the assessee - SCNwas issued demanding duty with interest however separate penalty was imposed u/s77 & 78 - Tribunal also upheld the order - Assessee then filed miscellaneousapplication seeking rectification of certain errors which were apparent on record in finalorder of Tribunal - Held - On the basis of Tribunal's final order and by considering therectification application, some points require re-adjudication - Firstly, for calculatingST, certain charges not required to be included to calculate the duty payable -Secondly, non-consideration of correct amount of deduction due to cancellation oftickets during the material time - Thirdly, extended period of limitation was invoked byOriginal Authority, however various submissions were made by assessee which werenot considered by OA - Certain other issues such as assessee was liable to pay tax u/s66a wherein clearly mentioned company carrying on a business through a branch oragency in India shall be liable to tax even though the company had been registered inJapan - Further Board Circular dated 17/10/2006 clarified if ticket issued by thecompany to some passenger for a round trip/return journey shall be taxable as per theterms of Section 65 (105) (zzzo) of FA, 1994 - In para 7 of order it was written'Custom Department' however it should be written as only 'Department' - Therefore,matter however remanded back to OA to adjudicate it afresh by giving fair opportunityto assessee: CESTAT (Para 1,3,7,8,9,10,11,12,13)


Meera Bux Neelgar Vs CCE (Dated: May 25, 2017)

ST - It was noticed by Department that assessee had provided various taxable servicesnamely, cargo handling service, manpower recruitment service, cleaning service andcommercial & Industrial construction service to M/s. HZL, but did not pay ST on suchservices - Assigned work was executed by assessee without use of any freighttransport/carrier at any point of time and that transportation activities undertaken bythem is limited to within mine area - Thus, undertaking of activity of loading andunloading of goods within mines area will not be subjected to levy of ST under cargohandling service - Since assessee is a labour contractor, supply of labour by them forundertaking assigned task of cleaning will not fall within ambit of taxable service ofman power recruitment or supply agency service - If work executed by assesseeinvolved both supply of material and deployment of labour for executing assigned job,same should not be liable to ST, since provided prior to effective date i.e. 01.06.2007 -Thus, with regard to commercial or industrial construction service, matter is remandedto original authority for verification of documentary evidence of supply of material andlabour: CESTAT


Commandant QA and Proof Vs CCE

ST - Quality check of defence stores - appellants are not liable to pay service tax onthe testing fee paid to them by ordnance factories - no question of payment of interest- impugned order set aside and appeal allowed: CESTAT [para 4, 5] - Appeal allowed :DELHI CESTAT



Arunesh Saw Mills Vs CC

Cus - In-bond Bill of Entry was filed on behalf of M/s. Golden Timbers for warehousingimported "Papua New Guinea Origin Kwila Regular and Small round logs" supplied byone M/s. Adonis Limited, Hongkong - On execution of warehousing bond, in-bond Billof Entry was assessed for warehousing - Bill of lading and other invoices and other

related documents submitted along with Bill of Entry were also in name of M/s. GoldenTimbers - Assessee through their customs broker requested for amendment in Bill ofEntry in their favour as goods have been sold to them - Matter was taken forinvestigation by officers of SUB, Customs House, Tuticorin and it appeared todepartment that letter conveying cancellation of sale was not issued by M/s. GoldenTimbers and that imported goods warehoused did not belong to them - Some of vitaldocuments relied upon by department have not been provided to assessee - Inresponse to earlier directions of this Bench, vide letter dated 24.03.2017 submitted byrevenue it is sought to justify that letter dated 30.12.2013 of M/s. Golden Timbers wasaddressed to Import section and in that letter nothing was mentioned regarding SUBand hence said letter was not reflected in SCN - It is difficult to accept this assertionwhen it is obvious that SIIB had commenced investigation much earlier as evidencedby statements recorded by officers on 12.12.2013 - There is definitely merit inassessee's contentions that they have not been given copies of important documentsrelied upon and that retraction letters have not been taken into cognizance and inprocess, principles of natural justice have been violated - This being the case, appealsare remitted back to original authority for denovo consideration - In such denovoproceedings documents relied upon in SCN shall be provided to them: CESTAT


Jubilant Oil And Gas Pvt Ltd Vs CCE

ST - Assessee engaged in providing services such as advising and assisting variousforeign-based entities in carrying out their business operations in India - Whether theamount payable to assessee by service receiver situated outside India, but paid byONGC amounts to receipt of consideration in convertible foreign exchange, so as toqualify as export of service - Other issue is regarding classification of service which asper assessee is "BAS" and not "Management Consultancy Service" as determined bycourts below - Privity of contract is between assessee and service receiver, namely;M/s Transocean INC, located in USA - Under the arrangement instead of ONGC givingpayments of full amount to M/s Transocean INC, under "Management ConsultancyAgreement" , ONGC have paid the bills of assessee on behalf of M/s Transocean INCand debited their account in its books, so as to reduce transaction in foreign currencyand remittance of foreign currency abroad - In terms of J. B. Boda - 2002-TIOL-2578-SC-IT , even if less remittances is sent outside amounts to receiving of remittance inconvertible foreign exchange - Accordingly, both the conditions of Export of serviceunder export of service rules are satisfied that is rendering of service from India andreceived by receiver abroad and further receipt of consideration in convertible foreignexchange: CESTAT


CCE, CC & ST Vs Rajesh Tours And Travels

ST - Both the parties has filed this miscellaneous application to recall Final Order dated08.11.2013 - Applicant stated that CESTAT vide Final Order dated 08.11.2013 haddismissed the Revenue's appeal as amount involved was less than Rs. 5,00,000/- inlight of decision of High Court of Karnataka in case of Ranka & Ranka 2012-TIOL-178-HC-KAR-IT - Respondent had also filed cross objection, since they were also aggrievedby portion of Commissioner (A) order to the extent of confirming demand of ST alongwith interest and penalties - While dismissing the Revenue's appeal CESTAT hasmistakenly disposed of cross objection filed by respondent without considering theprayer and grounds contained therein - On the day, when order dated 08.11.2013 waspassed respondent was not present and has also made a request in writing foradjournment - As far as delay in filing the application is concerned, Tribunal is satisfiedwith the reasons given in affidavit - When order dated 08.11.2013 was passed,Tribunal held that issue could be decided in favour of respondent on going through therecords without presence of respondent but in fact by disposal of cross objection, apart of the impugned order which was against applicant has been upheld - Therefore,application allowed to the extent of restoring cross objection of applicant to be decidedof merit subject to the cost of Rs. 10,000/-: CESTAT


Pk Ghosh And Sons Vs CST (Dated: March 22, 2017)

ST - Assessee engaged as a CHA - Duty demand with interest & penalty was imposedfor alleged short payment of service tax on value of service provided - Held - Assesseeexcluded reimbursement & commission received from the taxable amount - Lawrequires taking into account gross value of service, which includes considerationreceived before, during or after provision of a service - Moreover, assessee was not aPure Agent, to be able to exclude reimbursement - Thereby non-inclusion of a part oftaxable value was tantamount to suppression & misdeclaration - Hence the penaltywas correctly imposed: CESTAT (Para 1,2,5,6,7)


Sk Education Pvt Ltd Vs CST (Dated: February 23, 2017)

Service Tax – Assessee has two units and are undertaking activities of impartingvocational training in the field of fashion designing, interior designing, painting, Englishspeaking courses, accountancy learning courses and various computer software &hardware courses etc. This unit had also entered into agreement with various entitiesto provide business know-how to these entities and authorized them to use brandname "Heights" - "Bachpan" units are merely providing their brand name "Bachpan"and business know-how to its customer for running play schools - The Businesspatterns of "Bachpan" is different from "Heights" unit as it does not run any school orimpart any education/training to children – amounts received towards franchise fee,royalty, cost of manual supplied, certificate charges and advertisement reimbursementcharges – Service tax demanded under the category of "franchise services" .

Issue: Whether amounts recovered by the assessee's towards royalty, advertisingplan, cost of manual supplied and certificates issued under the franchise agreementsboth on account of "Bachpan" and "Heights" were part of the gross value under Section67 for the purpose of payment of Service Tax.

Held: Issues for consideration is whether

(i) The advertisement reimbursement charges should be included in the gross amountfor charging service tax - It is settled provision of law that any expenditure incurred bythe service provider in the course of providing taxable services and reimbursed cannotbe considered as consideration for taxable services - no justification for includingreimbursable expenditure in the taxable service tax.

(ii) The amounts received by the assessee towards cost of manuals and certificatessupplied - the invoices raised for supply of manual and certificates indicate that theassessee has paid VAT for such sales covering the value of manual and certificatessupplied - It is settled law that no service tax is leviable in cases where goods havebeen sold on payment of VAT/ Sales tax

There is no justification for levy of service tax on the amounts received by theassessee towards royalty, cost of manuals and certificates as well as advertisementreimbursement charges – Appeal by assessee is allowed and appeal revenue isdismissed – (Para 14, 15, & 16).


Supreme Tyres Pvt Ltd Vs CCE & ST (Dated: November 18, 2017)

ST - Assessee engaged in business of tyre retreading and is a franchisee of MRFPretreads and their services became taxable under category of "repairing andmaintenance service" w.e.f. 16.06.2005 - Mere delay in payment of service tax cannotbe construed as suppression or mis-declaration of facts with intent to evade paymentof tax - Further, bonafideness of assessee is evident from fact of their gettingregistered with ST Department soon after change in scope of definition on repairing

and maintenance service and also from the fact that entire receipt relating to repairand retreading of tyres during relevant period, had duly been reflected in their auditedbalance sheet - Penalty imposed on assessee under Section 78 of the Act, is notmaintainable and consequently, same is set aside - Penalty under Section 77 is upheld:CESTAT


CCE Vs Trimurti Build Tech Pvt Ltd (Dated: February 28, 2017)

ST - Assessee engaged in business of renting of immovable property service - Revenuealleged that upon auditing of profit & loss account, ledgers of ST returns it was foundthat assessee paid less ST than its actually payable and suppressed it from revenue -No case of contumacious conduct and suppression on the part of assessee was madeout as assessee paid accurate amount of ST on receipt basis : CESTAT (Para 2,5)


CCE Vs Indian Oil Tanking Pvt Ltd (Dated: June 12, 2017)

ST - Notfn. 1/2006-ST - Scheme of abatement is a valuation problem that has hitcheda ride on a vehicle which was intended to provide for a reduction in the rate of tax -Erasure of credit is substantial compliance and hence denial of abatement is nottenable: CESTAT [para 16, 17, 20]



Shell India Markets Pvt Ltd Vs CCE,ST & CC (Dated: May 25, 2017)

ST - Assessee is primarily engaged in the business of exporting services - They weredenied to avail Cenvat credit on Event Management Service, Real Estate Agent Service,Tour Operators Service and Travel Agent Service reason being these services were notessential inputs for rendering the output services - By considering the various caselaws wherein the definition of input service had been rightly interpreted to include anyservice which is essential for providing the output service - Therefore, assessee waseligible for Cenvat credit: CESTAT (Para 2, 7)


Rajasthan Syntex Ltd Vs CCE (Dated: May 15, 2017)

ST - Assessee filed the claim for refund of ST in respect of services availed duringcourse of export of goods, in terms of Notfn 41/2007-ST and 17/2009-ST - They areineligible for refund under Notfn 41/2007-ST for period prior to 7.12.2008 in view ofbar that no refund in case they have claimed drawback on export items - For theperiod post 7.12.2008, claim was rejected on various grounds - Activities within theport area with reference to export of goods are called in various names as terminalhandling charges - It is well settled that services, received by exporter on which SThas been paid, are relatable to activities within the port, are to be considered forsanction of refund - In assessee's own case, the Tribunal held that they are eligible forrefund of ST in respect of terminal handling charges, CHA services, banking chargesand also for tax paid using cenvat credit - In respect of rejection of claim due to lack ofsupporting evidences with reference to GTA services, sales or purchase of foreignexchange, banking charges, assessee are pleading that they have complete supportingevidences, which can categorically link-up with availment of service, payment of STwith shipment of cargo by them - This requires verification by sanctioning authority:CESTAT


Birla Institute Of Scientific Research Vs CCE (Dated: June 20, 2017)

ST-' Commercial training or coaching service ' - It is immaterial whether the service isrendered with profit motive or otherwise for levy of Service Tax - demand confirmedand appeal dismissed: CESTAT [para 5]



Ruchi Soya Industries Ltd Vs CCE (Dated: May 30, 2017)

ST - Assessee is in appeal against impugned order whereunder refund claim filed underNotfn 41/2007 ST as amended for refund of ST paid on various input services utilizedin relation to export of goods has been rejected mainly on the ground that claim istime barred or on the ground that respective input services have not been specified insaid Notfn - For issue of time bar, matter is covered by Tribunal's decision in case ofChandrashekhar Exports - 2015-TIOL-2448-CESTAT-MUM - In case of rejection ofrefund for respective input services pertaining to 'terminal handling charges', 'wharfagecharges', 'loading unloading' and 'technical testing and analysis' on the ground thatrespective service is not specified in said Notfn, matter is covered by Tribunal'sdecision in case of Angiplast Pvt Ltd and in assessee's own case that is Ruchi SoyaIndustries - Assessee is entitled to refund claim filed under Notfn 41/2007 -Consequently, impugned order is set aside and appeal allowed: CESTAT


Reliance Global Services Vs CCE,CC & ST (Dated: May 30, 2017)

ST - Penalty - Assessee was rendering two services i.e. manpower recruitment agencyservices and commercial coaching and training services - As regards to penalty forcharges of non-payment of ST liability in category of manpower recruitment and supplyagency services - Assessee has discharged entire ST liability along with interest beforeissuance of SCN - Thus, penalty imposed on assessee under Section 78 is set aside -As regards to penalty imposed on assessee under category of commercial coaching andtraining service, assessee has not produced any documents which would indicate thatthey had specifically billed and collected the value of study materials supplied tostudents - Thus, assessee has no case on penalty imposed: CESTAT


NTPC Ltd Vs CCE (Dated: May 26, 2017)

ST - Assessee is a PSU engaged in generation of electricity and entered into anagreement with BALCO for providing certain services at their Korba Aluminum Complex- Dispute is regarding recovery of interest payable on delayed payment of ST - Totalamount of ST paid by assessee on 30.03.2017 is Rs. 1,26,41,442/- - If this amountincludes any demands pertaining to services rendered to BALCO which stand set asideby Tribunal vide its order dated 10.03.2017, there can be no demand of interest interms of Section 75 inasmuch as tax demand itself does not survive - However, forrest of amounts paid by assessee beyond the period specified in statute for makingsuch ST payment, interest liability in terms of Section 75 is to be upheld - Matterremanded to Adjudicating authority for purposes of verification and determining thequantum of ST which has been paid with delay after excluding portion set aside byTribunal vide its order: CESTAT


Jumera Promotors And Developers Pvt Ltd Vs CCE (Dated: June 5, 2017)

ST - Terms of lease make it clear that the building was let out to M/s Plasser (India)Pvt. Ltd. for residential use by one of its employees - Even if the employee did attendto some personal office work from the said premises, the same will not make it use ofpremises other than the residence in furtherance of business or commerce - taxdemand under 'Renting of Immovable property' does not sustain - tax liability on his

particular tax entry has been a subject matter of substantial litigation and whichresulted in statutory amendments including retrospective legislation w.r.t tax liability,therefore, demand hit by limitation - Impugned order set aside and appeal allowed:CESTAT [para 5 to 7]



Delhi Development Authority Vs CC (Dated:April 24, 2017)

Service Tax - Demand - appellant is a statutory organization set up by an Act ofParliament and constituted under Delhi Development Act, 1957, managed by Membersas mentioned in Section 3 (3) therein - The appellants are registered with Service TaxDepartment under various categories of taxable services - The appellants preparedtheir accounts in the form of annual balance sheet, consisting of three majoraccounting heads namely (a) General Development Account (GDA) which relates to allthe development, construction and other activities undertaken; (b) Nazul - I relating totransaction of old Nazul Estates entrusted to the appellant under Nazul Agreement,1937 in which the appellant had succeeded Delhi Improvement Trust; and (c) Nazul -II account relating to large scale land acquisition development and disposal activities -On conclusion of the enquiry and audit of records of the appellant, the Revenueproceeded to initiate action to demand and recover service tax under the taxablecategory of "renting of immovable property service" under Sec 65(105)(zzzz) of theFinance Act 1994; in respect of incomes shown under the heads "sale value ofdeveloped land", "sale value of undeveloped land" and "sale value of shops" under fourdifferent demand notices covering the material period - the demands were confirmedin the impugned orders culminating in the instant appeals.

Held: If the immovable property is let out for other than commercial purposes no taxliability will be attracted - the appellants strongly pleaded that, out of the total receiptsubjected to service tax, more than 44% will relate to non-commercial land - There isno discussion or finding by the Original Authority regarding noncommercial orcommercial nature of the property let out by the appellant - No analysis was madewith break-up figures with reference to commercial or non-commercial property,valuation of taxable service, abatement or exemptions, if any, applicable to theappellant etc. - the appellants submitted various tabulated charts giving split upfigures, periodwise, under various heads of income; and copies of conveyance deedsfor transfer of free hold ownership rights of the property; showing that the appellant'sclaim is to the effect that these are actually for transfer of free hold ownership of lands(sale) and not lease agreements to collect lease rent in the form of lump-sum leasepremium or periodical rent - It is also strongly contended by the appellant, that after2003, the appellants were engaged only in disposal of Nazul land on free hold basisand not on lease rent basis, which has not been examined by Original Authority for afinding, for correctness and for implication of tax liability which in turn has beenconfirmed considering all such receipts under the category "land premia" - theimpugned order suffers from serious legal and factual infirmities due to non-examination of various relevant facts and also non-consideration of various legal issuesbefore arriving at the tax liability of the appellant [Para 9, 12, 13]

Appellant's plea regarding non-sustainability of demand for extended period in terms ofproviso to Section 73 (1) of the Finance Act, 1994 also has not been dealt with inproper perspective - summary conclusions without examining the ingredients ofproviso to Section 73 (1) and the activities of the appellant, is not proper - The DelhiHigh Court ruling in the case of Home Solutions Retail Ltd., retrospective amendmentsand penalty under Section 80 (2) ibid., are important factual and legal issues whichhave not been examined by the Original Authority and the impugned order cannot belegally upheld; it has to be set aside and the matter has to go back to the OriginalAuthority for a fresh decision - the Original Authority has to examine all the aspects ofthe demand before arriving at the conclusion after providing reasonable opportunity tothe appellant and conclude the denovo proceedings expeditiously, preferably within 3months - the impugned order is set aside and the matter is remanded back to theOriginal Authority for a fresh decision. [Para 14-16]


Deepak And Company Vs CCE, CC & ST (Dated:March 24, 2017)

ST - Assessee, a service provider under head 'Maintenance & Repair Services' and 'ManPower Recruitment Agency service' providing Services to M/s Hindalco Industries Ltd .is in appeal against impugned order wherein demand of ST on reimbursed amount ofProvident Fund & Bonus have been confirmed along with penalty under Section 77 &78 of FA, 1994 - Assessee had paid due taxes and also filed returns from time to timeand as such there is no suppression on their part - As assessee is not contesting thedemand of ST, assessee is entitled to cum-tax benefit for calculation of ST - Matterremanded to Adjudicating Authority who shall recalculate the tax payable on cum-taxbasis - Penalties imposed under Section 77 and 78 set aside: CESTAT


Musaddilal Projects Ltd Vs CCE, CC & ST (Dated:March 22, 2017)

ST - Assessee provided services of Renting of Immovable Property - Assesseechallenged the order of Commr. in which revenue alleged that assessee wronglyavailed credit on iron, steel, cement, electrical panels and sanitary items as they nolonger fall in the definition of input and also taken credit on various services byconsidering them as input services - Demand for reversal of credit was raised byrevenue which assessee objected as it was barred by limitation -Held- The definition ofinput was amended and was effective from 01.04.2011 and it was not applicableretrospectively therefore credit availed by assessee prior to the period of amendmentof definition of input was held justified - Regarding the input service by considering thecase of Infosys Ltd 2014-TIOL-409-CESTAT-BANG services availed by assessee formodernization , renovation of the building fall in the definition of input servicetherefore credit availed on various input services was also held justified - No evidencewas produced to prove that assesse suppressed any fact to evade duty thereforeextended period of limitation invoked was held unjustified: CESTAT( Para2,3,12,14,17)


General Motors India Pvt Ltd Vs CST (Dated: May 12, 2017)

ST - Assessee is a 100% subsidiary of General Motor Corporation, USA and has set-upa Technical Centre in Bangalore from where assessee export its services primarily tooverseas General Motor entities such as General Motor Global Technology Operations,General Motors Corporation, for which consideration is received in freely convertibleforeign exchange - Refund claim of assessee was partially allowed and CENVAT creditdenied with respect to real estate agent and technical testing and analysis services onthe ground that nexus between output services and input services was not establishedby assessee - Impugned order is not sustainable in law with regard to real estate agentservices as well as technical testing and analysis services - In view of variousdecisions, both services fall in definition of input service and both the services arerelated with business activities of company - With regard to two other input servicesviz., advertisement and cargo handling service which was claimed by assessee butthere is no finding given by Commissioner (A), case remanded back to Commissioner(A) with a direction to pass reasoned order: CESTAT


Ruchi Soya Industries Ltd Vs CCE (Dated: May 30, 2017)

ST - Refund claim of assessee filed under Notfn 41/2007 ST as amended were rejectedmainly on account of time bar and on the ground that respective input servicespertaining to terminal handling charges, wharfage charges and inspection andcertification were not specified service under said Notfn - On the issue of time bar,refund claim of exporter assesse has wrongly been rejected as matter is covered by

Tribunal's decision in case of Chandrashekhar Exports 2013 TIOL-2448 – CESTAT –Mumbai - In case of Angiplast Pvt. Ltd. Tribunal discusses the refund claim in case ofservice pertaining to 'terminal handling charges' and concludes that refund for inputservice pertaining to terminal handling charges is admissible in case of exports - Incase of refund claim rejected for services pertaining to 'wharfage charges' and'inspection and certification', in assesse's own case i.e. Ruchi Soya Industries Limited2017-TIOL-341-CESTAT-DEL, the Tribunal has allowed the benefit of refund - Assesseis entitled to refund claims which have been rejected by respective impugned Orders:CESTAT


Orient Craft Ltd Vs CC, CE & ST (Dated: April 28, 2017)

ST - Assessee filed refund claim of ST paid on specified services utilized in course ofexport as specified under Notfn 41/2007 - ST - Same was rejected on the ground thatrefund cannot be considered when goods have been exported, claiming drawback -Issue is no more res-integra - Specified services for which refund is claimed underNotfn 41/2007-ST as substituted and amended, read with Notfn 33/2008-ST read withNotfn 80/2006-Cus. (NT), the refund of Service tax is available inspite of claimingdrawback: CESTAT


Sanjay Singh Associates Vs CCE & ST (Dated: April 20, 2017)

ST - Assessee engaged in providing various taxable services under contract - Revenuesought to classify them under heading " Site Formation & Clearance, Excavation, EarthMoving and Demolition " services & imposed duty demand with penalty - Held -Assessee was not directly involved in activity of site clearance, excavation & earthmoving - First contract was for transportation services involving loading & unloading ofgoods - Second contract was for hiring various special equipments/machineries for theclient for mining activity - Further services were of fixing rates for hiring of suchequipments based on the cubic meter of overburden removed by itself not indicate thatassessee was involved in removal of overburden - Hence the scope of the work showedthat assessee provided equipments such as excavator & bulldozer to enable client toremove overburden - Therefore, such services were not taxable under heading " SiteFormation & Clearance, Excavation, Earth Moving and Demolition ": CESTAT (Para2,37,8)


CST Vs Sarojben Khusalchand (Dated: April 28, 2017)

Service Tax - Renting/leasing of an immoveable property jointly owned by six co-owners - Service tax leviable under the taxable category of " renting of immovableproperty service " - Rent received by co-owners proportionate to the share of propertyand individually claimed the benefit of exemption notification No.6/2005-ST -Revenue alleged that the individuals be considered as an association of persons and betreated as single service provider - therefore the benefit of said NotificationNo.6/2005-ST , dt.1.3.2005 as amended, would not be available to each of the co-owner - SCN issued demanding service tax along with interest and proposal for penalty- the demand was confirmed by Adjudicating Authority and Commissioner (A) - Hence,the present appeal.

Held: The issue to be addressed is whether each of the co-owner, holding immovableproperty jointly, but receive the lease rent separately in proportion to the share in theproperty, is eligible to the benefit of threshold exemption limit as prescribed underNotification No.6/2005-ST , dt.1.3.2005, as amended, separately - Hon'ble SupremeCourt, while discussing the meaning of " association of persons " in their judgment inthe case of Commissioner of Income Tax Vs Indira Balkrishna - 1960 (4) TMI 7 -

2002-TIOL-1254-SC-IT-LB Supreme Court, observed “Section 3 of Income Taximposes a tax in respect of the total income of every individual, Hindu undividedfamily, company and local authority, and of every firm and other association of personsor the partners of the firm or members of the association individually - In the absenceof any definition as to what constitutes an association of persons, we must construethe words in their plain ordinary meaning and we must also bear in mind that thewords occur in a section which imposes a tax on the total income of each one of theunits of assessment mentioned therein including an association of persons - There isno formula of universal application as to what facts, how many of them and of whatnature, are necessary to come to a conclusion that there is an association of personswithin the meaning of Section 3 of the Income-tax Act - it must depend on theparticular facts and circumstances of each case as to whether the conclusion can bedrawn or not - the real test is the existence of a common source of income in whichtwo or more persons are interested as owner or otherwise and it is immaterial whethertheir shares are specific and definite or whether there is any scheme of managementor not” - it is difficult to accept the proposition advanced by the Revenue that all theco-owners providing the service of renting of immovable property be considered as anassociation of persons and the service tax on the total rent be collected from one ofthe co-owners - Conceptually service tax is levied on the service provided, which is anintangible thing and hence it is not necessary to be identified with physicaldemarcation of the immovable property given on rent against individual co-owners -Once the value of service provided by a service provider is ascertainable service tax isaccordingly charged - Hence the impugned orders are set aside - Appeals allowed -(Para 6- 9).


State Trading Corporation Of India Ltd Vs CST (Dated: June 15, 2017)

ST – Appellant deducts service charges of 2% on exports, bank charges and trademargin etc. – As the appellant does not, at any stage, become the owner of the goods,there can be no doubt that the said income is not trading profit but is consideration forsome specific services rendered by the appellant – section 73 is the sole statutoryauthority for initiating recovery proceedings - impugned order confirming service taxliability upheld and appeal dismissed: CESTAT [para 5, 6] - Appeal dismissed: MUMBAICESTAT



Raheja Universal Pvt Ltd Vs CST (Dated:June 12, 2017)

ST – Demands under BAS, Management, maintenance or repair service, Health andfitness service - Consideration received from group companies - Under FA, 1994, it isnot the transfer of money that is taxable but the provision of a specific servicedescribed in section 65(105) - Even if the appellant has collected lump-sum amountsfrom the owners of the units, the service of providing 'management/maintenance orrepair service' is procured by the appellant from organisations that possess thenecessary proficiency - appellant is a recipient of the services provided by'management, maintenance or repair' service providers, therefore, it does not appearto be logical for the appellant to be taxed as a provider of the service - To provideaccess to the clubhouses, the appellant had been charging some amounts and theyhave been paying tax as a provider of 'club or association service' ever since that wasincluded as a taxable entry - No evidence has been placed on record by Revenue thatthe services so provided are not in the latter category but in the former – Impugnedorders set aside and appeals allowed: CESTAT [para 4 to 7]



Taher Ali Industries And Projects Pvt Ltd Vs CCE (Dated:April 19, 2017)

ST - Assessee were executing various projects as main contractors which involvedsupply of manufactured goods namely PSC pipes and supplied to Tamil Nadu WaterSupply and Drainage Board - Department views that service provided by assesseewere in nature of erection and commissioning or installation services - Secondappellant were sub-contractors for assessee and undertaken the work on back to backbasis consisting of manufacturing, supplying, laying, jointing, testing andcommissioning of Mayiladuthurai Underground Drainage System - Matter is no longerres integra - Composite services of genre provided by assessee prior to 1.6.2007 wouldfall under ambit of 'works contract service' - Contention of assesee that said serviceswould not be leviable under ST prior to 01.06.2007 from which date works contractservice became taxable is correct: CESTAT


CC Vs Swadeshi Construction (Dated:March 16, 2017)

ST - Assessee was awarded two contracts for Construction and Development of DilliHaat, at Pitampura and INA through tendering process by "Delhi Tourism andTransportation Development Corporation" (DTTDC) - SCN issued for levy of ST onactivity carried out by assessee under CIC for period 2006-2007 to 2008-2009 -Assessee claimed that Dilli Haat is not a commercial building and entry to Dilli Haat isby entry ticket but rent charged for temporary occupation of various stalls is verynominal - Assessee submitted that in view of decision of Supreme Court in case of M/sLarsen Toubro Ltd and Anr. 2015-TIOL-187-SC-ST , no ST can be charged on activitiescarried out by assessee for the period prior to 1.06.2007 - Held: In light of saidjudgment, there can be no levy of ST for the period upto 31.05.2007 if the contractsexecuted are in nature of composite works contract as claimed by assessee - However,this fact will need verification by going through Original contracts - Matter remandedand assessee is directed to submit relevant documents for verification - For the periodw.e.f. 01.06.2007, activity will be liable to ST under category of WCS - The liability ofST will need to be re-determined under WCS and afresh demand raised: CESTATs


CST Vs Shilpkar Interiors Designers Consultants Pvt Ltd (Dated:April 26,2017)

ST - Assessee engaged in providing construction services - Revenue alleged thatassessee incorrectly classified its services under " Construction services " & availedineligible abatement under Notfn. No.15/04-ST & Notfn. No.1/2006-ST - Revenueclassified the services under heading " Completion and Finishing Service ofCommercial/Residential Building " whereas Original Authority (OA) classified theservices of assessee under " Commercial or Industrial Construction Service/ResidentialComplex Services " - OA allowed the abatement as assessee fulfilled the conditions -Revenue challenged the abatement given & sought re-classification of servicesprovided by assessee - Held - Considering the factual matrix, it was clear that the OAproperly reviewed the various documents submitted by the revenue and assessee -Considering the ratio held in the case of Larsen & Toubro Ltd. there was no need toclassify the services of assessee because o service tax liability arose on assessee forthe period prior to 1.6.2007, and for the period after 1.6.2007, assessee had alreadydischarged the service tax - No further findings given regarding the exact quantum ofservice tax liability of the assessee for the period after 1.6.2007 as resolution was notsought on this issue - Revenue appeal lacks merit & so, set aside: CESTAT (Para2,3,7,8)


Study Overseas Global Pvt Ltd Vs CST (Dated: March 23,2017)

ST - Assessee engaged in the promotion and marketing of universities located in India& abroad, and received some commission for such activity - Revenue alleged thatassessee wrongly availed CENVAT credit of tax paid on input services under Notfn. No.5/2006-CE(NT) on grounds that the services provided by assessee did not qualify asexport of services, more so when the services were provided and also used in India -

Duty demand for reversal of CENVAT credit was imposed, and is now in challenge byassessee - Held - Following the ratio in the cases of Microsoft Corporation , BurmahShell Oil Storage & Distributing Co. of India Ltd , All India Federation of TaxPractitioners and in Study Overseas India the services provided by the assessee wereconsidered export of services even though these services were provided from India andused outside Indian: CESTAT(Para 2,3,4,7,8)


Uttarakhand Van Vikas Nigam Vs CCE (Dated: April 18, 2017)

ST - Assessee, a corporation of Uttarakhand Government, engaged in work of scientificextraction and sale of forest produce and other natural resources in Uttarakhand -They availed service of various transporters for transportation of forest products fromtheir units to depots - There is no intention on part of assessee to evade payment ofST - As soon as fact of dues of ST was brought to the notice of assessee, theyattempted to pay their liability of ST along with interest - However, Revenue did notnotify the assessee about exact amount of interest payable on their account - Thoughliability of interest has not so far been quantified by Revenue, assessee deposited STas well as some excess amount in ST head as mentioned by Revenue - In light ofprovisions of Section 73(3) and Section 80 of FA, 1994, no penalty is liable to beimposed on assessee - If there is any balance interest remains payable the samewould be payable forthwith by assessee: CESTAT


Target Sourcing Service India Pvt Ltd Vs CCE & ST (Dated: January 24, 2017)

Service Tax – Export of Services – Refund under Rule 5 of CENVAT Credit – Refunddenied on the ground that ( i ) The services rendered do not qualify the term Export asstipulated in Export of Services Rules, 2005. (ii) Some of the input services do notqualify the definition of input service in terms of Rule 2(l) of Cenvat Credit Rules,2004.

Held: Following the precedent decisions, it is held that the Business Auxiliary Servicesrendered by the appellant, to their principal in Hong Kong is to be considered as,service provided from India and used outside India – Ground taken for denial of Crediton input services is also not valid (para 8 & 9)

The appellant will be entitled to refund under Rule 5 of Cenvat Credit Rules, 2004.However, for verification of receipt of foreign exchange and connected matters, thecase is remanded to the Original Adjudicating Authority with directions to finalize theissue within two months from the date of receipt of this order. (para 11)


Wipro Bpo Vs CST (Dated: March 15, 2017)

ST - Assessee engaged in providing various out-sourced & back-office services -Assessee filed refund claim of duty paid on various input services used for export ofservice abroad under the Notfn. No.5/2008–NT as per Rule 5 of CCR, 2004 - Revenuedenied the refund because assessee had not supplied the copy of the agreement andvarious other documents in support of the amount claimed - Held - After going throughthe records of the case it was proved beyond the doubt that assessee furnished all thecertified copies of the documents on which the refund was based however revenuemade an error by not considering these documents - Therefore, matter remanded backto the adjudicating authority to decide the issue afresh by giving fair opportunity toassessee and by considering the documents already submitted by the assessee:CESTAT (2,4,5)


Superfil Products Pvt Ltd Vs PR CCE (Dated: April 12, 2017)

ST - Assessee engaged in manufacturing excisable goods - Revenue alleged thatassessee wrongly availed cevat credit of service tax paid on security services availed -Under the reverse charge mechanism, w.r.t. services provided to body corporate, theservice recipient is liable to pay 75% of the tax while 25% is to be paid by the serviceprovider - Revenue alleged that the assessee paid 100% of the tax of which assesseeincorrectly claimed credit of such tax paid - Duty demand with interest and penaltywas imposed - Held - Reverse charge mechanism only provides for distribution of taxliability and states that a service provider or recipient was only "liable to pay" - Henceeven if the tax burden is passed on to the provider, the receiver is not barred fromavailing credit on the service - There is no violation of Rule 3 of CCR, which permits amanufacturer/service provider to take credit of the duties, cess, tax etc.provided suchduty, tax etc. leviable has also been paid inter alia on any input service received by themanufacturer/service provider - Therefore, there is no dispute since the service taxstands paid: CESTAT (Para 1,6)


Vodafone Essar South Ltd Vs CCE (Dated: December 8, 2016)

ST - Assessee availed Cenvat Credit on ST paid on input services, CX duty paid oninputs and Capital Goods - Such Cenvat Credit was utilised to pay ST liability arising onoutput service - Two SCNs were issued to deny CENVAT credit of excise duty paid onvarious items used in or as towers and shelters on the basis that annexures providedwith Return establishes that said items are not capital goods or inputs - Said SCNswere adjudicated allowing the credit on such items, though certain demands wereconfirmed such as utilization of credit beyond limit of 20% of ST liability - Assesseewas enquired regarding availment of credit on said items and was asked bydepartment to reverse the credit on said items - Commissioner passed the order dated30.01.2009 confirming demand proposed in SCNs - Assessee challenged the samebefore this Court which was heard and order was reserved by this court - Assesseecontested the demand on merit as well as on limitation - As there was difference ofopinion between two Members, therefore Registry was directed to place the file beforePresident for reference to be made to third member on issues - Considering saiddecision of Bench demand of inadmissible Cenvat Credit for normal period of limitationis upheld - The demand raised for extended period of limitation is set aside; and allpenalties have been set aside: CESTAT


CCE, C & ST Vs BSNL (Dated: April 10, 2017)

Service Tax – Request for provisional assessment – Request for ProvisionalAssessment of the service tax under Rule 6(4) of the Service Tax Rules 1994 allowed –thereafter, the provisional assessment was finalized and the short-paid service tax wastaken up along with applicable interest - Assessee was held to be eligible for aconsequential refund subject to the condition as prescribed under Section 83 of theFinance Act 1994 – On appeal, Commissioner (A) allowed the appeal of assessee –Hence, the appeal by revenue.

Held: The present appeal is not maintainable in the absence of permission by the CODwhich has specifically denied the permission in the present case – Hence, the appeal isdismissed as it is not maintainable – (Para 5).


M/s Delhi Lawn Tennis Association Vs CST (Dated: November 28, 2016)

ST - Assessee is a society of various affiliates such as clubs, educational institutions,

tournament committees and other organizations established with primary objective ofpromotion, development and control of game of tennis in Delhi - ST has beendemanded under "Club or Association Service" on various charges recovered byassessee its members - Assessee claimed that no ST will be payable by assessee inview of decisions of High Courts of Gujarat as well as Jharkhand wherein taxableservice of "Club or Association" has been held to be ultra vires - When taxable entryitself has been struck down by High Court, assessee cannot be held liable to pay ST onamounts recovered by them from its members: CESTAT


CCE & ST Vs M/s Bharat Dynamics Ltd (Dated: May 4, 2017)

ST - Assessee was receiving services from service provider situated abroad - Assesseewas issued a SCN dt. 05.01.2011 for payment of ST by invoking extended period whendemand was for period 2007-08 to 2009-10 - They replied to said SCN - Subsequently,revenue authorities issued second SCN dt. 11.04.2012 demanding ST for period 2007-08 to 2011-12 by invoking extended period and also alleging that assessee wasrecipient of services hence liable to discharge ST under section 66A of FA, 1994 -Impugned order of adjudicating authority is correct and legal to the extent it dropsdemand which has been raised by SCN dt. 11.04.2012 which is beyond the period oflimitation for more than one reason - First appellate authority has correctly relied uponthe judgment in Hyderabad Polymers (P) Ltd 2004-TIOL-35-SC-CX , Nizam SugarFactory 2006-TIOL-56-SC-CX and various other Tribunal decisions on similar set offacts: CESTAT


Namdhari Food International Pvt Ltd Vs CCE (Dated: April 26, 2017)

ST - Assessee being an exporter filed refund claim under Notfn 41/2007 for theservices received and utilised for export of goods namely Terminal Handling Chargesand GTA Service - Issue regarding Terminal Handling Charges has already been settledby Gujarat High Court in case of AIA Engineering Pvt. Ltd. wherein it has been heldthat Terminal Handling Charges are covered under port service, therefore, assessee isentitled to claim refund to Terminal Handling Charges and Bill of Lading charges underport service in terms of Notfn 41/2007-ST - It is merely allegation that transportationcharges has been paid by assessee appellant to and fro from their factory but noevidence has been produced by Revenue on record, therefore, assessee is entitled forrefund claim under Notfn 41/2007 - Issue of time barred and assessee has claimeddrawback, were not raised in SCN, therefore, observations made by lower authority isbeyond the scope of SCN which are not maintainable: CESTAT


Jagdish Chandra Malviya Vs CCE & ST (Dated: March 3, 2017)

ST - Neither anybody appeared on behalf of assessee nor any adjournment applicationis filed - Appeal dismissed mentioning that as per the maxim VIAILATIBUS ET NONDORMIENTIBUS JURA SUB VENIUNT, law helps those who are vigilant and not thosewho go to sleep: CESTAT


CCE & ST Vs Kumar Drinks Pvt Ltd (Dated: February 20, 2017)

ST - Assessee engaged in providing services of promotion and marketing/distributionof various products of M/s. B.S.N.L. which allegedly fall under category of BAS in termsof Section 65(105) (zzb) of FA, 1994 - M/s BSNL has paid ST on face value of SIMcards and Recharge Coupons - In view of decision in M/s G.R. Movers 2012-TIOL-2012-CESTAT- DEL , assessee is liable to pay ST on commission paid by M/s BSNL tothem, but since, BSNL has already discharged the burden of payment of ST on facevalue, therefore assessee is not liable to pay ST again on the same value - Issue is no

longer res-integra and the same is decided in favour of assessee by precedent decisionof Tribunal in case of M/s South East Corporation 2007-TIOL-1574-CESTAT-BANG -Respectfuiiy following the ratio of said judgement, appeal dismissed: CESTAT


Kp Harikumar And Smt Suma Hari Kumar Vs CCE, C & ST (Dated: February 13,2017)

Service Tax - Refund - the appellants are the individuals who have purchased flatsfrom a builder and later on filed an application for refund - the refund was rejected onthe ground that Board Circular No.108/02/2009 dated 29.1.2009 is not applicable totheir cases; now agitated herein.

Held: It was explicitly held in the FO dated 20.08.2014 in a bunch of identical caseswhere individual flat owners filed refund claims, that the claim may not be rejected onthe ground that there is no bill or invoice; that what is required according to theprovisions of Section 11B of the Act is the evidence that the person claiming the refundhas borne the service tax liability and not passed on the same to any other person;that so long as the document shows that the service provider is a registered person,his registration number is available and details of service tax paid and the certificateby the developer that he has paid the service tax and statement showing the value ofservice tax are provided, it would be sufficient to consider the claim - instant cases areremanded to the original authority for disposal on same lines, after affordingreasonable opportunity of hearing and passing a speaking denovo order. [Para 4.2, 5]


Continental Engines Ltd Vs CCE (Dated: FEBRUARY 7, 2017)

ST - Assessee filed refund claim relates to ST paid on inland haulage charges,transportation charges and bill of lading charges through CHA who had issued invoiceand collected ST from assessee - Same stands denied on the ground that invoices arenot in its name - Assessee submits that some of the invoices are in name of Headoffice which again cannot be adopted as a reason for denial of refund - Impugnedorder set aside and matter remanded to original adjudicating authority to reconsiderassessee's contention that invoice are in their name only or in name of Head Office inwhich case, they would be entitled to refund: CESTAT


New Global Technologies Vs CCE (Dated: February 27, 2017)

ST - Assessee availed the services of a sub-contractor while rendering final service tothe recipient located abroad - Assessee sought to avail cenvat credit of such inputservice, however, credit was denied by revenue - Held - w.r.t. the services receivedfrom the sub-contractor, revenue did not establish that the service received from thesub-contractor for ultimate provision to the overseas service recipient was absent -There was an indivisible link between the input service and the output service - Hencethe credit of service tax paid by the assessee to the sub-contractor enables theassessee to claim refund of the same - Hence matter remanded for re-adjudication inlight of the same: CESTAT (Para 2,7,12)


Ginni Filaments Ltd Vs CCE & ST (Dated: March 30, 2017)

ST - Assessee, manufacturer and exporter of cotton garments, had filed refund claimof ST paid in course of services received in their business of export - First objection isthat as per proviso 1(d) of notfn, refund of input service tax is allowed, if no Cenvatcredit of service tax paid on specified services used for export has been taken - Thisground of rejection is not tenable under the fact that assessee availed benefit under

said Notfn and further no instance of taking Cenvat credit in pointed out in impugnedorders - CBEC Board Circular 13/2000-SC is specific in stating that only the inputservices which have been used in manufacture, have been factored - Further recordedby Tribunal clarified that services availed in course of export, post clearance have notbeen factored in All Industry Rates of Drawback and accordingly the same is notrelevant for purpose of refund - Next ground of disallowance with respect to GTAServices - Assesee have incurred services for transport of goods in course of export toBangladesh - In course of export to Bangladesh, goods are factory stuffed and sealedand permitted for export - Accordingly, it is further explained that GRN issued bytransporter shows that goods have been packed in container - Further, such details areco-relatable with let export order and invoice of assessee - Refund of tax/duty on GTAServices is available in principle, subject to verification of bills of GTA Service providerwith export documents: CESTAT


Integral Construction Company Pvt Ltd Vs CCE (Dated: February 2, 2017)

ST - Assessee engaged in removal of extra burden in mining area - Revenue views thatsuch activities would fall under taxable category of "site formation and clearance,excavation services" - Matter was being taken up by service recipient with highestbody of Revenue and assessee deposited the entire amount of tax subsequent toclarification - High Court of Karnataka in case of Adecco Flexoline Workforce SolutionsLtd. 2011-TIOL-635-HC-KAR-ST, has held that when assessee deposits the entire duty,proceedings cannot be started against him for imposition of penalties in terms ofsection 73 of the Act - As matter was under confusion and was only clarifiedsubsequently, provisions of section 80 would be attracted, thus not calling for anypenalty: CESTAT


Merino Industries Ltd Vs CCE (Dated: March 30, 2017)

ST - Assessee is a manufacturer of laminated sheets and also exports the same - Theyfiled the refund claim under provisions of Notfn 41/2007-ST with regard toconsumption of services in the course of export mainly port services - Services coveredby SCN are handling, stevedoring, loading, unloading, tug hire and labour arrangementservices, which is squarely falling within scope of port services - Therefore, that cannotgo out of ambit of said service to entertain the refund claim of assessee on such count- Date of loading for exportation under Section 51 of Customs Act, 1962, all theservices received till the goods reached gateway, port or port of export and/or loadedon ship or aircraft for purpose of export till such time are allowable forexemption/refund under provisions of said Notfn: CESTAT


British School Of Language Vs CST (Dated: March 22, 2017)

ST - Assessee engaged in imparting coaching of English language, for consideration -Dispute is regarding their eligibility to exemption Notfn 24/04-ST and prior to that forNotfn 9/2003-ST - Lower authorities denied the exemption on the ground that no skillis being imparted by assessee - Assessee did submit various supporting evidence toillustratively show that participants did gain employments as a consequence of trainingimparted by assessee - Assessee will be eligible for exemption under Notfn 9/2003,24/2004 except for period 01.07.2004 to 09.09.2004 during which no exemption Notfnwas available - The tax liability for said period shall be calculated after extendingbenefit of Notfn 12/03-ST upon verification of documents submitted by assessee:CESTAT


NTPC Ltd Vs CCE (Dated: March 10, 2017)

ST - Assessee, a PSU engaged in business of generation of electricity and provision ofconsultancy services - They entered into an agreement with BALCO for carrying outactivities of transportation of coal from one point to another within the factory andfurther for carrying out process of crushing of coal for both activities together - Activityof crushing of coal cannot be covered within any of sub-clauses of BAS until itsamendment w.e.f 16.06.2005 - After said amendment, activity can be brought withinterm of processing and hence, liable to ST under BAS - Consequently, there can be nodemand for ST prior to this date - Assessee has excluded an amount of Rs 30/- per MTfrom consideration received from BALCO at the time of payment of ST and basis forexclusion is that this amount is attributable to transportation of coal within factorypremises - If crushing of coal is considered as activity covered under BAS,transportation of coal for such purpose would also be included since it is intimatelyconnected with crushing - Hence, no basis found to exclude Rs 30/- from payment ofST.

The levy of ST under BAS has seen repeated amendments to enlarge the scope of thisservice - Hence, it is considered to be a fit case to waive penalties imposed inimpugned order under Section 80 of FA, 1994 - However, ST liability for period w.e.f16.06.2005 is upheld along with payment of interest thereon: CESTAT


Orient Craft Ltd Vs CCE & ST (Dated: May 5, 2017)

ST - Denial of refund on account of duty drawback claimed - Inland Haulage Charges,CHA Service and Clearing and Forwarding Agent Service have been received byassessee for export of goods at port, and are covered under Port Services - Sinceinvoices of said services are on record, wherein payment of ST is mentioned, assesseeis entitled to avail claim of refund filed by them on other Port Services.

Denial of refund with regard to road transport service - Main contention of Revenue fordenial of refund is that, there is no co-relation of invoices issued by service providerand goods transported - Adjudicating authority is directed to verify the documents toascertain co-relation between services received by assessee and correspondinginvoices issued by goods transporter: CESTAT


IWI Crogenic Vaporization System India Pvt Ltd Vs CCE (Dated: February 14,2017)

ST - ROM - Even though assessee had unsuccessfully challenged Order of Tribunalbefore Gujarat High Court, application is filed seeking ROM claimed to be apparent onthe face of record - Assessee's claim that mistake that have crept into order is thateven though assessee is entitled to benefit prescribed under first proviso to Section 78of FA, 1994, Tribunal in its order has not extended said benefit to assessee - Issue wasneither raised before any of forums nor before Tribunal and sought to be raised for firsttime through this rectification application - The relief, which assessee seeks would bepossible only in exercise of power to review order, by reassessing/re-appreciation ofevidence and undertaking detail examination of records - Therefore, fact should berequired to be considered for first time is not permissible in exercise of limited powerof rectification of mistake, in view of Judgment of Supreme Court in case of RDCConcrete (India) P.Ltd. 2011-TIOL-77-SC-CX - ROM application is devoid of merit,accordingly rejected: CESTAT


Orient Craft Ltd Vs CCE (Dated: May 4, 2017)

ST - Denial of refund on account of duty drawback claimed - Inland Haulage Charges,CHA Service and Clearing and Forwarding Agent Service have been received byassessee for export of goods at port, and are covered under Port Services - Sinceinvoices of said services are on record, wherein payment of ST is mentioned, assessee

is entitled to avail claim of refund filed by them on other Port Services.

Denial of refund with regard to road transport service - Main contention of Revenue fordenial of refund is that, there is no co-relation of invoices issued by service providerand goods transported - Adjudicating authority is directed to verify the documents toascertain co-relation between services received by assessee and correspondinginvoices issued by goods transporter: CESTAT


Sharp Business Systems Ltd Vs CST (Dated: February 28, 2017)

ST - Assessee is claiming benefit of Notfn 12/2003-ST where value of goods andmaterials will get abatement benefit to them - Documentary proof was submitted byassessee to the Revenue, though Revenue in impugned order notes that benefit wasnot extendable to assessee as assessee had failed to show any documentary proof inrespect of value of material and goods sold - Assessee has submitted CA Certificatewhich was based on examination of returns and books of accounts of assessee and itconfirmed that ST was correctly discharged - Further, there has not been anysubstantial reasons and evidences to counter the contents of documentary proofsubmitted in terms of Notfn 12/2003-ST giving necessary abatement benefit toassessee - Thus, assessee is entitled to benefit of Notfn 12/2003-ST: CESTAT


Ordnance Factory Vs CCE (Dated: May 30, 2017)

ST – Appellants are engaged in the manufacture of Explosives and also registered as aGTA – appellant had also provided shopping complex on rent for commercial purposeto various shopkeepers and received rent – demand confirmed under ‘Renting ofImmovable Property Service'. Held: As per SSI exemption notification 6/2005-ST, inpara 3 it is provided that where the person is paying duty on GTA under reversecharge mechanism, the amount of GTA shall not be taken into account for determiningthe aggregate threshold limit of exemption – as this aspect has not been considered bythe lower authorities, therefore, demand has been wrongly confirmed andCommissioner(A) also erred in upholding this order – order set aside and appeal isallowed: CESTAT [para 5]


CCE Vs Mitcon Consultancy and Engineering Services Ltd (Dated: May 5, 2017)

ST - Respondents are not providing any service to the trainees but they are providingservice to central/state government - classifiable under BAS and exempted under14/2004-ST as activities conducted by the respondent are in nature of training for aparticular purpose like repairing of air conditioner, agri-tourism, aquarium making etc.and it cannot be denied that these activities are related to education - o-in-a upheldand Revenue appeal dismissed: CESTAT [para 8 to 12]



Star Motors Vs CCE (Dated: May 30, 2017)

ST – Authorized Service Station - Claim of appellant is that parts are replaced, duringservice of vehicles, which are sold to customer and on which VAT is paid, therefore,that portion being a sale transaction is not liable for service tax; that only the labourcharges is liable for service tax on which service tax has been correctly discharged.Held: On perusal of the sample invoice of the authorized service station, it is foundthat the parts used for providing repair and maintenance service of the vehicle, sameis clearly sold to the client on which the VAT was paid – Therefore, the parts used forproviding repair and maintenance service is sale of goods and not part of service,therefore, the same is not taxable under the Finance Act, 1994 - Moreover, even if the

part replaced during repair and maintenance of the vehicle is considered as part of theoverall service of the authorized service station, since the description of parts, quantityand value was clearly shown separately in the invoice the same is covered underexemption Notification No. 12/2003-ST and for this reason also no service tax can bedemanded on the sale of the parts – demand is clearly not sustainable, hence order isset aside and appeal is allowed: CESTAT [para 4]


Digital Communication Vs CCE (Dated: May 30, 2017)

ST – Appellant is engaged in the activity of sale of SIM-cards and recharge voucherson behalf of Bharat Sanchar Nigam Ltd on commission basis – Service Tax demandedunder BAS – demand confirmed and penalty imposed – order upheld byCommissioner(A), therefore, appeal before CESTAT. Held: Identical issue has beenconsistently decided by Tribunal - 2015-TIOL-2394-CESTAT-ALL , 2016-TIOL-562-CESTAT-DEL as well as High Court that commission in respect of sale of SIM cards andrecharge coupons is not liable to service tax in the hands of distributors on the groundthat SIM cards and recharge coupons are sold at MRP and on such MRP, service tax isalready discharged by the mobile service provider – as issue is no more res integra ,impugned order set aside and appeal allowed: CESTAT [para 5]


Vippy Industries Ltd Vs CCE (Dated: May 24, 2017)

ST – Notification no.41/2007-ST - Refund benefit of ST paid on CHA service andTerminal Handling charges denied on the ground that the said services are notconforming to the definition of port service as defined under the Finance Act, 1994 :HELD – Since the disputed services were utilised within the port for facilitating exportof goods, the said services should be eligible for consideration as port service for thepurpose of availment of refund benefit - impugned order is set aside and appeal isallowed : CESTAT [para 3, 4]


Sterling Agro Industries Ltd Vs CCE (Dated: May 30, 2017)

ST –Penalty under section 76 of the Finance Act, 1994 [Act] imposed on the appellantfor non-payment of ST under reverse charge mechanism during the period 2006-07 to2008-09 : HELD - It is an admitted fact on record that the appellant was liable to payST under reverse charge mechanism on the services received from the foreign agents -however, payment of ST by the service receiver was highly contentious, which wasfinally resolved by the Bombay High Court in the case of Indian National Ship Owner'sAssociation - since the Department has not specifically proved with any tangibleevidence involvement of the appellant in the activities concerning fraud, collusion etc.,with intent to evade payment of tax and in view of the fact that upon detection ofmistake, the appellant had promptly deposited the ST alongwith interest into theGovernment Exchequer, the benefit of section 80 of the Act can be invoked –impugned order set aside and appeal allowed to the extent of imposition of penaltyunder section 76 of the Act : CESTAT [para 6, 7]


Nitin Spinners Vs CCE (Dated: May 24, 2017)

ST – Refund benefit of ST paid on CHA service and Terminal Handling charges deniedon the ground that the said services are not conforming to the definition of port serviceas defined under the Finance Act, 1994 : HELD – Since the disputed services wereutilised within the port, facilitating export of goods, the said services should be eligiblefor consideration as port service for the purpose of availment of refund benefitcontained in notification no.41/2007-ST dated 6.10.2007 – appeal allowed : CESTAT

[para 5, 6]


Hindustan Engineering Vs CST (Dated: May 31, 2017)

ST -Appellant has taken registration under the category of Works Contract Servicewhich came on the statute book from July, 2007 and is paying ST under the saidcategory - during the scrutiny of records of M/s.J.K.Tyres Industries Ltd. it wasobserved by the department that appellant has provided 'maintenance and repairservice' to them for which no ST appeared to have been paid - SCN issued - for theperiod upto June, 2007, demand of ST confirmed, penalties imposed : HELD - Sincethe maintenance work involved supply of goods for replacement of faulty ones as wellas rendering of service, the activity carried out is in the nature of Works ContractService, even for the period prior to 1.6.2007 - the department has not brought anyevidence on record to show that the activity carried out prior to 1.6.2007 was different-it has been held by the Supreme Court in the case of Larsen & Turbo Ltd. - 2015-TIOL-187-SC-ST that any service which is covered within the description of workscontract service with effect from 1.6.2007, cannot be classifiable and charged to STunder a different category for the period prior to this date -the ratio of the Apex Courtdecision is applicable to the present case -consequently, the demand for ST cannot besustained - impugned order set aside, appeal allowed : CESTAT [para 5, 6]


State Bank of India Vs CCE (Dated: March 2, 2017)

ST - Assessee is a government bank - DGCEI got information through intelligence andpassed on to revenue that assessee provided services in relation to operation of thebank accounts for Employees Provident Fund Organization (EPFO) which fall under'Banking & Financial Services' and received commission for providing the services andnot paid ST on the commission that assessee received from EPFO - SCN was issueddemanding ST with interest & imposed penalty as assessee evaded the ST - Held -Revenue was unable to prove the guilt of the assessee as revenue couldn't produce theletter written by the DGCEI to revenue alleging assessee involved in evading the ST -Further the SCN was issued without any allegation that assessee had filed wrongreturns - Further before the issuance of SCN documents on which revenue relied werenot corroborated or neither cross-checked for authentication - Therefore, SCN wasbased on incomplete information and demand was held bad in law: CESTAT (Para3,4,5)


Singh Sales and Services Vs CC, CE & ST (Dated: October 10, 2016)

ST - Assessee entered into a contract with BSNL on the terms that assessee will supplythe spare parts and same shall be billed separately in invoices - Revenue issued a SCNbelieving that the assessee have not taken registration and have not disclosed theirproper affairs to revenue - Assessee filed the copy of bills raised on service receiverwherein the materials have been billed separately and the labour charges have beenbilled separately - Sales tax have been levied as applicable on the materials sosupplied - The Tribunal views that the assessee had paid taxes and it appears that ithave paid rather more amount than the amount actually payable as per the calculationproduced - Accordingly, penalty under Section 78 is set aside - The appeal is allowedby way of remand to the adjudicating authority for the limited purpose of recalculatingthe tax payable after allowing threshold exemption of material component from thegross amount: CESTAT


Integra Software Services Pvt Ltd Vs CCE (Dated: April 13, 2017)

ST - Issue relates to refund claims filed by assessee which were only partly sanctioned,rejecting the amounts pertaining to Cenvat credit involved on 'Renting of ImmovableProperty service, Commercial Training or Coaching service, TelecommunicationServices, Management or Business Consultancy service - Assessee have paid STliability in respect of renting of immovable property by mistake - Even if assessee havepaid or suffered tax liability by mistake, they cannot claim refund thereof under Rule 5of CCR, 2004 but, under other facilitating provisions in law - On the matter ofCommercial training or coaching services, that relates to training of nominatedemployees, same would be an eligible input service, and in particular, they are also notbarred by exclusion clause of Rule 2 (l) of CCR, 2004 - As regards to Tele-communication service, concerning landline/mobile telephones installed at residence ofemployee, credit should be permitted - Department has not disputed the credit availedon management consultancy charges per se - What has been denied is additionalcharges for transportation claimed by consultancy - Assessee has not produced anycontract or agreement wherein such transport charges are required to be paid, inaddition to consultancy charges - This being so, credit availed in respect of suchtransport charges will not be eligible for purpose of refunds under Rule 5 ibid: CESTAT


CCE Vs Hind Energy and Coal Benefication (Dated: March 23, 2017)

ST - Revenue is in appeal against impugned order whereunder inter alia assessee hasbeen allowed the benefit of self-adjustment of demand of ST against the refundadmissible to assessee for excess payment of ST made - Considering the decisions ofTribunal in Dell India Private Limited and GM, Telecom, BSNL, adjustment of excesspayment of service tax is admissible to assessee - There is no merit in the appeal filedby Revenue, same is dismissed: CESTAT


CCE Vs Rajasthan State Mines And Minerals (Dated: April 5, 2017)

ST - Assessee engaged various goods carriage vehicles for transport of goods, forwhich they are paying freight charges - Dispute is in respect of such transports where,for the whole transport carriage, the freight does not exceed Rs. 1,500/- - Assesseeclaimed exemption under Notfn 34/2004-ST - There is no multiple consignments - Noneed to take a single consignment, with no other consignment in same lorry, to becovered under category of clause (i) of said notfn - Such interpretation will be againstplain reading and also will make operation of notfn difficult in different situations, ofindividual consignments having freight of below Rs. 750/-/above Rs. 750/- and alsoabove Rs. 1,500/- - Different situations are contemplated and facts of the case are tobe applied to examine availability of exemption under said notfn - Considering thedecision of Tribunal in Bellary Iron & Ores Pvt. Ltd. 2010-TIOL-704-CESTAT-BANG ,impugned order of Commissioner is not legally sustainable: CESTAT


Golden Engineering Work Vs CCE (Dated: March 15, 2017)

Service Tax - Limitation - Appellant took suo-moto registration with the Department,under the classification 'maintenance or repair service', which they were providing toM/s Harduaganj Thermal Power Project, & to U.P. Rajya Vidyut Utpadan Nigam Ltd.Kasimpur, Aligarh - Revenue viewed that the said service of maintenance or repairbecame taxable with effect from 01/07/2003; and that the appellant short dischargedthe liability - Tax demand with interest and penalties and adjudicated by accepting theclaim of material used and sold in the course of repair and maintenance - Penaltyunder Section 76 of Finance Act, 1994 and Rs.5,000/- under Section 75-A of FinanceAct, 1994, were imposed apart from interest; and amounts paid stood appropriated -Commissioner (Appeals) upheld the demands, now agitated herein.

Held: No case of suppression of facts or contumacious conduct on the part of theappellant is made out - It is admitted fact that the appellant have made suo-motocompliance by applying for registration; paying the taxes; and filing returns; that prior

to issue of Show Cause Notice in Oct 2008, they suo-moto paid the admitted taxes forthe prior period and also submitted the returns - the penalties imposed under Section76 & 75A of the Finance Act, 1994 are therefore set aside - the amount of interest fordelayed payment is retained, directed to be adjusted from the amount of Rs.10,000/-deposited by the appellant-assessee towards penalty under Section 77/70 of theFinance Act, 1994, which was not imposed prior to the passing of the Order-in-Original- The appellant shall deposit the balance interest, if not deposited so far and filecompliance with the Adjudicating Authority within a period of 60 days from the date ofdelivery of copy of this order. [Para 6]


Shiva Ashish Security And Utility Agency Vs CCE, C & ST (Dated: March 10,2017)

Service Tax - 'Security Agency Service' and 'Manpower Recruitment and Supply AgencyServices' - appellant had collected the Service Tax from the respective customers inproviding such services, however, they failed to deposit the same with the Govt –SCN's were issued for recovery of the balance amount and appropriation of the amountpaid, with interest and penalty - Adjudicating authority confirmed the demands and onappeal, Commissioner (A) partly allowed the appeal – Hence, the present appeal.

Held: The plea of the Appellant that due to the accident of the proprietor in 2007-08though they have collected the Service Tax but could not deposit with the Govt.,seems to be bereft of logic as well as common sense - failed to file necessary Returnsnor informed the Dept., about their inability to deposit Service Tax though collectedfrom customers - their explanation that they are innocent and their approach isbonafide cannot be acceptable to a man of ordinary prudence – Hence, the impositionof penalty is absolutely justified - However, confirmation of penalty under Sec. 76 aswell under Sec. 78 in the case of M/s Shiva Ashish Security and Utility AgencyServices, is bad in law, hence, penalty under Sec. 76 cannot be sustained, in view ofthe judgment of the Hon'ble Gujarat High Court in the case of Raval Trading Co – (Para7)


APM Terminals India Pvt Ltd Vs CCE (Dated: March 8, 2017)

ST - BAS - Two demand notices for successive periods cannot presume the existenceof the ingredients mandated for invoking of proviso to section 73(1) of FA, 1994 - Forthis reason, the demand pertaining to the extended period in show cause notice dated16 th October 2012 is set aside as not being in accordance with law: CESTAT [para 3]

ST - BAS - Rule 3 (iii) of Export of Services Rules, 2005 - Client is an overseas entityand appellant is the provider of service - activity is an export and, hence, not taxable -Demands set aside and appeals allowed: CESTAT [para 6, 7, 8]



Samsung India Electronics Pvt Ltd Vs CC, CE & ST (Dated: December 22,2016)

ST - Assessee provides services of repairing, product advertisement, promotionalactivities and development of new customers of GSM mobile phones - Assesseeprovided services of repair and maintenance to receivers located abroad & claimed thatit was export of service - Assessee availed cenvat credit on the basis of invoices issuedby assessee's authorized service centres for providing services after the sales of theirproduct within the warranty period and for which revenue alleged the Cenvat schemedidn't cover under the definition of input service under CCR, 2004 as it had no nexuswith manufacture and clearances of the products - Demand for duty was raised byinvoking the extended period of limitation on assessee and further demanded reversal

of cenvat credit availed by assessee with interest & imposed penalty - Held - Followingthe decision of Blue Star Ltd the services provided by assessee were considered asexport of services and not liable to ST - Further by considering the assessee's owncase vide final order dated 01.11.2016 held that assessee rightly availed the cenvatcredit on the basis of invoices issued by assessee's authorized service centres and noneed was there for extended period of limitation to raise the demand: CESTAT (Para2,4)


Rajasthan State Mines And Minerals Ltd Vs CCE (Dated: January 18, 2017)

ST - Assessee, a mining company owns mines and engaged in selling of minedminerals and had availed certain services from service provider towards raising andextraction of mineral along with other incidental work and paid ST to the serviceprovider - Assessee filed the refund application which was rejected mainly on theground that classification of service has never been disputed by service provider, andas such, assessee has no locus standi as a recipient of service to claim refund on STpaid by service provider - Service provider has never disputed that they have wronglyclassified the service and never filed any refund application before jurisdictional STauthorities - Thus, in absence of dispute regarding classification of service by serviceprovider who has discharged ST liability, assessee in capacity of recipient of servicehas no locus standi to file application claiming refund on a different classification ofservice that on what was paid by service provider - Refund application filed byassessee does not survive both on the ground of merits as well as limitation: CESTAT


Reliance Infrastructure Ltd Vs CC, CE & ST (Dated: March 24, 2017)

ST - Whether assessee is eligible for Cenvat credit on Bills of their Sub-contractors forservice received under CICS wherein they have approved Bill of their Sub-contractorand paid major part of it by retaining 10 per cent of same towards securitydeposits/retention money - So far as issue of taking Cenvat credit is concerned,objection of Revenue is not tenable as there is no ST on material component whichforms part of retention money - There is no dispute that Sub-contractor of assesseehave paid ST - So far as second amount is concerned being Cenvat credit taken ofinput ST on service received for period before 01-03-2006, input ST credit is rightlytaken in view of saving clause contained under Notfn 2/2006-ST - Assessee haveadmittedly reversed said amount of credit much before the issue of SCN andaccordingly no SCN was required to be issued under provisions of Section 73 of FA,1994 - Assessee is entitled to abatement under provisions of Notfn 1/2006-ST -Assessee is entitled to take Cenvat credit - So far as interest is concerned, same is notchargeable - Penalty is also set aside: CESTAT


HCL Infosystems Ltd Vs CC, CE & ST (Dated: April 18, 2017)

Service Tax - Valuation - appellants were engaged in re-sale of licensed informationtechnology software which was originally owned by Microsoft Regional SalesCorporation, Singapore - With effect from 16/05/2008 Information TechnologySoftware Services (ITSS) were subjected to levy of Service Tax, and appellantobtained centralized Registration - There were certain contracts entered into byappellant with the clients where invoices were raised before 16/05/2008 when therewas no levy of Service Tax on said service but the obligation continued even after16/05/2008 - Revenue viewed that in respect of such resale of licenses for providingservices where obligation got crystallized by receipt of consideration before16/05/2008 for rendering of services beyond 16/05/2008, tax was leviable on pro ratabasis for that component of service which was actually rendered after 16/05/2008 -Tax demand with interest and penalty adjudicated, and agitated herein.

Held: The findings of the Tribunal in the Denso Haryana case are squarely applicable tothe present case, where the contracts were crystallized before 16/05/2008 and somepart of the service was rendered after 16/05/2008 through the obligation createdbefore 16/05/2008 - by applying the ratio of decision in the Denso Haryana case,Service Tax was not leviable in respect of the invoices which were issued before16/05/2008 even for that part of the service which was rendered after 16/05/2008where the obligation was created before 16/05/2008 - impugned demands set asidewith consequential relief. [Para 5]


CCE Vs Core Fitness Pvt Ltd (Dated: November 8, 2016)

ST - Invoices were issued and the receipts were duly recorded in the books of accountsthus detracting from the allegation that there was any suppression - Moreover,assessee had been discharging tax liability before and after this short period of non-payment of tax - Respondent was also prompt in making good the defect in not payingthe tax - no case is, therefore, made out for invoking the provisions of section 78 ofFA, 1994 - Consequently, this is a fit case for not issuing a SCN for recovery of tax asprovided for in section 73(3) of Finance Act, 1994 – Revenue appeal dismissed:CESTAT [para 7]

ST – CENVAT - 'Exercise equipment' is utilised as input for rendering taxable serviceand the duty paid on this equipment is permissible as CENVAT credit, irrespective ofwhether it was initially claimed as 'capital goods' – Since credit has been taken inaccordance with the law it cannot be denied as sought by Revenue – no justification fordisallowing this credit and for restoration of penalty as proposed in grounds of appeal –Revenue appeal dismissed: CESTAT [para 8, 9]


Employee Provident Fund Organization Vs CST (Dated: April 13, 2017)

ST – EPFO is a statutory body created for a specified welfare function by an Act ofParliament – They are not providing any taxable service to the employers covered bythe EPMF & MP Act, 1952 – The relationship and transaction between the employersand the appellant is in discharge of statutory and compulsory obligations, coercivelyenforceable by the law - Considerations sought to be taxed are statutorily fixed,mandated fees and charges - No option exists with the appellant or contributor to varysuch ‘Fees' or ‘charges' - employees who ultimately benefit, have not paid anyconsideration to the appellant and they only contributed their part of fund, throughthe employer, to the appellant - in the absence of a service provider and servicerecipient relation between the appellant and the employers, no service tax liability canarise in the transaction - Exemption vide Notification No. 9/2016-ST to EPFO(appellant) has no relevance to decide their tax liability during the present disputedperiod which is under pre-negative list based tax regime – Rs.688 crore demand setaside: CESTAT [para 8, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20]



Dsm Anti-Infectives India Ltd Vs CCE & ST (Dated: April 5, 2017)

ST - Assessee was issued SCN alleging that they had not paid Service Tax on OverseasCommission credited to Overseas Commission Agent (OCA) ledger account and thattransaction between them and OCA was between associated enterprises - Demandconfirmed alongwith interest and penalty - Department could not invoke extendedperiod in present SCN as there were two previous SCNs on same issue dt. 17.08.2007for period 09.07.2004 to 31.03.2006 and dt. 27.09.2007 for the period May, 2006 toMarch, 2007 - Notification pertaining to associated enterprises was issued on10.05.2008 and entire period in present SCN dt. 21.04.2009 is prior to that date - Inthat background, SCN dt. 21.04.2009 could not invoke allegation of associated

enterprises when law at the time did not provide for same and relevant provision wasintroduced on 10.05.2008, without it being made expressly retrospective - PresentSCN is completely barred by time in view of Apex Court ruling in case of Nizam SugarFactory 2006-TIOL-56-SC-CX : CESTAT


D Lingam Vs CCE & ST (Dated: April 13, 2017)

ST - Assessee are contractors engaged in civil contract works for M/s. SISL andexecuted civil contract work for construction of basement for erection of wind tower forSISL - It appeared that assessee had completed the work and received payment fromSISL, however, they had failed to discharge tax liability thereon - Assessee are alreadyfamiliar with ST provisions and as per their own admission has also taken STregistration, though under " Commercial or Industrial Construction Service " in year2006 itself - This being so, they cannot claim to be a neophyte in matters of taxliability - Even if they had any confusion with regard to tax liability for workundertaken by them, they could have very well sought advice from departmentalofficers, which has not appeared to have been done - Therefore, assessee cannot takeshelter under provisions of 73(3) of the Act - Since assesee have paid up entire taxliability along with interest even before issue of SCN, penalty under section 78 of FA,1994, is required to be reduced to 25% of total tax liability: CESTAT


Cenza Technologies Pvt Ltd Vs CST (Dated: March 31, 2017)

Service Tax – Refund under Rule 5 of CCR 2004 - appellant is engaged in providingOnline Information and Database access/retrieval service and Renting of ImmovableProperty services - They had filed refund claims under Rule 5 of the Cenvat CreditRules, 2004 being the unutilized CENVAT credit - a part of export turn over declared bythe appellant has been rejected and the lower export turnover only has been adoptedby the original adjudicating authority interalia on the grounds that export invoicesrelated to FIRCs received beyond the period of one year stipulated for refund claim arehit by limitation; and some of the cenvat credit was held to be ineligible on thegrounds that the said services were not directly used for providing the output service –Denial / rejection of the claim upheld by Commissioner (Appeals) and is agitatedherein.

Held: Impugned credit has been availed after the amendment to rule 2(l) of CenvatCredit Rules, 2004 w.e.f. 1.4.2011, towards internet devices for directors, insurance,club membership and meal pass - there is no evidence put forth by appellants, eitherin the adjudication order or before the lower appellate authority that they are not forthe personal use or consumption of any employee; no necessity for interfering withdenial of cenvat credit in respect of these inputs / input services - Housekeepingservices are very much required for the proper upkeeping of the appellant's premisesand in any case the same is not barred from the exclusion clauses of Rule 2(l) of CCR2004; the appellant is eligible to avail Cenvat Credit [Para 8.2, 8.3]

The original authority has reduced the export turnover in the computation on theprimary ground that the balance amount relates to FIRCs though received in therelevant quarter, however, export invoices thereof have been raised before 21.06.2012and hence are beyond the period of one year stipulated under Section 11B, since claimhas been filed by appellant only on 21.06.2013 – There is merit in the contention thatthe ruling in the case of GTN Engineering related to export of goods and not servicessince in the present case, appellants are a 100% EOU engaged in the export ofBusiness Support Services only – Also, there is a distinction between the definition ofExport Turnover of Goods and that of Export Turnover of Services, in Rule 5 of the CCR2004 - for calculating export turnover of services, while advances received for export

services where provision of service has not been completed during the relevantquarter, will not be taken into account - There is no condition indicated that suchpayment will be related only for services exported during the relevant quarter - Byimplication, there is no bar to inclusion of payment received during the relevant periodfor export of services which have been effected in an earlier quarter - Thus, relevantquarter/period for which refund has been claimed under Rule 5 ibid can very well alsorelate to export of services effected earlier - From a combined reading of the variousportions of the definition of 'export services' in Rule 5 (D), the only requirement is thatboth receipt of payment and provision of export services should have been completedby, or within the quarter for which the claims are being made - if payments had beenreceived earlier and actual export effected only in the relevant period, claim ofcorresponding credit refund can only be made during the relevant period - if anyexport of services has been effected earlier but inward remittances/FIRCs have beenreceived only during the relevant quarter for which claim is made, refund of creditamount corresponding to the payments received can only be made during the relevantquarter - procedure ensuring that not only services are exported but also paymentsthereof are received at the point when the refund claim under Rule 5 ibid is made –Although the provisions of Section 11B of CEA 1944 have been made applicable toservice tax vide Section 83 of the Finance Act, 1994, by the rule of implied exception,the specific provisions of Rule 5 of Cenvat Credit Rules, 2004, will definitely takeprecedence following the maxim Generalia Specialibus non derogant - according towhich when a matter falls under a specific provision, then it must be governed by thatprovision and not by the general provision. [Para 9.4-9.9]

In the case of Bechtel India Pvt. Ltd. Vs CCE Delhi it has been held that in case ofexport services, export is complete only when foreign exchange is received in Indiaand therefore claim filed within one year from the date of receipt of foreign exchangeis not time-barred - Similar view has been taken in the case of Oceans Connect IndiaPvt. Ltd. Vs CCE Pune-II - in the case of export of services as provided by Rule 5 of theCenvat credit Rules itself, inward remittances/FIRCs/payments received either directlyor through legal and accepted channels of remittances including by NEFT, receivedduring a particular quarter even though related to invoices issued or export servicesprovided for the period prior to that quarter, will definitely be included in the exportturnover of services for that quarter [Para 9.10, 9.11, 9.13]


DSM Sugar, Asmoli Vs CCE(Dated: March 23, 2017)

Service Tax - issue in this appeal is whether penalty under section 76, have beenrightly imposed - Penalty imposed on delayed payment.

Held: There is no deliberate default or contumacious conduct on the part of theappellant - the appellant have deposited almost 4 times the actual tax levy with therevenue and such excess amount, remained with the revenue, for substantial timebefore being adjusted in the subsequent return periods - Hence, for a minor failure onpart of appellant in depositing tax, penalty under Section 76 is not leviable - in theCase of Hindustan Steel Ltd. Vs State of Orissa , wherein the Apex Court have heldthat penalty for venial breach of law should not be imposed even if the law provides forimposition of minimum penalty - Appeal allowed - (Para 6).


CCE & ST Vs Engineers Enterprises (Dated: October 7, 2016)

ST - Assessee engaged in providing "Management, Maintenance & Repair Services" -SCN was issued alleging that during period October, 2005 to September, 2010,assessee had misdeclared/suppressed the value of taxable service rendered in theirST-3 returns - Demand confirmed alongwith interest and penalty - Also given an optionto assessee to pay 25% within 30 days of receipt of O-I-O - Being aggarieved, revenueis in appeal - In this appeal, there is no material shown by department as to how theoption given to assessee is erroneous - Commissioner (A) is correct in rejecting theappeal filed by department and there is no reason to deviate from the said order:CESTAT


CCE & ST Vs Jain Caterers (Dated: March 31, 2017)

ST - Assessee engaged in providing taxable service under category of outdoor catering- Proceedings were initiated against assessee for non-payment of ST - Demandconfirmed alongwith penalty, however same is reduced by Commissioner (A) -Commissioner (A) relied on various decisions of Supreme Court - It is noted thatreliance placed on decision in Nizam Sugar Factory 2006-TIOL-56-SC-CX is appropriateand relevant - Material facts, of nature of service rendered by assessee, tax liability onsuch services were all in knowledge of Department - Timely follow up was not done forsubsequent periods and that cannot be the basis for issuing another demand invokingsuppression of fact - Following the ratio laid down by Supreme Court in Nizam SugarFactory , decision of Commissioner (A) on this issue cannot be assailed - Since, thereis no appeal by assessee against the impugned order, no further observation weremade on the correctness of penalty under Section 78 - No merit found in appeal filedby revenue, same is dismissed: CESTAT


CCE & ST Vs V H Patel and Company (Dated: May 5, 2017)

ST - GTA service - Respondent, a partnership firm, is engaged in manufacture oftobacco products and which are transported through M/s Ashok Transport who chargesfreight charges from the consignee of the respondent - on the consignment note,against the amount of freight, M/s Ashok Transport was mentioning the remark ‘to pay'and ‘Service tax is payable by consignee' - although Ashok Transport was registeredwith the department under GTA, no service tax was paid on the freight collected bythem - consignees of the respondent claimed that they do not fall under the specifiedcategory u/r 2(1)(d)(v) of STR, 1994, and, therefore, were not liable to pay ST -demand of ST raised against respondent and confirmed - however, Commissioner (A)set aside the order and so Revenue is in appeal before CESTAT. Held: Plain reading ofthe rule 2(1)(d)(v) of STR, 1994 shows that category (a) to (g) prescribed in the saidrule is only in relation to consignor or consignee of the goods in whose case liabilityarises and has nothing to do with the person who is liable to pay service tax - In otherwords "any person" referred in Rule 2(1)(d)(v) is not qualified by category (a) to (g) ofthe Rules and, therefore, even individual or partnership firm can fall under thecategory of "any person" specified in the said rule - Impugned order is, therefore, setaside and Revenue appeal is allowed: CESTAT [para 6]


Bitwise Solutions Pvt Ltd Vs CST (Dated: May 5, 2017)

ST - Refund - Appellants are a 100% EOU and filed refund claim in respect of the creditwhich they were unable to utilize on account of export of services - Impugned orderdenied credit in respect of certain services like Air Travel Agent service, Manpowersupply/security service, work contract service, insurance services etc. on the groundthat these services are not used for providing the output service - appeal to CESTAT.Held: Instead of testing the eligibility of CENVAT already availed by the appellant forrefund u/r 5 of the CCR, the lower authorities have gone into the question of eligibilityto the CENVAT credit itself - eligibility of CENVAT credit cannot be challenged withoutissue of SCN under the CCR - no SCN has been issued under CCR and it is, therefore,not permissible to deny CENVAT credit already availed - impugned order is, therefore,set aside and matter is remanded to the original adjudicating authority to decide theadmissibility of refund claim solely on the basis of Rule 5 of CCR read with anynotification - If the lower authorities wanted to challenge the admissibility of credit, thesame cannot be done while examining the refund claim of the appellant, withoutfollowing the due process prescribed - Matter remanded: CESTAT [para 4, 5]


Jewelex India Pvt Ltd Vs CST (Dated: November 11, 2016)

ST – Appellant, as 'sight holder' of M/s Diamond Trading Company (DTC) participatesin 'sight sales' through contractually mandated broker M/s I Henning, London – Brokeris paid commission in foreign currency by appellant in accordance with the agreemententered into – such commission has been alleged to be liable to service tax u/s 66A ofthe FA, 1994 – appellant is is also in receipt of 'value added services' covering third-party verification, continuity of supply, intention to offer, consistency of boxes,business sustainability services etc. – invoices are raised by Diamond TradingCompany, value of which, according to Revenue is liable to service tax u/s 66A of FA,1994 – demands confirmed totaling Rs.3,28,77,402/- along with interest and penalty –appeal before CESTAT. Held: Findings of the adjudicating authority are cryptic and donot appear to be based on examination of any aspect in the notice or on thesubmissions made by the noticee – services alleged to have been received by appellantwould need to be tested for determining the liability as alleged by tax authorities andconfirmed in the impugned order – there has been no such determination of the natureof service and the coverage of the transaction between the overseas entities and theappellant within the framework of the rules – to this extent, order is not sustainable inlaw – matter remanded to original authority for reconsideration: CESTAT [para 8 to 11]


Phoenix Mills Ltd Vs CST (Dated: May 19, 2017)

ST - Dispute is in the matter of taxability of consideration received by appellant fromthe lessees of space in their building towards amenities/service charges, businesscentre charge, dish antenna charges and promotional and marketing charge -Appellant paying tax w.e.f 01.06.2007 as provider of 'Renting of immovable propertyservice' but not for the prior period 1 st May 2006 to 31 st May 2007 which period thetax authorities assert the appellant was required to pay tax as provider of 'BusinessSupport service' - demand confirmed, hence appeal to CESTAT. Held: Having acceptedthe taxability for providing a specific service, it is not open to the tax authorities toclaim its share in the form of a levy under a different head merely because 'renting ofimmovable property service' was not taxable prior to 01.06.2007 - moreover, havingaccepted tax on the consideration received by appellant from the lessees for providing'renting of immovable property service', the tax authority has abdicated its claim to taxthe consideration under another head - there is no allegation of short payment of taxfor the period after introduction of the new taxable service - therefore, the submissionof the appellant that the entire consideration has been taken into account for dischargeof tax liability is tenable and correct - adjudicating authority is oblivious of the natureof service tax during the relevant period - impugned order set aside and appealallowed: CESTAT [para 5, 6, 7, 10]


Radius Water Ltd Vs CCE & ST (Dated: January 23, 2017)

ST - Assessee engaged in supply of water to M/s. Chhattisgarh State IndustrialDevelopment Corporation (CSIDC) in terms of agreement entered into with erstwhileM.P. State Industrial Development Corporation in 1998 - Revenue entertained a viewthat arrangement between assessee and CSIDC, for such supply of water will becovered for ST purpose under category of "Support Services of Business or Commerce"under Section 65(105) (zzzq) of FA, 1994 r/w Section 65 (104) (c) - Whole scope ofagreement is for supply of water by assessee to CSIDC on a fixed tariff - CSIDC,thereafter supplied water to various industrial units is of no consequence for saidarrangement as far as assessee is concerned - In such situation, giving colour ofservice to pure sale of water is not legally tenable - The water supplied was paid for byCSIDC and the water tax on the same was also paid by them as a consumer of saidwater - Activities falling under scope of the agreement 1998, for consideration on saleof water, cannot be taxed under category of "support of services of business orCommerce": CESTAT


KK Steel Enterprises Vs CC, CE & ST (Dated: January 11, 2017)

ST - Asssessee is registered with ST Department under category of GTA Service - Theyprocure materials from various manufacturers and traders and they are paying freighton goods procured by them - They paid ST on freights collected and filed ST-3 returnsup to September, 2006, however stopped filing ST-3 returns from October, 2006 -Demand confirmed alongwith interest and penalty - During relevant period there wasconfusion in field as well as in industry/trade with regard to liability to discharge ST incase of transportation services - Considering that assessee has paid major portion ofST along with interest prior to issuance of SCN immediately on being pointed out byDepartment, penalties imposed are unwarranted as per provisions contained in sub-Section 3 of Section 73 of FA, 1944: CESTAT


Ex Maharani Mahendra Kumari Vs CCE & ST (Dated: April 25, 2017)

ST - Appellants entered into a contract with Indian Hotel Company Ltd. [IHCL] whichallowed IHCL to use their premises for running hotel business - appellants receivedconsideration in the form of percentage of gross income + gross operational profit orminimum guaranteed profit - revenue of the view that appellant provided taxableservices under the category of “Renting of immovable property services" - demand ofST confirmed, hence appeal to CESTAT.

HELD - Appellants claim exclusion under the category of buildings used for the purposeof accommodation including hotels [section 65(105)(zzzz) of the Finance Act, 1994] -admittedly, the building and the land as appurtenant thereto are used for the purposeof running the hotel -the term "hotel" is not defined in the Finance Act, 1994 -asgenerally understood, a hotel is for temporary accommodation of people paying fortheir rooms and meal -many hotels will have various other incidental facilities relatingto entertainment, personal care, etc. - the presence of these facilities does not excludethe building from the category of " hotel " - a similar issue came up for decision beforethe Tribunal in the case of Jai Mahal Hotel Pvt. Ltd. wherein the Tribunal observed thatbuildings used for or as hotels do not amount to immovable property - similar ratio hasbeen followed in the case of Lake Palace Hotel and Motels Pvt. Ltd - 2016-TIOL-2140-CESTAT-DELHI - impugned order is not sustainable - accordingly, same is set asideand appeal is allowed : CESTAT [para 6, 7, 8]


G Tech Computer Education Centre Vs CCE, C & ST (Dated: April 7, 2017)

ST - Assessee is a Proprietor/Director of G-Tech Computer Education Centres situatedat Kakkattil and Kallachi - When Commissioner (A) vide his order has held thatassessee is entitled to pay interest for normal period and set aside the tax liabilitybeyond normal period by setting aside the invocation of extended period of limitation -The Commissioner (A) has also set aside the penalty under Section 77 & 78 also - Saidorder was not challenged by Revenue and same has become final and assessee inpursuance of order of Commissioner (A) filed a refund application which was rejectedby original authority and appeal of assessee before Commissioner (A) has also beenrejected - Rejection of refund merely on the ground that assessee has voluntarily paidtax is not legally correct - Impugned orders denying refund in both appeals is notjustified and correct and therefore impugned order is set aside: CESTAT


Piyush Enterprises Ltd Vs CC & CE (Dated: March 3, 2017)

ST - Assessee engaged in providing outdoor catering services - Assessee sought refundof ST which was mistakenly collected by assessee's from educational institution byproviding them outdoor catering services which revenue denied due to unjustenrichment and also refund sought by assessee was barred by the limitation -Held- It

was proved on record with corroborative evidences that outdoor catering service wasnot a taxable service when provided to the educational institutions whereas assessee'scollected ST by mistake from the educational institutes and paid it to the governmenttherefore by considering the cases such as K.V.R. Constructions, Natraj and VenkatAsociates, Geojit BNP Paribas Financial Services Limited and U.Foam Pvt. Ltd the law oflimitation was not applicable to the amount paid under mistake for the reason thatsuch amount did not have the colour of tax/duty - Since, the ST which was collected bythe assessee's from the educational institutes by mistake was returned to them and itwas coroborated by the bank statement along with copy of the cheque and CharteredAccountant certificate therefore denial of the refund of ST due to unjust enrichmentwas not justified: CESTAT (Para 2,4,7)


CCE Vs Madhya Pradesh Flying Club Ltd (Dated: March 3, 2017)

ST - Assessee was imparting training programme at Indore and Bhopal with objectiveof promoting, advancement and diffusion of knowledge in field of navigation,operational procedure and flying of aeroplane and they have been approved by DGCAfor conducting such training programs - Department is of the view that such servicewould fall under category of 'Commercial coaching service' and demand the ServiceTax - Identical issue came up before the Tribuanl in assessee's own case for the earlierperiod and decided in their favour - By following the ratio laid down by Tribuna, noreason found to interfere with impugned order: CESTAT


Rambal Ltd Vs CST (Dated: February 21, 2017)

ST - Assessee was recipient of man-power services - Same service has suffered taxtwice through two modalities; once, tax was paid by service provider and later byservice recipient - State has been doubly benefitted - It is established principle of lawthat any amount not due to State is not collectible as has been held in Tata Iron andSteel Co. Ltd. 2003-TIOL-94-SC-CUS - Therefore, to resolve the dispute and alsotaking into consideration no objection of service provider as has been recorded in SCN,it is directed that assessee should be refunded of amount paid by service provider toassessee - Since there is double payment and the liability was of assessee, theassessee should not be denied Cenvat credit: CESTAT


Pr.CST Vs Rambus Chip Technologies India Pvt Ltd (Dated: April 12, 2017)

ST - Assessee filed refund claim of unutilized cenvat credit of ST paid by them underRule 5 of CCR, 2004 r/w Notfn 5/2006 CE (NT) on input services said to have beenused by them for export of "Information Technology Software Services - Adjudicatingauthority sanctioned the refund partially and rejected the remaining amount - Revenuehas filed the appeal aggrieved by O-I-A to the extent of allowing refund on LifeInsurance Service - There is nothing wrong in impugned order passed byCommissioner wherein he has held the General Insurance Service as an 'input service'- There is no infirmity in impugned order as far as this input service is concerned:CESTAT


Krishi Upaj Mandi Samiti Vs CCE & ST (Dated: May 25, 2017)

ST - No support for the assertion that renting out of shop/land is amandatory/sovereign function carried out by the appellant - allotment fee collected isliable to tax - in view of clear saving provision contained in Notification no. 20/2012-STdated 5.6.2012, no infirmity in the demands raised after 1.7.2012 for periods prior to

that date - invoking old provisions of Act for period post 01.07.2012 is not fatal to theproceedings initiated by the SCN - appellants are a Government Organisation - noevidence of the appellants' malafide act to evade service tax liability - demand upheldonly for the normal period, penalties set aside - threshold exemption available to thesmall-scale service provider to be extended - appeals disposed of: CESTAT [para 9 to17]



Micromatic Grinding Technologies Vs CCE (Dated: April 18, 2017)

ST - Assessee were marketing the goods of its foreign clients in India and wasreceiving commission on same - They were also providing after sales service to theirforeign clients and they have paid ST on after sale service - Dispute is regardingliability of ST on commission so received for obtaining orders for foreign clients - SCNmakes a reference to assessee's letter but it utilized selected information given thereinfor framing of charges against assessee and chose to ignore certain part submittedtherein - Assessee submitted through said letter that they were providing service toforeign clients and their activity amounted to export of service - Such aspect was notexamined and said SCN was issued wherein nowhere it was established thatcommission received was in INR - Said SCN not sustainable: CESTAT


CST Vs Vs LR Sharma And Company (Dated: February 8, 2017)

ST - Appeal filed by Revenue is against the order dated 24/04/2012 - The order isrelating to ST liability of M/s L.R. Sharma & Co., a partnership firm - The demand wasdropped by Original Authority - Revenue filed appeal stating that order is legally notcorrect - In the title of appeal, assessee name is mentioned as " M/s LR. Sharma " -The full title of M/s L.R. Sharma & Co. is not mentioned - On this ground alone, wantsthe appeal to be held as non-maintainable - The title of appeal mentions " M/s L.R.Sharma " - There is no reason to hold the appeal as non-maintainable on this ground -Assessee's details like address etc. has been correctly mentioned in appeal - Meritfound in prayer made for early listing and hearing of the case - Accordingly, Registry isdirected to list the matter at the earliest for final disposal: CESTAT


TVS Motor Company Ltd Vs CCE & ST (Dated: April 24, 2017)

ST – Notfn. 17/2009-ST – Refund - Appellants under obligation to supply parts underfree warranty replacement - no monetary consideration flows from the buyer and,therefore, the department's view that bank realization certificate has not beenproduced is not justified ground for denial of refund – Moreover, Export proceeds havealready been received when the main product was exported - Recover of erroneouslysanctioned refund by parallel proceedings by issue of show-cause notice is notpermitted under law – Impugned orders set aside and appeals allowed withconsequential relief: CESTAT [para 4]



Tirupati Fibres Industries Ltd Vs CCE (Dated: December 6, 2016)

Service Tax – Renting of immovable property - the Commissioner (Appeals) has takennote of the contents in the contract and thereafter, arrived at the conclusion that theservices provided as per the contract fall under the taxable category of "renting ofimmovable property " , on which service tax is leviable. Thus, so far as the merits ofthe case are concerned, no infirmity in the impugned order passed by the

Commissioner (Appeals). However, considering the peculiar facts and circumstances ofthe case and in view of the fact that there were divergent views with regard to theleviability of the service tax on renting of immovable property, the benefit of Section80 ibid can be extended in this case for non-imposition of penalty under Sections 76,77 and 78 of the Finance Act. (para 6)


Panzer Division Security and Allied Services Vs CCE & ST (Dated: March 6,2017)

Service Tax - Demand - appellant was engaged in providing 'security service' and'manpower recruitment and supply service' but did not discharge appropriate tax asobserved during a departmental intervention, when records were verified andstatements of individuals recorded; difference between financials and ST3 detected andtax demands proposed in SCN; same confirmed with interest and penalty inadjudication, and agitated herein.

Held: Revenue failed to investigate as to the taxable nature of the cash receipts and/orcontra transactions in the bank accounts - It is admitted fact that the appellant havefive bank accounts during the relevant period; various amounts are by way of contraentries, like cancellation of cheques, reversal of salary, receiving of fixed deposits onmaturity in the bank accounts, deposit against sale of property, deposit of loansanctioned by the bank etc. interbank transactions in the bank account which arecontra in nature, interbank cash transaction that is withdrawal of money from oneaccount from different bank, the amount remaining unutilised money deposited indifferent account with a different bank etc. - the books of accounts maintained by theappellant and the audited financial statements produced before the authority belowhave not been rejected; and the explanation(s) given at the time of investigations andaverments made in reply to show cause notice, were not found untrue - the demandraised is vague, having no proper basis; hence the show cause notice is untenable -impugned order set aside, with further directions that the appellant will be entitled tobenefit of Cenvat credit properly accounted for in their books of accounts and dulyclaimed in the returns, and will be further entitled to credit of any Challan which wasnot received earlier, particularly the Challan which has been stated to be paid duringinvestigation. [Para 7]


Tata Cummins Ltd Vs CCE & ST (Dated: March 20, 2017)

ST - Assessee engaged in manufacture of 'Internal Combustion Engines' and paid STon different services by way of adjustment of amount paid in excess as ST onfranchisee service and paid interest on delayed payment of ST by way of adjustment -Commissioner (A) had not considered any submission of assessee raised before him -It is not clear as to how the Commissioner (A) advised the assessee to file Refundclaim - So, matter is required to be examined by Commissioner (A) in depth: CESTAT


Alluglaze Vs CCE (Dated: May 26, 2017)

ST – Appellant is carrying out two different activities, one is manufacture of Aluminiumdoors and windows and and the other is construction services - both have to be dealtwith separately for all the purposes – because appellant claimed benefit of notfn.1/2006-ST, CENVAT credit cannot be denied on inputs used for manufacture of doorsand windows – Even if there is violation in respect of construction service, the Cenvatcredit which relates to manufacturing activity cannot be disputed – Appeal allowed:CESTAT [para 4]



Fluent India Pvt Ltd Vs CCE (Dated: May 30, 2017)

ST – Royalty paid by the appellant to their holding company in USA towards the receiptand use of software does not fall under the ‘Intellectual Property Service' – appellant ismerely distributing, marketing and supporting set of computer programme knows as FIsoftware - There is absolutely no indication of any transfer of intellectual property righton a plain reading of the Agreement - Neither has Tribunal found any hidden or deepermeaning in the Agreement which would indicate transfer of intellectual property right -impugned order confirming service tax demand set aside and appeal allowed: CESTAT[para 4]



Bharat Sanchar Nigam Ltd Vs CCE (Dated: May 16, 2017)

ST – Appellants are engaged in providing telecommunication service - demand ofcenvat credit of Rs.12.99 crores from the appellant on the ground that they havecleared the capital goods as such and did not bring back the same within 180 daysthus violating rule 3(5) of CCR, 2004 – recovery ordered, equivalent amount of penaltyimposed – appeal to CESTAT:

HELD – Recovery now sought to be made is on the presumption that all capital goodshave been received to a registered premises and thereafter were cleared ‘as such' tovarious other unregistered premises - in the absence of any allegation of diversion ofcapital goods for other than intended purpose or their clearance to third party, theRevenue is not justified in denying credit on such capital goods which are admittedlyinstalled and utilized for providing taxable output service - considering the nature ofoutput service provided by the appellant, all over the State of Rajasthan, it is notcorrect to presume that the credit availed capital goods should be installed/available ina single registered premises - the appellants are paying ST on services rendered fromvarious premises using these capital goods - such payment of ST is being accepted byRevenue - for providing such output service the capital goods on which credit has beenavailed were used - no justification found to demand and recover the credit availed bythe appellant on such capital goods – the Tribunal in appellant's own case in similar setof facts held that credit cannot be recovered as there is no violation of provisions ofrule 3(5) of CCR – impugned order set aside, appeal allowed : CESTAT [para 4, 5]


Arcgate Vs CCE (Dated: May 16, 2017)

ST -Appellants availed services of foreign agent for which they had paid commission -appellants discharged full ST liability under reverse charge basis and relating to theperiod November 2006 to September 2009 on 25.11.2009 - SCN issued - ST paidappropriated, equivalent amount of penalty imposed :

HELD -As long as full ST liability with interest is discharged by the assessee and theingredients of section 73 (4) of the Finance Act, 1994 could not be brought out withsupporting evidence, the case has to be closed under section 73 (3) of the FA, 1994 -such closure is not barred only by the reason that the demand pertains to longerperiod -when the assessee admits the liability, irrespective of the duration, and paysthe same with interest, the case has to be closed - no justifiable reasons recorded bythe lower authorities for non-closure of case under section 73 (3)of FA, 1994 -taxliability of appellant with interest upheld - penalty imposed based on the proceedingsinitiated is not justifiable -accordingly, the same is set aside - appeal is allowed to thatextent only : CESTAT [para 4]


Airport Authority Of India Ltd Vs CCE & ST (Dated: May 24, 2017)

ST – Adjudicating Authority has considered the date of paymentto be the relevant datefor computation of ST - since leviability of ST is related to the provision of service, it isrequired to be ascertained when exactly the services were received by the appellant -this particular aspect has not been specifically addressed to by the adjudicatingauthority – impugned order set aside, appeal allowed by way of remand to theadjudicating authority for ascertaining the period of receipt of service by the appellantand thereafter to decide the ST liability : CESTAT [para 6, 7]


CCE Vs Godawari Power And Ispat Ltd (Dated: April 27, 2017)

ST - Assessee engaged in manufacturing of iron and steel products - Revenue startedproceedings against assessee demanding ST not paid on External CommercialBorrowings (ECB) under category of Banking and Financial Service, falling underSection 65(105)(zm) of FA, 1994 - Same was deposited with interest - Penaltyimposed under Section 76 by O-I-O was dropped by Appellate authority - Therefore,department is in appeal before Tribunal - Period involved is 2006-2007 to 2008-2009 -Thus, period involves duration both prior to 10.5.2008 and after 10.5.2008 -Therefore, penalty is liable to be imposed for offence pertaining to period prior to10.5.2008 under both the sections i.e. Section 76 and 78 of FA, 1993 - But for theperiod after 10.5.2008, no penalty under Section 76 can be imposed as alreadypenalty under Section 78 has been imposed - Matter is remanded to originaladjudicating authority to decide the quantum of penalty under Sections 76 and 78 forcontraventions pertaining to period prior to 10.5.2008 as well as for contraventionspertaining to period after 10.5.2008: CESTAT


Haldor Topsoe India Pvt Ltd Vs CST (Dated: March 22, 2017)

ST - Assessee in terms of agreement with foreign company, were engaged in providingvarious consulting engineering services to foreign company in connection with theirlicensed units in India - They also availed credits on various input services in terms ofCCR, 2004 - As they could not utilize the credit they have filed rebate claims in termsof Rule 5 of Export of Services Rules, 2005 - Present dispute is relating to theireligibility for such claims - Following the principles already laid down in various decidedcases, assessee were engaged in providing services, which are exported out of country- Assessee's eligibility to refund claim under Rule 5 r/w Notfn 12/2005- ST has to beexamined - Assessee submitted that they have all the supporting evidences regardingpayment of ST on various eligible input services, receipt of foreign exchange fromservice recipient and due discharge of tax on various output services - He submittedthat they will establish with supporting evidence their eligibility to the claim for refund- Matter remanded to original authority for examination of claims afresh: CESTAT


CST Vs Air Charter Services Pvt Ltd (Dated: May 25, 2017)

ST – Income from dividend, interest, income tax refund etc. cannot be part of theconsideration for rendering of service under Supply of tangible goods - fact that AA hastaken the support of Chartered Accountant certificate for verification of the figurescannot by itself be taken as a ground for holding that the impugned order is incorrector bad - Tax already paid under a wrong category can always be considered towardsthe liability under the new category - during the course of investigation, assesseerespondent were convinced and they have discharged the entire service tax liabilityalong with interest – demand for service tax in this case has arisen for the periodsimmediately after the introduction of this service when the activities covered underthese services were being debated and settled by various judicial forums - fit case forinvoking section 80 of FA, 1994 and waiving of penalties – impugned order upheld andRevenue appeal rejected: CESTAT [para 8 to 11, 13, 14]



Fifth Estate Communications Vs CST (Dated: March 6, 2017)

ST - Assessee says that extent of value of service provided by assessee is only liable toST in its hand without making assessee liable to ST on whole of advertising charge -Assessee was not advertiser - Value of service provided by assessee is taxable in itshand under appropriate taxing entry specified in section 65 (105) of FA, 1996 - Allother issues are involved in appeal which needs resolution - Adjudicating authorityshall consider all controversies arising out of SCN during readjudication and grantingfair opportunity of hearing to assessee on all such issues shall record defence pleasand evidence and pass appropriate order: CESTAT


LMP Precision Engineering Company Pvt Ltd Vs CCE & ST (Dated: April 7,2017)

ST - Assessee engaged in purchasing and supplying spares - Assessee challenged theorder of Commr. wherein assessee was involved in purchasing and supplying spares totheir clients and revenue considered services provided by the assessee was classifiedas 'BAU' such as procurement of goods or services which were inputs for their clientsand was liable to ST - Demand for duty was raised on assessee -Held- Assessee hadentered into various contracts wherein assessee undertaken guarantee to supplyspares for life time however there was doubt regarding the element of service involvedin this type of transaction - Since these types of contracts created obligation onassessee to provide services for life time so matter remanded back to the authority todecide by finding out the benefits available to assessee in the lights of Notfn. No.12/2003-ST - Now wherein assessee supplied spares without under taken guaranteefor life time supply such supply of goods was considered as pure sale transaction anddemand of ST as per the provision in the Notfn No. 12/2003-ST was held unjustified :CESTAT (Para 2,5,6)


Central Bank of India Vs CCE, C & ST (Dated: March 28, 2017)

ST - Assessee is registered under ST under banking and other financial servicesand is discharging tax under said category since its registration - Scrutiny of Profitand Loss Account was carried out by Department for period 2005-06 to 2009-10wherein it was alleged that assessee has short-paid the ST in contravention ofSection 68 of FA, 1994 - Demand confirmed alongwith interest and penalty -There is no suppression of facts on the part of assessee which attracts Section 78of FA - Assessee being a Public Sector undertaking, a Nationalized bank is subjectto rules and regulations and audit as prescribed by RBI - There was somecomputation error on account of discrepancies between profit and loss account andST-3 returns, but same was clarified by Bank and thereafter assessee also admittedcalculation mistakes and reversed the same with interest - Impugned order setaside: CESTAT


Casyon Technologies Solutions Vs CCE (Dated: January 12, 2017)

ST - Assessee had entered into the agreement with Madhya Pradesh ConsultancyOrganization Ltd., Bhopal, (MPCON) for joint collaboration of IT and computerimplementation and management projects for Rajya Shiksha Kendra, Bhopal -Such services provided by assessee fall under taxable category of ConsultingEngineer Service - For providing such taxable service, assessee had received anamount from MPCON as advance, but did not discharge ST liability as assesseeduring the material time, was not registered with ST Department - Since theamount of ST claimed by assessee was deposited by MPCON into CentralGovernment account as per the policy adopted by them, ST cannot further beclaimed from assessee - Thus, no malafides can be attributed to assessee,justifying imposition of penalty - Assessee is liable to pay interest on delayedpayment of ST: CESTAT


CCE Vs Thomas Cook India Ltd (Dated: May 26, 2017)

ST - Purchase of foreign exchange by the respondent is on their own account andnot on behalf of the customer to whom it is ultimately transferred - To this extent,the respondent holds the title to the foreign exchange - Hence, this activity cannotbe brought within the nature of ‘foreign exchange broking' - It is more in thenature of ‘money changer' who purchases foreign exchange and sells the same atprevailing rates - liable to service tax only from 16.05.2008 - Impugned orderupheld and Revenue appeal rejected: CESTAT [para 13, 15]



H M Satyanarayan Vs CCE & C (Dated: April 4, 2017)

ST – Whether the services rendered by appellant of “laying optical fibre' cablesfor various telephone companies was covered under ‘erection, commissioning andinstallation services' in respect of which they were paying service tax while SCNwas issued seeking ST recovery under the category of ‘Commercial or industrialconstruction service'. Held: There is no dispute as to the fact that appellants werelaying underground cables for various telephone companies – An identical issuehas been decided in appellant's own case wherein Tribunal set aside the ordercontested therein by relying upon the judgment of the Tribunal in the case ofSurindra Engineering Company Ltd 2014-TIOL-2007-CESTAT-MUM - CircularNo. 123/5/2010-TRU dated 24/05/2010 categorically records laying of cables doesnot amount to any taxable service – impugned order set aside and appeal allowed:CESTAT [para 4, 5]


Bharat Aluminium Company Ltd Vs CCE (Dated: April 7, 2017)

ST - Assessee engaged in manufacture of excisable goods like Aluminum metal -In terms of agreement with GAMI, a Chinese Institute, assessee is to receive

technology transfer and engineering services with reference to aluminum smelterand anode plant of assessee - Dispute is only with reference to supply ofengineering design, drawing and documents given by GAMI and imported byassessee - Importation had been done by assessee and not by GAMI, whoprovided Engineering Consultancy Service to assessee in terms of contract -Whatever fee is charged by GAMI for providing engineering consultancy in Indiahas been subjected to ST and there is no dispute on that ground - Supreme Courtin Associated Cement Companies- 2002-TIOL-08-SC-CUS-LB held that drawingand designs are tangible movable articles and they are liable to be treated as goodsunder provisions of Customs Act, 1962, irrespective of what articles may be ormay contain - Designs and drawings which were imported and assessed as"goods", cannot be subjected to ST, hence, no ST is chargeable on that part ofcontract: CESTAT


Dr Reddy's Laboratories Ltd Vs CC, CCE, ST (Dated: April 20, 2017)

ST - Assessee filed refund claims with adjudicating authority on the ground thatthey are not supposed to pay ST to service provider and as per Notfn 9/2009-ST asamended by Notfn 17/2001-ST, a SEZ developer is also eligible to file claim forrefund of ST paid - Sane were rejected stating that there is no justifiable reasonput forth by assessee for filing refund claims belatedly - In M/s JubilantInfrastructure Ltd. , and M/s Intas Pharma Ltd. , as also in case of M/s SuzlonWind International Ltd., 2016-TIOL-2027-CESTAT-BANG this Tribunal hadtaken a specific view as to how the refund application for ST paid by SEZunit/SEZ developer has to be entertained by lower authorities, after givingdirections, matters were remanded back to adjudicating authority - Following thesame, matter remanded: CESTAT


M P Power Generating Company Pvt Ltd Vs CCE (Dated: April 7, 2017)

ST - Assessee engaged in power generation and distribution in state of MadhyaPradesh - Issue relates to their ST liabilities in respect of certain considerationreceived for residential quarters given out on rent to various contractors, whoexecuted the work for assessee - Revenue contends that employees of contractorsstaying in such accommodation will help in furtherance of business or commerceof assessee as well as contractors - It is to be considered whether the employees ofthe contractors using the property for residential accommodation and attending tothe contract work can be considered as usage of property in course or furtheranceof business or commerce - Actual usage of property for a particular purpose willdecide the nature, either 'residential' or used in 'furtherance of commerce orbusiness' - Nature of contracting parties or occupation of occupant has norelevance to decide the scope of tax entry - Impugned order set aside: CESTAT


Air India Charters Ltd Vs CST (Dated: April 17, 2017)

ST – Maintenance and Repair Service - Fund appears to be a mere accumulationof amounts as a security to be utilised if the appellant were to default in itscontractual undertaking to maintain the aircraft according to prescribed standards -There is not a whit of evidence that the lessor has, at any stage, undertaken repairsof the aircraft - To hold contributions to be a consideration for taxable servicewould not be in conformity with the definition of the taxable service - In theabsence of any evidence that the payments have been made as quid pro quo formaintenance and repair of aircraft, the contributions cannot be subject to tax - it isfar-fetched to consider a paymaster to be a provider of any service – Demand setaside & appeal allowed to this extent: CESTAT [para 6, 7]

ST – Banking and Other Financial services - Tax liability is sought to be fastenedon payments made in connection with acquisition of aircraft by availing loansfrom financial institutions outside the country – A mere linking of the varioussegments of section 66A of Finance Act, 1994 and the payment made by aremotely connected overseas entity which has entered into a distinct agreementwith other overseas entities would not suffice to justify the levy of tax on reversecharge - Perfunctory disposal of the SCN – Matter remanded to adjudicatingauthority – plea of bar of limitation to be also looked into: CESTAT [para 11, 12,13, 15]



Pala Marketing Co-Operative Society Ltd Vs CCE, C & ST (Dated: January 31,2017)

ST - Assessee, a society registered under Kerala Co-operative Societies Act, 1969engaged in production and marketing of crumb rubber and other forms of naturalrubber - Assessee entered into a Joint Venture agreement with M/s. GIT accordingto which assessee was to retain 75% of the consideration, whereas GIT would beentitled to the balance 25% - Demand confirmed on assesesee under heading BAS- Considering the material on record including Notfn 4/2004, 13/2003 and Notfn3/2014 issued by GOI recently, assessee are not at all liable to pay ST because asper the agreement, service has already been taxed and ST has already been paid byco-venturer and it would amount to taxing the same transaction more than onceunder different categories which is not the spirit of law: CESTAT


Sangam India Ltd Vs CCE & ST (Dated: March 30, 2017)

Service Tax – Services provided under club or association services to itsemployees – Revenue raised demand for Service Tax for the club activities –Hence, the present appeal.

Held: The identical issue has come up before the Hon'ble High Court of Jharkhandvide writ Petition No. 2388 of 2007 dated 15.3.2012 and it was observed that “Thequestion which was considered by the Hon'ble Supreme Court in the case of JointCommercial Tax Officer, Harbour Division-II, Madras Vs. The Young Men's

Indian Association reported in 1970(1) SCC 462 = 2002-TIOL-448-SC-CUS-LBwas that whether the supply of various preparations by each club to its membersinvolve a transaction of sale within the meaning of Sales of Goods Act, 1930 andit was held that if there is no transfer of property from one to another there is nosale which would be exigible to tax - If the club even though a distinct legal entityis only acting as an agent for its members in matter of supply of variouspreparation to them no sale would be involved as the element of transfer would becompletely absent” – Hence, the appeal is allowed – (Para 4)


MPS Ltd Vs CST (Dated: March 30, 2017)

ST - Assessee registered with ST department under head Business Support Serviceand filed various claims for refund of CENVAT credit under Notfn 5/2006-CE(NT) - Same were rejected as time barred - Following CESTAT decision incase of Hyundai Motor Engineering , assessee is entitled to refund claims,wherever they have filed the claim within the period of one year from the date ofreceipt of consideration in convertible foreign exchange - The fact that whetherthe assessee filed refund claims within the period of one year from date of receiptof consideration is to be examined by original adjudicating authority: CESTAT


CST Vs Star Estate Management Ltd (Dated: March 8, 2017)

Service Tax – Demand of Service Tax on parking charges set aside by theCommissioner (A) on the ground of time bar – Revenue in appeal against thesame.

Held: the Commissioner (Appeals) has erred in recording the reason for time bar.He held the demand as time barred only on the ground that the show cause noticewas issued after 1½ years of audit. There is no legal basis for such conclusion.The relevant date under Section 73 (1) of the Finance Act, 1994 is with referenceto the date of filing return etc. The normal period or extended period is determinedbased on the provisions contained therein. If the ingredients for invoking demandfor extended period are available, then such demand can be raised for 5 yearperiod. The date of knowledge of the Department is not relevant in such situation– Impugned order is set aside and the matter remanded for fresh decision onmerits as well as on limitation. (para 4)


CCE Vs Viraj Estates Pvt Ltd (Dated: March 31, 2017)

ST - Respondent purchased land and TDR and sold the same for a profit -activities would not fall under the category of ‘real estate agent' or ‘real estateconsultant' services - Revenue appeal rejected: CESTAT [para 5.1, 5.2, 6]



Pravin S Patel Vs CCE, C & ST (Dated: March 10, 2017)

ST - Assessee's appeal was dismissed by Commr.(A) allegedly for a delay of 27days in filing appeal - Considering the facts & circumstances put on record, the27-day delay was on account of the assessee being a proprietorship, apart fromconfusion w.r.t the procedure for appealing before the Commr.(A) at that time -Assessee's claims hold weight, thereby matter remanded to Commr.(A) for freshdecision: CESTAT (Para 2)


Ramzan Beg Contractor Vs CCE & ST (Dated: April 10, 2017)

ST - Assessee were working as sub-contractors of M/s Macmet India Ltd. inconnection with work order for structural fabrication and erection work ofconveyor system at ACC, Cement Works - Dispute is relating to ST liability forwork carried out by them as a subcontractor with main contractor in connectionwith above mentioned work - Assessee have produced supporting evidenceincluding detailed certificate issued by main contractor, stating yearwise ST paidon work executed by assessee for the main contractor - There are other evidencesalready submitted by assessee during course of investigation - Matter is remandedback to Original Authority for re-verification of ST payments made by maincontractor and in case ST liability has been clearly discharged by main contractorfor whole contract and assessee's liability as a sub-contractor is part and parcel ofthat main contract then ST liability again cannot be put on assessee - In case, suchevidences are not categorically forthcoming, question of application of time limitfor demand, if any, has to be considered in view of bonafide understanding duringthat time regarding non-liability of sub-contractor for ST in case the maincontractor discharged full tax liability: CESTAT


XL Laboratories Pvt Ltd Vs CCE (Dated: October 24, 2016)

Service Tax – Business Exhibition service - the appellant participated in the tradefair by way of space booking for stalls in various exhibitions organized inVietnam - Revenue viewed the same taxable at the appellant's hands under reversecharge and the original authority adjudicated tax demand with interest and penalty– Commissioner (Appeals) granted part-relief, culminating in the instant appeal onthe portion confirmed.

Held: The service provider in this case is located abroad and the service has beenperformed in Vietnam in connection with the appellant's participation in the tradefair / exhibitions in that country - the service is taxable under the provisions ofSection 65 (105) (zzo) of the Finance Act, 1994 read with Rule 3 (ii) of theTaxation of Services (Provided from Outside India and Received in India) Rules,2006 – The impugned service shall be treated as received in India only if suchservices have been performed in India, which has not occurred in the instant case -the same cannot be treated as received in India by the appellant assessee and noliability arises Section 66A of Finance Act, 1994, in terms of the Tribunal ruling

in the case of Positive Packaging Industries Ltd., squarely applicable to the instantcase – impugned order set aside. [Para 4, 5]


United Cargo Transport Services Vs CCE (Dated: March 7, 2017)

ST - Assessee explains that it was transporter of goods of various concerns underrate contract basis i.e. either on unit rate of weight or distance expressed in kgs orkilometers - They contends that goods carried in its transports were subjected tounit rate charge - While this is the contract between parties, department'sallegation is that assessee was a cargo handler and provided cargo handlingservice - There was no enquiry or examination of activity carried out by assesseedone at recipient's end - Unit rate was fixed by assessee to be charged fromrecipient of services - Without any objective examination done by Revenue toshow that activity carried out by assessee was for packing, unpacking as well asloading and unloading, it cannot be presumed that assessee had provided CargoHandling Service: CESTAT


Hari Narain Khandelwal Vs CCE & ST (Dated: May 16, 2017)

ST - Construction of Residential complex service - Various residential units builtindependently but sharing roads, streetlights, sewerage line, park in closeproximity do not by themselves come under the taxable category of residentialcomplex - Common area and common shared facilities should be with reference tothe approved layout of a particular location and the residential units should belocated in such approved layout - Sharing facilities provided by local Authoritiesavailable to all residential units by way of road, streetlights, park, water supplyunit does not make the residential unit covered by the tax entry under Section 65(91a) of the Finance Act, 1994 - all consideration received under the Workscontract should be eligible for composition scheme and there is no reason fordenial of the said scheme for part of the works contract - Appeal allowed:CESTAT [para 5 to 7]



Ramesh Construction Company Vs CCE (Dated: January 18, 2017)

ST - Assessee engaged in providing services mainly relating to excavation,dumping, scrapping and removal of bunds to M/s South Eastern Coal Fields Ltd.under contract - Revenue views that assessee have rendered taxable service undercategory of "site formation and clearance, excavation and earth moving anddemolition service" in terms of section 65(97a) of FA, 1994 - Assessee contendsthat these are mining services not to be taxed under site formation category -Terms of contract are clear to the effect that they make the site fit and ready forcoal mining and coal extraction is not the work given to assessee - As such, noinfirmity found in orders of lower authorities - As assessee took up the matter with

service recipient along with various other contractors involved in same type ofwork regarding ST liability penalties imposed are waived: CESTAT


Wisdomleaf Technologies Pvt Ltd Vs CST (Dated: March 22, 2017)

ST - Assessee, a 100% exporter engaged in providing technology based webdeveloper solutions to its customers located outside India - Refund claim ofassessee were rejected being barred by limitation by relying on decision of HighCourt of Judicature at Madras in GTN Engineering (I) Ltd.- 2012-TIOL-369-HC-MAD-CX wherein it is held that relevant date for computing one year periodwould start from the date of export - Assessee submitted that Tribunal in case ofCrimsonlogic India Pvt. Ltd. has held that in the case of export of services, therelevant date is receipt of FIRC and the ending of the quarter - Held: in view ofsettled position, impugned order is not sustainable and is liable to be set aside andthe case is remitted back to the original authority to decide the refund claim afreshafter affording an opportunity to the appellant to produce the documents alongwith FIRC statements: CESTAT


Western Coal Fields Ltd Vs CCE (Dated: March 30, 2017)

ST - Assessee engaged in mining of coal in their various coal fields and enteredinto agreements with transporters for transportation of coal - Dispute is relating toliability of assessee to pay ST on reverse charge basis as a recipient of serviceunder category of GTA - Assessee's liability is brought in by a legal provision ofreverse charge in terms of Rule 2 (d) (v) of STR, 1994 - Admittedly, assessee arepaying freight and are covered by categories for reverse charge liability - STliability brought in by reverse charge mechanism does not by itself make theassessee the Goods Transport Agency - T ax liability under GTA service cannotbe sustained against assessee - Impugned orders are devoid of merit andaccordingly same are set aside:CESTAT


Techno Engineering Works Vs CCE & ST (Dated: February 8, 2017)

ST - Assessee, a proprietorship concern, engaged in providing repair,maintenance, erection, commissioning, installation, renovation, restoration andfinishing works mainly to New Mangalore Port Trust and also to other customers -A SCN was issued and demand confirmed under category of 'Commercial orIndustrial Construction Service,' 'Management, Maintenance or Repair Service'and 'Erection, Commissioning or Installation Service' with interest and imposedpenalty - Held: Assessee was a sole proprietorship concern and Shri WilliamD'Souza was sole proprietor who died on 30.12.2011 when appeal was pendingbefore Commissioner (A) - Further, in view of case law cited, no recoveryproceedings can be initiated against dead person - Therefore, keeping in view thedecision of Supreme Court in case of Shabina Abraham - 2015-TIOL-159-SC-CX, on the death of the sole proprietor, the present appeal abates and accordingly

disposed off: CESTAT


XL India Business Services Pvt Ltd Vs CCE & ST (Dated: February 28, 2017)

ST - Adjudicating authority has rejected the request of assessee for grant of refundof unutilized Cenvat Credit for three quarters on the ground that assessee was notregistered with ST department at the time of providing BAS - Both the lowerauthorities have held that registration with department is necessary for claimingany refund of unutilized credit - In view of decision of Karnataka High Court inmPortal India Wireless Solutions P. Ltd. 2011-TIOL-928-HC-KAR-ST , in theabsence of statutory provisions which prescribes that registration is mandatory andthat if such a registration is not made the assessee is not entitled to the benefit ofrefund, the authorities committed a serious error in rejecting the claim for refundon the ground which is not existence in law: CESTAT


Vodafone Essar Digilink Ltd Vs CCE (Dated: November 30, 2016)

ST - Assessee had entered into an agreement with Foreign Telecom Serviceprovider for purpose of providing connectivity to its subscribers, whenever Indiansubscriber goes abroad - Proceedings were initiated against assessee on the groundthat it is liable to pay service tax, under reverse charge mechanism, on theoutbound roaming services received from foreign telecom service provider undercategory of " Telecommunication services " - On perusal of statutory provision itis seen that in order to fall under taxable category, service provider must be aTelegraph Authority - Foreign Service provider has not been granted with anylicenses under Indian Telegraph Act, 1885 and hence cannot be considered as aTelegraph Authority - Since the service provider is located abroad, he is notcovered under definition given in section 65(109a), thus service provided byforeign vendors cannot be taxed under telecommunication service: CESTAT


Vision Labs Institute Vs CCE, C & ST (Dated: February 09, 2017)

ST - Penalty - Assessees are registered with the service tax department forproviding Survey and Map Making Services and Information TechnologySoftware Services (ITSS) - Even prior to issuance of SCN, assessee have paidmore than half of demand of ST along with interest - Even then department hasproceeded to raise demand for extended period alleging suppression of facts -Mere non-payment of service tax and mere non-filing of returns does not attractthe provisions of Section 78 as it contains the words fraud, wilful mis-statementand suppression of facts - When ST is not paid due to financial hardships, Section80 can be invoked to give the benefit of waiving penalty - Penalty under Section78 is unjustified, same is set aside: CESTAT


Anrak Aluminium Ltd Vs CCE, ST & C (Dated: April 4, 2017)

ST – Recovery of Interest - sub-section (1B) added to Section 73 w.e.f.14.05.2015 is not clarificatory – for prior period, Department cannot proceed torecover interest u/s 87 without issuing a SCN & determination u/s 73 of FA, 1994– Appeal allowed with consequential relief: CESTAT [para 10, 11]



Vodafone Mobile Services Ltd Vs CC, CE & ST (Dated: November 8, 2016)

ST - Assessee engaged in business of telecommunication services and soughtrefund of cenvat credit on angles, channels & beams used to make towers toprovide cellular services - Revenue denied the refund and further duty demandwith interest was raised along with the penalty- Assessee alleged that dutydemanded with penalty was barred by limitation Considering the case of M/sTower Vision India Private Ltd 2016-TIOL-539-CESTAT-DEL-LB it was madeclear that angles, channels and beams used by assessee to make tower which isimmovable thing cannot be called capital goods and not eligible for availing thecenvat credit - By considering cases of Continental Foundation, M/s TataTeleservices Ltd and M/s Vodafone Essar Digilink India Ltd, duty demanded withpenalty by revenue was not legal as it was beyond the limitation period and wasset-aside however duty demanded within the limitation period was upheld:CESTAT (Para 2,6)


Vivek Yashwantrao Bhandare Vs CCE, C & ST (Dated: September 16, 2016)

ST – Appellant is legal heir of assessee – Assessee, a proprietorship concernproviding CICS and Works Contract Service, was served with a notice demandingST of Rs.18,16,206/- out of which an amount of Rs.9,80,256/- was paid but beforeadjudication was completed, the proprietor expired; a further amount of Rs. 2lakhs was also deposited on 13.12.2011 - On behalf of appellant, the legal heirsought abatement of proceedings but same was not agreed to by lower authoritieswho upheld the demand and penalty as well as interest – appeal by legal heirbefore the CESTAT. Held : In view of Supreme Court decision in ShabinaAbraham v. CCE - 2015-TIOL-159-SC-CX where it is held that no separatemachinery is provided by the CESA to proceed against a dead person when itcomes to assessing him to tax under the Act, demand of duty/tax and penal actionare not legal and proper – impugned order set aside and appeal allowed: CESTAT[para 5, 6]


United Electricals And Mechanical Works Vs CST (Dated: April 17, 2017)

ST – Appellants, engaged in providing management, maintenance and repairservices, discharged ST on 20% value of the contract which stipulated that thevalue of the materials to be supplied as 80% and the service portion will be 20% -

appellants discharged VAT on supply of the goods and discharged ST onrendering of service – revenue of the view that the valuation has been madeimproperly by the appellant in terms of notification no.12/2003-ST, they have notproperly taken the actual service value to pay ST – SCN issued – ST liability ofRs.1.09 crore confirmed, penalties imposed – appeal to CESTAT.

HELD - Identical set of facts in respect of other contractors, who entered into acontract with the same client, have been subject matter of decision by the Tribunalin the cases of Gogia Brothers, National Pump Service and Raj Engineering -2016-TIOL-3359-CESTAT-DEL – it is also noted that appellants pleaded thatthere is no monetary gain for them in artificially loading more value to materialssupplied by paying VAT, as the rate of VAT is higher than ST payable on theservice portion – work orders clearly stipulated that 80% of the value shown tohave suffered VAT with reference to supply of materials – considering the ratiofollowed in the cases cited above, in identical set of facts, impugned order is notsustainable – accordingly, same is set aside and appeal allowed : CESTAT [para 6,7]2017-TIOL-1892-CESTAT-MUM

CCE Vs Sai Service Station Ltd (Dated: March 31, 2017)

ST - Revenue is aggrieved on the ground that the first appellate authority has set asidethe demand of service tax on the consideration which is worked out for free after-saleservices rendered by respondent to the customers for the vehicles sold by them. Held:Issue is no more res integra as identical issue came up before the Tribunal in the caseof Automotive Manufacturers Ltd. - 2015-TIOL-2557-CESTAT-MUM wherein theTribunal held that service tax liability cannot be on the part of margin given by themanufacturer to the dealer as being inclusive of the charges of free sale service - samehas been held in case of Hindustan Auto House (P) Ltd. - 2008-TIOL-1815-CESTAT-DEL - impugned order is, therefore, correct and legal and does not require anyinterference - Revenue appeal dismissed: CESTAT [para 4.1, 4.2]


Rajasthan State Road Development and Construction Corporation Ltd Vs CCE(Dated: December 15, 2016)

ST - Assessee, an undertaking of Rajasthan Government engaged in various activitiesof civil construction, maintenance & repair of buildings and roads - Present liabilityconfirmed by impugned order basically falls under three categories i.e. Construction ofnew buildings; Management, maintenance or repair of buildings and Management,maintenance or repair of roads - Amendments brought in by FA, 2012 regardingretrospective exemption for two categories of services regarding new construction ofbuildings and Management, maintenance or repair of buildings and management,maintenance or repair of roads w.e.f. 16.06.2005 are having relevance to assessee -As amendments were carried out later, same is not available before Original Authority,as such, matter remanded to Original Authority - Third issue regarding nature of civilconstruction carried out by assessee also requires re-examination as assessee ispleading that they will establish their submissions with supporting evidences: CESTAT


Brindesh G Agrawal Vs CC, CE & ST (Dated: February 22, 2017)

ST – Arranging finance for borrowers and receiving commission - as consideration isnot connected with the sale of a product or service belonging to the borrower,appellant does not find fitment under BAS – Appeal allowed with consequential relief:CESTAT [para 4, 5]



CST Vs Trianz Holdings Pvt Ltd (Dated: February 20, 2017)

ST - Assessee has filed claim for period October 2009 to March 2010 seeking refund ofunutilized CENVAT credit availed on various input services in terms of Rule 5 of CCR,2004 r/w Notfn 5/2006 in respect of input services said to have been utilized inproviding export of services - Original adjudicating authority rejected said refund claimholding that refund claim is time barred - However Commissioner (A) allowed theappeal by way of remand - Aggrieved by said order, revenue is in appeal - Held:Refund claim filed in respect of exports pertaining to a quarter and since the statutepermits the assessee to file the claim for a quarter and therefore cutoff date to filerefund claim in terms of Section 11B has to be interpreted as the last date of thequarter to which the claim pertains and finally said claim is not time barred: CESTAT


Samal Developers Vs CCE (Dated: April 3, 2017)

ST – Material supplied free by clients for rendering services of Commercial andIndustrial Construction services - Lower authorities have held that the service taxliability needs to be discharged on the basis of the value which needs to be worked outby including the cost of free materials supplied by the recipient of services for provisionof services by the appellant – appeal to CESTAT. Held: Issue is no more res integra asLarger Bench in the case of Bhayana Builders - 2013-TIOL-1331-CESTAT-DEL-LB hasheld that value of free supply material by service recipient need not be included in thevalue for discharge of service tax liability – impugned order unsustainable, hence setaside and appeal allowed: CESTAT [para 4, 5]


CCE Vs Ajara Shetkari SSK Ltd (Dated: March 31, 2017)

ST - Respondent's factory was in debt to Co-operative bank and the same was takenover by the Bank - In order to meet the debt, the bank entered into tripartiteagreement between the bank, respondent and various sugar factories for using themanufacturing facility of the respondent for manufacturing of sugar - Under the saidagreement, the other two sugar factories who utilized the capacity of the respondent'sfactory, were required to pay an amount to the bank and as per the said agreementthey were required to pay salaries/wages and other statutory contributions of theemployees/workers directly - It is the case of Revenue that the amount paid by thesugar factories to the employees directly (who are the employees of the respondent),service tax liability arises thereon under the category of ‘Manpower recruitment orsupply agency services' – AA held that the respondent did not receive anyconsideration for providing his employees to other sugar factories and since there waszero consideration, the tax will also be zero even though the service is taxable –Revenue appeal before CESTAT. Held: Identical issue has been decided in cases ofRaje Vijaysingh Dafale SSK Ltd.- 2015-TIOL-535-CESTAT-MUM and S.M. Magar(Labour Contractor) – 2016-TIOL-1056-CESTAT-MUM and wherein the Bench has heldin favour of the appellants therein – as the impugned order is correct and legal anddoes not suffer from any infirmity, same is upheld and appeal is rejected: CESTAT[para 4, 5]


CCE Vs Shriram Sahakari Sakhar Karkhana Ltd (Dated: March 17, 2017)

ST - Payments received by lessor on behalf of the workers used by the lessee of afactory for carrying out their operations, whether taxable under 'manpower recruitmentand supply services' – Commissioner(A) dropped the demand, therefore, Revenue in

appeal before CESTAT. Held: Entire amount received by the respondent fordisbursement to the workers, out of which a portion has been withheld, not asconsideration for any service, but in accordance with the directions of the financingagency which has made such retention a condition for the wage package with theretained amount payable upon finalisation of the wage agreement - decision in RajeVijaysingh Dafale SSK Ltd - 2015-TIOL-535-CESTAT-MUM that question of demandingany service tax in the absence of a consideration will not arise at all will apply to thefacts of the present case and take it out of the ambit of taxability – no merit inRevenue appeal, hence rejected: CESTAT [para 7, 9]


Siddha Projects Pvt Ltd Vs CCE (Dated: March 20, 2017)

ST - Assessee entered into an agreement with Rajasthan Housing Board, Jaipur forappointing the assessee as project management and marketing consultant withreference to development of residential enclave with various infrastructures, primarilyfor non-resident Indians - Revenue views that activities undertaken by assessee areliable to be taxed and accordingly, SCN was issued to assessee - Particulars alongwithsupporting documents were submitted by assessee which were taken on record anddecision was arrived at and ST demand was confirmed under category of Real EstateConsultant - It is clear that assessee did provide taxable service under above category- As such, assessee is liable to ST under said category during the relevant period.

Regarding sustainability of demand for extended period, assessee raised various billsto Rajasthan Housing Board which indicated ST element separately - Though, assesseesubmitted that they did not receive the tax amount from their clients, incidence of taxliability is apparently in knowledge of assessee and they have not got themselvesregistered with Department, neither filed periodical returns - A demand for extendedperiod in terms of proviso to Section 73 (1) is rightly invokable - There is a reasonablecause for non-payment of ST by assessee and accordingly, provisions of Section 80 canbe applied for waiver of penalty imposed under Section 76 and 78: CESTAT


Garware Polyester Ltd Vs CCE & C (Dated: March 31, 2017)

ST - Appellant is not required to discharge service tax on an amount paid by them asTDS for the payment remitted to the overseas service provider - It is undisputed thatappellant had only paid the actual consideration as per the agreement and nothing else- value which is to be considered for discharge of service tax liability under reversecharge mechanism is equal to the actual consideration charged for the servicesprovided or to be provided - impugned order set aside and appeal allowed: CESTAT[para 5.1, 5.2]



Star Enterprises Vs CCE (Dated: April 17, 2017)

ST - Appellants opted for VCES, 2013 and declared total tax dues of Rs.9,47,803/- - itwas found on the basis of income tax returns and balance sheet that the tax dues isRs.13,55,370/- and, therefore, SCN was issued on allegation of false declaration -appellant discharged the entire tax liability but not within the time limits prescribedunder VCES - demand was confirmed by adjudicating authority viz. CCE, Aurangabadwith equal penalty and interest - appeal to CESTAT. Held: There is no dispute on thefact that appellants while availing VCES gave a false declaration as they have notdeclared the correct dues - Therefore, their case cannot be settled under VCES, 2013 -Since there is a false declaration, the appellants cannot be absolved from the penaltyas malafide intention is clearly proved - impugned order does not require anyinterference - appeal dismissed: CESTAT [para 5]


CC, CE & ST Vs M A Majeed (Dated: August 22, 2016)

ST - Assessee was operator of COCO retail outlets of M/s Bharat Petroleum Dealers -After inspection of premises of assessee and perusal of agreements entered into byassessee with M/s BPCL, department views that assessee was rendering BAS to BPCLand therefore is liable to discharge ST liability for said services - Commissioner (A)held that demand to the extent of reimbursable expenses is not sustainable - Ifreimbursable expenses are taken into consideration then, demand of ST would bemuch below the threshold level - Considering this ground submitted by assessee aswell as the fact that department has withdrawn their contest on demand, interest,penalty and appeal filed by department having been dismissed, appeal filed byassessee is allowed: CESTAT

cestat ruling - tax india online...amira foods india ltd vs cce (d ated: march 27, 2017) st -...

Documents