cestat ruling (service tax)

CESTAT RULING (SERVICE TAX)

2015-TIOL-2089-CESTAT-MUM

Hindustan Petroleum Corpn Ltd Vs CST (Dated: September 2, 2015) ST - Refund - Notification 37/2010-ST cannot be considered to have retrospective effect - tax paid under the category of services provided by Airport authority under Section 65(105)(zzm) were inserted in Notification 17/2009-ST by Notification 37/2010-ST dated 28.06.2010 and refund permissible only from that date - claim correctly rejected: CESTAT [para 6, 7]

Also see analysis of the Order


Aarti Infra Projects Pvt Ltd Vs CCE (Dated: July 10, 2015) ST - Liability to service tax under the category of 'Erection and Commissioning Service' for the amount realized by appellant from Maharashtra State Electricity Board (MSEB) during the period June 2006, September 2006, November 2006 and September 2007 - Appellant submitting that the contract entered by them with MSEB specifically talks about the same being Works Contract and, therefore, they were under bonafide belief that the activity may not be covered under the Service Tax net; that as per the LB decision in Larsen & Toubro - 2015-TIOL-527-CESTAT -DEL-LB the issue on merits is covered against them, however the question of limitation needs to be addressed. Held: On merits, the issue is covered against appellant, however, during the relevant period there were few decisions of the Tribunal holding that when a contract entered is a Works contract, it cannot be covered under the specific category of 'Erection and Commissioning service' - appellant could have entertained a bonafide belief that they may not be covered under 'Erection and Commissioning service' but would be covered under Works Contract which was not in statute during the material period i.e 2006 - demand for the period June and September 2006 is hit by limitation, hence demand set aside to the said extent - for the period within the limitation period i.e November 2006 and September 2007, demand upheld along with interest and penalties - Appeal partly allowed: CESTAT [para 6, 6.1, 6.2]

2015-TIOL-2087-CESTAT-DEL

CCE Vs Suraj Impex India Pvt Ltd (Dated: August 14, 2015) ST - Refund - Technical testing and analysis service - As regards the refund of Rs.12,010/-, there is no doubt that said service was used in relation to exported goods and such testing was required to be done as per the written agreement with buyers and also the said service is duly covered under Notfn 41/2007-ST, therefore, Tribunal failed to comprehend the ground on which Revenue considered this amount of refund to be inadmissible: CESTAT

Port Services - As regards the refund of Rs. 87331, invoices have been raised by Mumbai Port trust which clearly shows the amount of ST therein and name of assessee is also duly mentioned therein - Port services are specifically covered under Notfn 41/2007-ST: CESTAT - Appeal dismissed : DELHI CESTAT


CST Vs Bagai Construction (Dated: July 14, 2015) ST - Assessee paid ST under Works Contract Service @ 2.06% under Composition Scheme on the ground that service was rendered before 1.3.2008 although payment was received after 1.3.2008, while primary authority held that correct rate of tax was 4.12% which was the rate applicable on date of receipt of payment - Taxable events had admittedly occurred prior to 1.3.2008 - At that point of time, rate of ST applicable in respect of services in question was 2% and not 4%, which came into effect only on or after 1.3.2008 - As per Vistar Construction (P) Ltd. 2013-TIOL-73-HC-DEL-ST, rate of tax applicable on date of which services were rendered would be the one that would be relevant and not the rate of tax on date on which payments were received: CESTAT

2015-TIOL-2069-CESTAT-MAD

CCE Vs Star Vision (Dated: March 18, 2015)

Service Tax -Business Auxiliary Service (BAS) - Assessee is an authorized distributor of Star India Pvt. Ltd. and ESPN, distributing the channels to the cable operators and received commissions from the channel operators - Adjudicating authority confirmed the service tax demand under BAS; appropriated the entire service tax already paid; and imposed penalties under Sections 76, 77 and 78 - Commissioner (Appeals) upheld tax demand and penalties under Sec 77, 78 while reducing the penalty under Sec 76; agitated by the assessee and Revenue on corresponding portions of the impugned order herein.

Held: The only question arises in this appeal is as to whether appellant is eligible for waiver of penalty under Section 80 of the Finance Act 1994 - levy of service tax on the commissions received from the TV channel operators under BAS came into effect w.e.f 1.7.2003 vide Notification No.7/2003-ST dt. 20.6.2003 - Considering the ambiguity prevailing on payment of service tax during the relevant period appellant's contention merits justification for bonafide cause for invoking Section 80 - Following theKarnataka High Court ruling in the case of CST Bangalore Vs Motor World, and the Tribunal (Chennai bench) rulings cited, there is reasonable cause established in the present case for waiver of penalties; the same imposed under Section 76, 77 and 78 are set aside; Assessee's appeal is allowed and Revenue appeal is rejected. [Para 5] -


Tmp Manoharan And Co Vs CCE (Dated: July 16, 2015) Service Tax - Stay/dispensation of pre deposit - appellant provided service as a sub contractor - tax demand with interest and penalty under Sections 76, 77 and 78 of the Finance Act 1994 made for extended period by reconciliation of ST-3 returns with balance sheet; agitated herein.

Held: Impugned order has already taken into account the total value and the revised valueafter excluding the amount already paid as per the Range Officer's verification report - appellants have paid an amount of Rs.78,10,816/- for the period 2009-10, 2010-11 and 2011-12 as per ST -3 returns and challans; but have not made out a prima facie case for waiver of predeposit of entire demand - contention of being a sub-contractor, tax liability should be fastened on the main contractor will be examined at the time of final hearing - considering the facts and circumstances, the appellant is directed to predeposit Rs.16,00,000/- (Rupees sixteen lakhs only) within 8 weeks - The amount of Rs.11,86,975/- claimed to have already been paid by them will be adjusted towards the predeposit subject to verification by the Department.

[Para 4]


Basti Sugar Mills Ltd Vs CCE (Dated: July 31, 2015)

ST - Agreement to provide service was entered into by registered office (headquarters) of M/s Basti Sugar Mills at New Delhi where service recipient is also located - Service was also rendered at New Delhi - Central Excise, Allahabad had no jurisdiction to issue SCN or adjudicate the case - No analysis found in lower authorities' orders as to how service rendered falls under scope of Management Consultancy Service - It has to be stated that description of service rendered namely "Business Promotion and Support Services, Customer Care, Product Launching, Customer Education Programme and Energy Consultancy" is so sketchy that by said description it is impossible to classify said service and Revenue has made no effort to marshal any evidence/reason to show as to how the same would be covered under Management Consultant Service - It is settled principle that onus is on Revenue to show that service rendered was classifiable under a particular taxable service and there is no scope for assumption or presumption in this regard - Appeal allowed: CESTAT


CCE Vs Capital Tv Service Centre (Dated: July 23, 2015) ST - Appeal filed against order of comissioner (A) which set aside O -I-O wherein demand was confirmed along with interest and penalties on the ground that assessee did not pay ST under BAS on commission which the assessee received from BSNL for sale of recharge coupons and Sim cards - CESTAT order dated 29.01.2014 which was issued in respect of several appellants including assessee in this case fully covers the issue in assessee's favour - No merit in revenue's appeal, hence dismissed: CESTAT


Cricket Club of India Ltd Vs CST (Dated: September 21, 2015) ST - Club or Association service - Habituated to tax on tangible goods, the concept of tax on services may not be easily appreciated for the very reason of its intangibility - provision of service is not perceptible as a quid pro quo for payment of entrance fees - Such entrance fees do not usually confer access to services, facilities or advantages for which membership of the club or association is keenly sought - ST not payable - Refund admissible - Unjust enrichment not attracted - Appeal allowed: CESTAT [para 13 to 18]

Also see analysis of the order


M/s NIIT Ltd Vs CST (Dated: August 7, 2015)

ST - Commercial Training & Coaching Services - Even after the demand was confirmed and the issue no longer remained res integra appellant did not remit the tax demand which clearly shows that failure to remit ST was not because of any reasonable cause - s.80 benefit not available: CESTAT [para 4, 5]



M/s Grey Worldwide (India) Pvt Ltd Vs CST (Dated: July 20, 2015) ST - Appellant undertaking advertisement campaign for Ministry of Tourism , GOI, in print and electronic media and outdoor hoardings in London, NY & Paris - Media costs incurred by the appellant beyond the territorial waters of India is not includible in taxable value - Appeal allowed: CESTAT [para 6, 6.1, 7]



CCE Vs Chief Manager, Punjab National Bank (Dated: July 31, 2015) ST - Revenue is in appeal against impugned order wherein penalty under section 78 of FA, 1994 is set aside - Commissioner (A), has recorded that issue relating to applicability of ST on MICR services was under dispute and this issue was taken up by Indian Banks Association with Ministry of Finance - CBEC vide its letter No.137/1/2005-CXA, replied that Indian Banks Association's representation had been rejected and that IBA should advise all the member Banks to pay ST with interest at earliest - On receipt of advice of IBA, assessee paid ST and also interest thereon - No wilful misstatement or suppression of facts and there was reasonable cause for failure to deposit ST initially - Commissioner (A) was fully justified in invoking Section 80 for waiving penalty under Section 78: CESTAT


M/s Uem India Ltd Vs CST (Dated: August 4, 2015) ST - "Commercial or Industrial Construction Service" (CICS) - Work done for Karnataka Industrial Area Development Board and Hyderabad Urban Development Authority should be counted towards CICS as these were commercial bodies - As revenue conceded that work done for UP Jal Nigam would not be covered under CICS, prima facie the same would be the case with regard to work done for Delhi Jal Board - Assessee has an arguable case for work done for Haryana Urban Development Authority relating to construction of 50 MLD main sewage pumping station for supplying treated water to residential localities - However, construction of effluent treatment plant for recycling of treated waste water supplied to industrial units in Karnataka Industrial Area would prima facie fall under CICS - There is force in contention of assessee that demand in respect of first SCN for period October, 2005 to March, 2010 involve supply of goods and therefore 67% abatement was available to it - Pre -deposit of Rs.25 lakhs with proportionate interest is ordered: CESTAT


Renaatus Projects Pvt Ltd Vs CCE & ST (Dated: July 23, 2015) Service Tax - Stay/dispensation of pre deposit - tax demands under 'dredging' service [Section 65 (36a) of the Finance Act 1994] and construction services adjudicated and agitated herein.


Metal Craft Enterprises Vs CCE (Dated: September 02, 2015) ST - Supply of scaffolding on rental basis – Demand raised by Revenue under 'Maintenance & Repair Service' – Commissioner (A) dropping demand for the period 2004-05 to 15.05.2008 but confirming tax liability for the period 16.05.2008 to 31.03.2009 under the category of 'Supply of Tangible Goods" service – Order unsustainable as the same is traversing beyond the allegations made in the SCN – Appeal allowed: CESTAT



Rail Tel Corporation Of India Ltd Vs CCE (Dated: July 24, 2015)

ST - BAS - Service tax with effect from 1.6.2007 on amount received for leasing of tower space is being remitted by assessee under tele communication service - There is nothing in FA, 1994 to even suggest that there was a transplant of any part of BAS into tele com service with effect from 1.6.2007 which by implication means that service was not taxable under BAS prior to 1.6.2007 - Thus demand of Rs.74,27,181/- confirmed under BAS on the amount received for lease of tower space on its microwave towers to various cellular operators is not sustainable: CESTAT

Leased circuit service - Assessee had leased dark fibre cables - Dedicated dark fibre cable link was provided to a subscriber by a telegraph authority and therefore all requirements of Section 65(105))(zd) (a ccording to which the taxable service is "to subscriber by a telegraph in relation to a leased circuit") are clearly satisfied inasmuch as leased circuits were provided by assessee, whose is a telegraph authority, to a subscriber - Thus demand pertaining to leased circuit service is clearly sustainable on merit - Assessee is guilty of suppression of fact and therefore, extended period has rightly been invoked and mandatory penalty is clearly imposable: CESTAT


M/s Tata Steel Ltd Vs CST (Dated: September 10, 2015)

ST - Appellant borrowing, by way of 'syndicated loans' for acquisition and capital expansion, from various overseas banks - whether Service Tax is payable under reverse charge on the Agent Bank fees paid by the appellant-borrower to the nominated Agent Bank of the lenders - Supplementary questions framed & referred to Third Member : CESTAT [para 6]



Air India Ltd Vs CST (Dated: July 6, 2015)

ST - Franchisee service - Assessee had a house magazine 'Swagat' published through Media Transasia India publication - Said magazine is published only for use of Indian Airlines/Air India to be kept in aircraft for passengers - Its contents and advertisements are approved by assessee and it does not pay any amount to publisher - However, Media pays them a monthly amount - Nothing on record to indicate whether limb 4 of definition of franchise as it stood prior to 16.6.2005 is satisfied and therefore demands up to period 15.6.2005 prima facie may not be sustainable - As regards the period from 16.6.2005, issue involved is interpretational and therefore assessee's contention that there was no wilful mis-statement or

suppression of fact on their part and they genuinely believed that the amount was not taxable has some merit and as a consequent prima facie extended period may not be invocable - Stay granted: CESTAT


CST Vs M/s Dell International Services India Pvt Ltd (Dated: June 17, 2015)

Service Tax - Rebate - Respondent's rebate claim of CENVAT credit denied in adjudication; relief granted by Commissioner (Appeals) and agitated by Revenue herein.

Held: Commissioner (Appeals) has only printed the headlines from ELT and passed the order without examining the evidence and material fact in respect of each claim of CENVAT credit - Under section 35A(4) of the Central Excise Act, 1944 which is applied to Finance Act, 1994 Commissioner (Appeals) is required to decide an appeal clearly stating the points for determination, the decision thereon and the reasons for the decision - Unless the material facts are tested by evidence and law, there shall not be any decision in the eyes of law; it shall be an empty formality - Apex Court in the case of Joint Commissioner of Income Tax, Surat Vs. Saheli Leasing & Industries Ltd laid down guidelines as to the manner how an order is to be written - Commissioner (Appeals) has to take up each and every item of claim of CENVAT credit and discussing the material fa cts in respect of the claim of the assessee, test the same on the touch stone of law and then shall pass appropriate order - Respondent shall get reasonable opportunity of hearing in the course of disposal of appeal; Upon testing the veracity of claim of C ENVAT credit, the rebate claim made by the respondent shall deserve consideration [Para 4, 5]


M/s Industrias Del Recambio India Pvt Ltd Vs CST (Dated: July 16, 2015)

Service Tax - Condonation of delay - tax demand under reverse charge adjudicated and agitated belatedly before Commissioner (Appeals) with prayer for condonation of delay of 172 days - first appellate authority dismissed the same on the ground that it was filed beyond the condonable limit prescribed in Sec 85(3A) of the Finance Act 1994; and agitated herein.

Held: Supreme Court in the case of Singh Enterprises Vs. CCE, Jamshedpur categorically held that Commissioner (Appeals) and the Tribunal has no power to condone the delay beyond the stipulated period - ratio of the ruling squarely applicable to the present case; the lower appellate authority has rightly dismissed their appeal as time barred and there is no merit in the appeal filed by the appellant. [Para 4, 5]


Sri Sabarey Enterprises Vs CCE (Dated: June 22, 2015)

Service Tax - Clearing & Forwarding Agency Service - short issue relates to demand of service tax on the commission received by the appellants under Clearing & Forwarding Agency Service for the period September 1999 to March 2004 - The adjudicating authority confirmed the demand with penalty; Commissioner (Appeals) granted relief on penalty under Sec 78; primary tax demands are agitated herein.

Held: Under the agreement between the appellant and their principal manufacturer,

appellants are to market and sell the goods as per the value fixed by the principal manufacturer and are entitled to a commission of 5% on the remittance amount - In the present case, appellant's principal activity is sale and marketing of goods on behalf of the principal manufacturer and also for carrying out storage and distribution - In view of definition and Explanation to Section 65 (19) of the Finance Act 1994, it is clear that appellant's principal activity is sale and marketing of the goods for their principal manufacturer, eventhough they may handle the goods for storage and distribution and forwarding of goods - The Apex Court upheld the Tribunal ruling in an identical issue in the case of CCE Vs Transasia Sales Syndicate holding that service rendered by the assessee do not fall under Clearing & Forwarding service but as "Commission Agents" – Following the same, the service tax demand confirmed under C&F service in the instant case is unsustainable; impugned orders are set aside. [Para 5, 7]


CCE Vs Central Warehousing Corporation (Dated: July 15, 2015) ST – Appellant, a Container Freight Station received amounts on the goods auctioned by them – these goods were abandoned by the importer and the said goods were auctioned as per the provisions of the Customs Act, 1962 and after discharging all the duties as per section 150 of the CA, 1962 the appellant retained an amount which was to be returned to the importer – it is the case of the Revenue that on this amount Service Tax liability arises under the category of 'Storage and Warehousing service'. Held: Issue is no longer res integra in view of the Tribunal decision in Maersk India - 2012-TIOL-840-CESTAT -MUM where it is held that in view of Board Circular no. 11/1/2012-TRU dated 01.08.2002 clarifying that Service Tax is not leviable on the activities of the custodian where he auctions abandoned Cargo and ST/VAT is paid in respect of that cargo - Order of CCE, Raigad setting aside the demand is correct and legal and no interference is called for – Revenue appeal rejected: CESTAT [para 4, 5, 6]


Radical Instruments Vs CCE (Dated: August 19, 2015) ST - Assessee, manufacturer of microscopes and accessories was sending finished products to its buyers, domestic as well as overseas through courier services - Also availed cenvat credit paid on such courier charges and utilized the same for payment of ST on its output services like GTA, Repair & Maintenance and Erection, Commissioning or Installation services - Decision in case of Ambuja Cements Ltd. 2009-TIOL-110-HC-P&H-ST covers the issue in favour of assessee - Since the courier and GTA services are input services for rendition of output services, cenvat credit is equally admissible: CESTAT


CCE & ST Vs M/s Grasim Industries Ltd (Dated: July 9, 2015) Service Tax - CENVAT credit - credit availed on input services, namely 'maintenance of windmill', and 'gardening services' held admissible in adjudication and agitated by Revenue herein.

Held: Credit held admissible on maintenance of windmill as already decided - respondent being a manufacturer of cement was directed by Pollution control Board to prevent pollution planting trees in its factory area - Authorities are expected to record the material fact properly and test the same with evidence on record so that the

decisions flows in accordance with law; Failure to do so results in mockery or miscarriage of justice - planting of trees cannot be equated with maintenance of garden - considering that a cement factory requires planting of the trees and maintenance thereof to prevent pollution, credit cannot be denied [Para 4]


M/s Jindal Steel And Power Ltd Vs CC & CE (Dated: August 20, 2015) ST - Refund - Assessee had initially filed a claim before Delhi Commissionerate which rejected the same on the ground that it had no jurisdiction since the assessee was pursuing business outside its jurisdiction - Bilaspur Commissionerate also rejected refund claim of assessee on the ground that provider of service is not within its jurisdiction - If assessee who is a recipient of non taxable service, files a claim for refund within prescribed period of limitation, it is axiomatic that it is entitled to do so before the Commissionerate under whose jurisdiction it pursues its taxable activities, business or is a registrant; or before Commissionerate having authority over provider of service - Rejection by both Commissionerates is unsustainable - Assessee is entitled for refund: CESTAT


M/s Magnum Ventures Ltd Vs CCE & ST (Dated: July 13, 2015) ST - Period of dispute is 2010-2011 - Demand alongwith interest and penalty confirmed on the ground that assessee had not paid 6%/8% of value of exempted service while they had taken Cenvat credit without maintaining of separate accounts of input service credit in respect of taxable as well as exempted output services - Assessee contends that restaurant service and short term accommodation service were not even taxable during said period and therefore those cannot be treated to be exempted service - Pre-deposit of amount of Cenvat credit taken towards so-called "non-taxable output service" along with proportionate interest would meet requirement of Section 35F of CEA, 1944 - Pre-deposit of Rs.20.34 lakhs ordered: CESTAT


CCE Vs M/s SCI Coaching (Dated: August 6, 2015) ST - Commercial training or coaching service - It is not disputed that ST has been demanded on amount received in months of May and June, 2003 for providing commercial training or coaching service while said service became taxable only from 1.7.2003 - Without going into legal aspect whether amendment of Rule 6(1) had retrospective effect, it is quite reasonable on part of assessee to entertain a belief regarding non taxability of amount received prior to the date when said service became taxable, especially when there is no evidence produced by Revenue to establish that there was wilful suppression of facts on part of assessee - As service became taxable from 1.7.2003 and so it is rather unreasonable to require (or expect from) assessee to file ST-3 return from April, 2003 onwards - As SCN was issued on 2.7.2006, entire demand is beyond normal period of one year and is therefore fatally hit by time-bar: CESTAT

2015-TIOL-1997-CESTAT-BANG

M/s Milestone Property Services Vs CCE & ST (Dated: May 1, 2015) Service Tax - Penalty - Delayed payment - Financial Difficulty - Reasonable cause under section 80 - Appellant registered as a service provider in July 2008 and visit of officers took place within six months thereafter - Appellant paid entire tax liability with interest including some excess amount for the period prior to the due date - Intention to evade duty cannot be attributed - More so, appellant being new to the tax provisions, taking a lenient view is warranted - On facts, tax amount paid with interest is confirmed and penalty imposed is waived - (Para 5)


General Motors (I) Pvt Ltd Vs CCE (Dated: September 8, 2015) ST - Explanation to rule 6(1) of STR, 1994 inserted by notification 19/2008-ST dt. 10.05.2008 - Associated enterprise - A debit entry will have a corresponding credit entry and the existence of such entry w.r.t royalty on vehicles manufactured by the appellant during a particular month, without an entry in the supplier's ledger, suffices for it to be included in the value of taxable service and liable to be taxed by the fifth of the following month: CESTAT [para 13]



Vidharbha Iron And Steel Co Ltd Vs CCE & C (Dated: July 16, 2015) ST - Appellant had, as per arrangement and order of the Bombay High Court, rented out the factory premises to FACOR and were discharging Service Tax liability on Renting of Immovable property - as per the scheme of arrangement, employees of the appellant were to work for FACOR and the salaries and wages along with the government dues were to be reimbursed at actuals to the appellant - Revenue contention is that the amount received by appellant is taxable under the category of ‘Manpower Recruitment and Supply Agency service'. Held: Issue is now settled by the Bench in the appellant's own case - 2015-TIOL-1710-CESTAT-MUM where it is held that the ST demand not sustainable as there is nothing on record to show that the appellant functioned as a commercial concern engaged in supply of manpower to FACOR - Order not sustainable, hence set aside and appeal allowed: CESTAT [para 4, 5]

2015-TIOL-1984-CESTAT-AHM

S B Engineers Vs CCE, C & ST (Dated: July 20, 2015) ST - Whether assessee is required to pay an amount equivalent to 8% or 6% with respect to exempted activities undertaken by job worker which are exempted under Notfn 8/2005 - Issue stands settled in view of ordered in case of JBF Industries 2014-TIOL-972-CESTAT -AHM- Provisions of Rule 6(1) of CCR, 2004 cannot be invoked for denying Cenvat credit of input services used by assessee for manufacture of job-worked goods - Appeal allowed: CESTAT


CST Vs ICICI Bank Ltd (Dated: August 6, 2015) ST - Banking & Other Financial Services - Bond subscriber does not pay ICICI Bank anything more than the bond price and it is from RBI that assessee-appellant obtains the remuneration - RBI is not a client as far as the securities are concerned because

they are not the owners of the bonds - Without rendering of custodian services, it would not be correct to hold that the appellant is liable to service tax for the consideration received from the RBI - custodial services in relation to securities is primarily the safekeeping of the securities of a client - Sans client-custodian relationship and sans entrusting of securities for safekeeping, the incidental services are not relevant: CESTAT



M/s HCL Technologies Ltd Vs CC, CE & ST (Dated: August 10, 2015)

ST - Refund - Input Service - Rule 2(l) of CCR, 2004 - Legal consultancy services are indispensable for any business to satisfy proper compliance of legal requirements and hence are input services - Design services for getting Coffee mugs printed with logo of appellant cannot be input service; credit on service tax paid for stay in hotel as renting of hotel/renting of immovable property is not Input service - Refund claim for Rent-a-Cab Services, Courier Services, Management, Maintenance & Repair Service, Manpower Recruitment Service, Security Services, Cleaning Services, BSS Services (Summit), Legal Consultancy Services, Chartered Accountancy Services, are Input services, hence allowed - Refund claim on improper/defective invoices pertaining to services other than Telecommunication Services and Renting of immovable property are allowed: CESTAT [para 4 to 15]



Balmer Lawrie And Co Ltd Vs CCE (Dated: July 15, 2015)

ST – Appellant, a Container Freight Station received amounts on the goods auctioned by them – these goods were abandoned by the importer and the said goods were auctioned as per the provisions of the Customs Act, 1962 and after discharging all the duties as per section 150 of the CA, 1962 the appellant retained an amount which was to be returned to the importer – it is the case of the Revenue that on this amount Service Tax liability arises under the category of ‘Storage and Warehousing service'. Held: Issue is no longer res integra in view of the Tribunal decision in Maersk India - 2012-TIOL-840-CESTAT -MUM where it is held that in view of Board Circular no. 11/1/2012-TRU dated 01.08.2002 clarifying that Service Tax is not leviable on the activities of the custodian where he auctions abandoned Cargo and ST/VAT is paid in respect of that cargo – Order set aside and appeal allowe d: CESTAT [para 4, 5]


M/s Nizamsingh Chauhan Vs CCE (Dated: July 16, 2015)

ST - Cargo handling service - As per tender document for railing and transport of Maganese Ore, the service involved wagon loading, truck loading, transport including stacking and de-stacking/rehandling of manganese ore - As goods were loaded on to trucks and wagons they acquired the status of cargo, therefore, activity performed by assessee clearly fell under category of cargo handling service as defined in Section 65(23) of FA, 1994 - It is not a case where assessees could/would have intended to suppress the fact of rendition of impugned service - Assessees also supplied the information within about 3 weeks of date on which they were summoned to appear before CE officer - Commissioner (A's) finding that assessees are not guilty of supression and do not deserve to be penalised does not warrant any appellate intervention: CESTAT


M/s Imranullah Naimullah Vs CC & ST (Dated: May 15, 2015)

ST - Appellant had supplied manpower to principal for undertaking the work of ‘commissioning and installation' but had not discharged ST - appellant had neither charged service tax in its bills nor the same was paid by the principal - stand taken by appellant that the default was only due to lack of knowledge and there was no contumacious conduct and/or suppression with intent to evade tax have not been found untrue - as appellant have paid tax and interest under proper intimation they are entitled to the benefit u/s 73(3) of FA, 1994 - penalties u/s 77 and 78 set aside - they are also entitled to refund of excess tax as well as excess interest deposited - appeal allowed with consequential benefits: CESTAT [para 5]


CCE Vs Shivlal Sharma (Dated: April 24, 2015)

ST - Adjudicating authority confirmed demand of service tax under the category of "Manpower Recruitment and Supply Agency Services" holding that the respondents - assessees have supplied manpower to one M/s. Amitasha Enterprises Pvt. Ltd. whereas it is a case of the respondent(s) - assessees that they have undertaken a job, consideration for which is paid on the basis of lump sum amount - Commissioner(A) setting aside demand holding that service does not fall under the proposed category - Revenue in appeal.

Held : Ground of appeal basically relies upon the licence issued to the respondents -assessees by the Licensing Officer, Govt. of Maharashtra holding that Amitasha Enterprises is a principal employer - this licence may not change the complexion of the services in any way as the entire records clearly indicate that the respondents -assessees were given a lumpsum contract of carrying out the job in the factory premises of Amitash Enterprises - activity will not be covered under the category of "Manpower Recruitment & Supply Agency service" - Revenue appeals rejected: CESTAT [para 6]


Divekar Associates Vs CCE (Dated: August 11, 2015)

ST - Period 1999-2003 - Carpentry work involving different types of furniture items, modular partitions, fixation of false ceiling, painting of walls and ceilings etc. cannot be classified under Interior decorator services - Appeal allowed: CESTAT [para 6.2, 6.3]



Saraswathy Agency Vs CCE (Dated: June 16, 2015) Service Tax - Penalty - Tax demand with interest and penalty adjudicated with concession of reduced penalty (25%) if paid within specified period - Case agitated before Commissioner (Appeals) who rejected the appeal, now agitated herein.

Held: The only co ntroversy in this appeal is whether concession in penalty to the extent of 25% of the tax liability discharged before the appellate authority disposed the appeal is deniable when such concession was allowed by adjudication order - appellant contended that the adjudication order was received by it on 21.12.2009, that they discharged tax liability as well as concessional penalty by 31.12.2009 - the department alleges that the concessional penalty was not discharged by 17.4.2009 since the adjudication order was dispatched on 18.3.2009 - The Department has not verified as to on whom the adjudication order was served; mere dispatch of the order may not result in inference that it was served on the appellant - Had the department verified the address of the addressee from envelope containing the order and caused an inquiry - In absence of any inquiry, appellant gets benefit of doubt of the service of the order upon it not earlier to 21.12.2009 - When the order came to the knowledge of assessee, upon service, the cru cial date for it to discharge penalty was 21.12.2009 and 30 days therefrom was to be reckoned - considering discharge of tax liability which is not in dispute by Revenue, penalty is reduced to 25% of tax liability which is also said to have been discharged by the appellant and not controverted by Revenue - appeal is allowed with consequential relief if any in accordance with law [Para 4, 6, 8]


E M Mani Constructions Pvt Ltd Vs CCE & ST (Dated: June 01, 2015) Service Tax - Items supplied free of cost by service recipient for services of construction of commercial or industrial complex - Do not form value of service as such is excludible for the purpose of the notification No. 20/2004-S.T. and 1/2006-S.T - Consequently service tax demand is unsustainable. (Para 2)


M/s Shiva Utensils Industries Pvt Ltd Vs CCE (Dated: May 7, 2015) ST - Refund - Appellants are manufacturer of steel utensils and exporter of the same - Refund claims filed under Notification No.17/09-ST dt.7.7.2009 for the service tax paid in respect of specified services received and used for the export of their final products from their factory rejected by lower authorities on the ground that the suppliers of services are registered under CHA services, therefore, they are required to issue invoices for agency services and not on the reimbursable expenses such as port fees, landing and container charges, dock fees, examination charges, terminal handling charges etc. for which the suppliers of the services are not registered. Held: As per CBEC circular No.106/9/2008-ST dt. 11.12.2008 the only requirement is that the exporter actually should have paid service tax and services have been received by the exporter which are to be mentioned in the invoices issued by the service pro vider - It is immaterial that service provider is registered in some other category and he has provided some other services - In the case on hand the invoices issued by the service provider indicate in detail the services which have been provided - It is a lso not disputed that the appellant has received the services and paid service tax thereon - refund admissible - appeal allowed with consequential relief: CESTAT [para 6, 7, 12]


Trans Engineers India Pvt Ltd Vs CCE (Dated: August 5, 2015) ST - Revenue cannot invoke the extended period of limitation when the records of the assessee were audited by the officers once but no short payment was noticed from records - Assessee audited in 2006 and again in 2008 for same/overlapping period and demand issued in 2009 invoking extended period of limitation - Entire demand set aside and appeal allowed: CESTAT [para 10, 11, 12]



National Insurance Academy Vs CCE (Dated: July 6, 2015)

ST - Applicant seeking extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs. Held: In the case of Venketeshwara Filaments Pvt. Ltd. - 2014-TIOL-2388-CESTAT-AHM it is held that consequent upon omission of 1 st , 2 nd and 3 rd proviso to section 35C(2A) of the CEA, 1944 by the FA, 2014 it is to be held that there is no provision for making further application for extension of stay and that the stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially - since the stay in the present case was in force beyond 07.08.2014, same would continue till the disposal of the appeal - Application disposed of: CESTAT [para 2, 3]


M/s Hindustan Petroleum Corporation Ltd Vs CCE (Dated: July 14, 2015) ST - BAS - Agreement between HPCL & IGL for distribution of CNG through HPCL owned/leased retail outlets - Revenue views that HPCL was providing BAS to IGL with regard to the sale of CNG through retail outlet of HPCL - There is no sale of natural gas or CNG to assessee and sale of CNG the retail customers is by IGL itself without an intermediary transfer of property in CNG in favour of assessee - Inasmuch as the activity of HPCL in marketing or sale of CNG belonging to IGL would fall within the ambit of Section 65 (105) (zzb) r/w Section 65 (19) of the FA, 1994 and, therefore, exigible to ST - Pre -deposit of 50% of tax demand and proportionate interest is ordered: CESTAT


Malabar Hill Citizens Forum Vs CCE (Dated: September 03, 2015) ST - Appellant collecting amounts for rendering aerobics and yoga classes - services are correctly classifiable under ‘Health and Fitness centre' services and chargeable to ST - Appeal rejected: CESTAT [para 4, 5, 7]



CCE Vs Deoram Vishrambhai Patel (Dated: August 04, 2015) ST - Ownership of Property and providing of taxable Renting of immovable Property service by the four appellants in this case is in their individual capacity and, therefore, their tax liability has been correctly determined by considering their individual renta l receipts and not collective one - Revenue appeal rejected: CESTAT [para 8, 9, 10, 11]



M/s Ahluwalia Construction Group Vs CST (Dated: July 28, 2015)

ST - Assessee contends that service rendered by it fell under works contract service, while revenue views that said services fell under Commercial or Industrial Construction Service (CICS) - Even CICS is a limb of works contract service and ST liability under compositional scheme under works contract service and with 67% abatement under CICS is approximately the same - Even when value of free supplies was not included in assessment value, it was entitled to 67% abatement in light of judgement in Bhayana Builders (P) Ltd. & Ors. 2013-TIOL-1331-CESTAT-DEL-LB - Activities of educational institutions cannot be said to be non-commercial in nature even if organisation which runs them is declared to be charitable under Income Tax Act - Assessee would be prima facie eligible for 67% abatement, pre-deposit of Rs.1.8 crores along with proportioned interest is ordered: CESTAT


CCE & ST Vs M/s Kanoria Chemicals And Industries Ltd (Dated: July 21, 2015) ST - CENVAT Credit on Effluent Treatment Plant services - Assessee has been issued permission by Gujarat Pollution Control Board to control discharge of hazardous waste in their effluent as a mandatory and statutory necessity - In view of decision in Indian Farmers Fertilizer Co-op. Ltd 2002-TIOL-146-SC-CX, when activity is required to be done mandatorily under a statutory obligation, then it cannot be said that the same is not in relation to manufa cture of finished goods in assessee's factory: CESTAT


CST Vs Viral Makers Ltd (Dated: June 25, 2015)

ST - Agreement is not that of a Commission Agent but a Depot Agreement between the Company and the Assessee - It is clearly evident that the activities of the Assessee would be termed as Sales Depot of the Company - The Assessee as a Depot Manager, shall handle the goods and also would cause the sale of the goods - definition of "Clearing and Forwarding Agent" covers any service either directly or indirectly connected with clearing and forwarding operations in any manner - expression "in any manner" has wide amplitude - we find that the appointment of the Assessee is not as a Commission Agent, but for Depot Manager, and therefore, it would be covered under the definition of "Clearing and Forwarding Agent" - It is well settled that the principle of res judicata would not apply in the taxation matter – submission that the Appellants were registered under "Business Auxiliary Service" which was accepted by the Revenue and therefore, Revenue cannot change their stand is not acceptable – Appeal rejected: CESTAT [para 8, 11, 12]


Shipping Corporation Of India Ltd Vs CCE (Dated: August 19, 2015)

ST - Appellants are experts in the shipping business and were called upon by the UT of Lakshadweep to assist them in finalising the kind of a ship that may be required for movement of men and material from island to mainland - appellant charged the UT for this assistance - ST not payable during the material period February 1999 to January 2004 under 'Consulting Engineer Service' as appellant not an engineering firm - Appeal allowed with consequential relief: CESTAT [para 8, 9]



M/s Cmi Fpe Ltd Vs CCE & ST (Dated: June 22, 2015) ST - Assessee availed input service credit during period October 2007 to February 2008 on sales commission in respect of service rendered abroad - CENVAT Credit on overseas commission would not be admissible and hence, the denial of CENVAT Credit on merit is sustainable - In view of various decisions of Tribunal, Board's Circular and decision of Punjab & Haryana High Court in Ambika Overseas 2011-TIOL-951-HC-P&H-ST, there is sufficient material to take up the view that assessee was holding a bonafide belief of admissibility of CENVAT credit on overseas sales commission - As assessee has taken the credit and duly recorded in CENVAT acco unt, thus, there is no material available to invoke the extended period of limitation - Accordingly, demand of CENVAT Credit alongwith interest and penalty for extended period cannot be sustained: CESTAT


M/s Nirmalsai Constructions Vs CCE & ST (Dated: April 30.4.2015) Service Tax - Waiver of Pre-deposit - Construction of transport terminal - Sub-contractor to L&T - Demand vis -à-vis entire contract raised against principal contractor was partly allowed by CESTAT - Part of the demand raised against Sub-contractor included in the main demand - On facts, pre -deposit waived and stay granted unconditionally. (Para 3)


CST Vs M/s Msim Global Support & Technology Services Pvt Ltd (Dated: February 13, 2015)

ST - Refund - Rule 5 of CCR, 2004 - Notfn. 5/2006-CE(NT) - Refund claimed of unutilized CENVAT credit of Rs.36,61,517/- on the ground that the output services were provided and that they were not in a position to utilize the credit of tax paid on input services - claim rejected on the ground that respondent could not satisfy that the services on which refund has been claimed have actually gone into the consumption of output services exported - Commissioner(A) setting aside order and, therefore, Revenue in appeal. Held: Division Bench in case of Morgan Stanley Advantage Services Ltd. - 2014-TIOL-2289-CESTAT -MUM has held that there cannot be two yardsticks in the sense that on one hand availability of CENVAT credit is not under dispute but for granting refund, dispute was raised - ratio of this judgement is directly applicable to the present case - Commissioner(A) has considered the issue in detail and given findings which are found to be absolutely correct and legal and same do not require any interference - order upheld and Revenue appeal dismissed: CESTAT [para 5]


Aam Services India Pvt Ltd Vs CCE (Dated: July 15, 2015)

ST - Rule 5 of CCR, 2004 - Notfn. 5/2006-CE(NT) - Refund of ST credit taken on input services and used for export services during the period January 2009 to March 2009 -Refund claim denied on the ground of limitation by contending that refund claim should have been filed within the period of one year from the date of raising of the invoices for the export services rendered. Held: There is no dispute as to the fact that the appellant had exported the services and are claiming the refund of tax paid on input services, which are used for providing such export service - it is also undisputed that the refund claims have been filed on 26/03/2010 and that foreign remittance have come during the period April to June 2009 - in view of this factual matrix issue is no more res integra as Tribunal in the case of Bechtel India Pvt. Ltd. - 2013-TIOL-1977-CESTAT -DEL had held that in case of export of services, export is complete only when foreign exchange is received in India and, therefore, the relevant date of export of services is date of receipt of foreign exchange; that since refund claims have been

filed within one year from the date of receipt of foreign exchange, they are to be held as filed in time and cannot be held as time barred - since issue is settled in favour of appellant, orders of rejection are set aside and appeal is allowed with consequential relief: CESTAT [para 6, 7, 8]


Bhadresh Trading Corporation Ltd Vs CST (Dated: July 22, 2015)

ST - Refund claim of ST paid on specified input services received and used for export of goods during the period October 2007 to September 2008 rejected on the ground that the appellant had not adhered to the conditions of Notification 41/2007-ST and that ST credit taken on Terminal Handling charges is not eligible for refund. Held: Entire case is that the condition (e) to the notification 41/2007-ST has not been satisfied - it is on record that the appellant has not filed or claimed drawback of the service tax paid on the specified services - in view of this, the rejection of refund claim is totally incorrect and not sustainable: CESTAT [para 7]

ST - Refund - ST paid on terminal handling charges are eligible for claiming refund under notification 41/2007-ST as held in the case of Stone Shippers - 2014-TIOL-2340-CESTAT -MUM - Order set aside and appeal allowed with consequential relief:CESTAT [para 8]


Shri B R Ajit Vs CC, CE & ST (Dated: July 7, 2015)

ST - VCES, 2013 - Words 'issued to a person' used in section 106 of FA, 2013 have to be construed as 'served to a person' - Intention for incorporating such an embargo is to dissuade persons against whom proceedings have been initiated, from taking the shelter of VCES - To be able to decide whether one is disqualified as per the law, the notice/order must be put to the knowledge of the person - Appeal allowed: CESTAT [para 9, 12, 13, 14]



M/s Classic Constructions Vs CST (Dated: July 20, 2015) ST - Demand of Rs. 52,72,521/- in respect of SCN dated 05.10.2011 and Rs.14,81,645/- in respect of SCN dated 15.10.2012 - O-I-O has been issued after hearing assessee on 17.10.2011 - No hearing was held in respect of SCN dated 15.10.2012, therefore prima facie demand of Rs.14,81,645/- has been confirmed in violation of principles of natural justice - As regards the remaining demand of Rs.52,72,521/-, as per Bhayana Builders (P) Ltd. & Ors. 2013-TIOL-1331-CESTAT-DEL-LB, benefit of abatement is available even when the value of free supplies is not included in assessable value - Thus, assessee is eligible for benefit of abatement rate of 67% under Notfn 15/2004-ST / No.1/2006-ST - Installation of plumbing, drain laying or other installation for transport of fluid is covered under definition of "Erection, Commissioning or Installation Service" (ECIS) - Pre -deposit of Rs.17.5 lakhs along with proportionate interest ordered: CESTAT


CST Vs July Systems And Technologies Pvt Ltd (Dated: May 13, 2015) Service Tax - Order in Appeal - Error apparent on record - Sustainability - Show cause notice was issued for demanding reversal of ineligible Cenvat credit utilized along with interest and penalty - Commissioner (A) erroneously considered the entire issue and converted demand of Cenvat into a claim for refund -Commissioner (A) conclusions patently unwarranted hence set aside - Revenue appeal is allowed - Matter is remanded to the Commissioner (A) for fresh decision. (Para 4)


M/s Toyota Construction Pvt Ltd Vs CCE & ST (Dated: August 11, 2015) ST - Assessees engaged in business of commercial and industrial construction - First issue is non-inclusion of cost of material received from service receivers in gross value of services provided - Issue is no more res integra in view of decision in case of M/s Bhayana Builders Pvt Ltd 2013-TIOL-1331-CESTAT-DEL-LB in favour of assessee - Demand of ST alongwith interest and penalty set aside: CESTAT

Assessee had took a definite stand before Adjudicating Authority that they have not collected entire amount as alleged in SCN from customers - They have also submitted Annexures in reply to SCN to substantiate their contention - Adjudicating Authority had not given any findings on these issues - He is also required to examine claim of abatement of assessee - Matter remanded: CESTAT


Tower Vision India Pvt Ltd Vs CST (Dated: July 30, 2015)

Service Tax - Admissibility of CENVAT Credit on Telecom Towers - Matter referred to Larger Bench - Reference to Third Member in Idea Cellular case to be referred to Larger Bench so that the present appeals also can be tagged to the Ideal Cellular case and heard by a Larger Bench. (para 5)

Section 129C(5) of Customs Act 1962 - Interpretation - It is evident from the language of the sub-section (5) of Section 129C that in case of difference of opinion, the President can refer the case for hearing on such point of difference by the one or more of the other Members of the Tribunal. It clearly means that the difference of opinion in a Division Bench need not necessarily and always be referred only to a single 3rd Member. (para 4)


2015-TIOL-1893-CESTAT-KOL

M/s Spml Infra Ltd Vs CST (Dated: January 21, 2015) ST - Demand of ST of Rs.3.02 crores confirmed against the appellant - Commissioner has categorically observed that from the contract between the appellant and WPDCL it is seen that there was no mention of the contract price separately, in respect of each item of the works - a lump-sum price was agreed upon for the total Project pertaining to the work of 'commercial or industrial construction service' - in view of these facts, prima facie, Bench not impressed with the contention of the appellant that the contra ct has a separate break-up for these services - force found in the contention of the Commissioner that the appellant was required to pay ST on the Advances received by them against the contract to be executed by them against the Bongaigaon Project - the appellant has, however, stated that they had paid ST on such Advances on lump-

sum basis - in view of the rival claims put forward by the appellant and the Revenue, it is found that their claim is required to be to be examined in detail, with reference to the terms of the contract, the books of accounts maintained by the appellant and the other evidences put forth by both the parties -however, in view of various facts of this case, prima facie, the appellant has not been able to make out a case - appellant directed to make a pre-deposit of Rs.20 lakhs : CESTAT [para 4]


M/s Jain Irrigation Systems Ltd Vs CCE (Dated: June 29, 2015)

ST - Refund - Notfn. 17/2009-ST - An amount of Rs. 7,41,617/- denied on the reasoning that activities performed in foreign port will not attract service tax under 'port service' - No amount can be collected from the assessee by the Revenue if it is not in accordance with the tax law, as has been provided under Article 265 of the Constitution of India - Amount of tax credited to the exchequer on which admittedly no ST is leviable takes the nature of deposit and the Commr.(A) is in error in refusing the refund of the same - Appeal allowed and adjudicating authority directed to refund Rs.7,14,617/- with interest as per rules within 45 days: CESTAT [para 6]



Bharat Sanchar Nigam Ltd Vs CCE (Dated: July 16, 2015)

ST - Primary adjudicating authority relied upon data provided by assessee itself to arrive at amount of ST short paid - Assessee unable to show as to how those calculations are not correct - It has not been able to provide any reconciliation statement to establish that figures made available by them earlier had factual errors - Assessee had not been submitting ST -3 returns and provided figures only as a result of persistent follow up by Revenue - Therefore, wilful mis -statement/suppression of fact on its part is evident - The fact that even after so many years, assessee has not been able to provide even CA's certified final figures to show that figures earlier submitted by it were incorrect in any manner - No infirmity in impugned order: CESTAT


M/s Dhanuka Agritech Ltd Vs CST (Dated: July 16, 2015)

ST - Cenvat credit as Input Service Distributor - Assessee has claimed Cenvat credit on debit notes - Amount was not included in closing balance in ST-3 returns for month September, 2008 due to clerical error - Some of these debit notes do not bear service tax registration number - Assessee asserted that service tax as per these debit notes have been paid and that they are able to establish the same - Adjudicating authority shall examine debit notes - Matter remanded: CESTAT


Emtici Engineering Ltd Vs CCE, C& ST (Dated: July 22, 2015)

ST - For the same activity and overlapping period, jurisdictional authorities demanding ST under “BAS” and the DGCEI demanding ST under the category “C&F Agency service” - both SCNs issued a month apart adjudicated by CCE six years apart and demands confirmed - Adjudicating authority should have decided both SCNs together

- no clarity on facts - Matter remanded: CESTAT [para 10, 11]



Neelettu Construcions Vs CCE, C& ST (Dated: April 16, 2015)

Service Tax - Appellate Commissioner - No power vested in himas a revisionary authoritytoreview or revise the order in appeal -Adjudicating authority in his discretion dropped penalty while confirming demand and interest -Appellate Commissioner's order reversing the order-in-original and imposing penalty is patently illegal - Impugned order set aside - Appeal is allowed with consequential relief. (Para 3)


Inox Leisure Ltd Vs CCE & ST (Dated: July 27, 2015)

ST - CENVAT credit availed by assessee on certain common input services - No separate accounts for dutiable and exempted services - Assessee vide letter opted for payments at prescribed percentages on value of exempted services under Rule 6 (3) of CCR, 2004 and also paid amounts for earlier periods 2008-09 and 2009-10 - Assessee has all through opted for payment of amounts as per prescribed percentage of value of exempted services, may be at a later date - No bar for making payments as per prescribed percentages for prior period also as it may not be feasible to segregate quantum of input service credit pertaining to dutiable and exempted services - Assessee's action of paying amounts as per option above for past period is justified: CESTAT


Mahavir Transport Vs CCE (Dated: July 02, 2015)

ST - Appellant had not discharged the ST liability for the period October 2005 to December 2005 under the head Cargo Handling Service but under the head 'Transport of Goods by Road' and availed ineligible benefit of abatement - on being pointed out by audit team, appellant correcting classification and also discharging differential service tax liability along with interest in March and May 2007 - SCN issued for imposition of penalty and which were imposed by adjudicating authority and upheld by Commissioner(A) - appeal to CESTAT. Held: Activities undertaken by appellant can be classified into any of the services and appellant might have entertained a bonafide belief that the services rendered can be classified under the head 'Transportation of goods' and eligible for exemption of abatement - appellant had also made good the differential tax liability with interest - in this view of the matter the Tribunal decision in Tidewater Shipping - 2008-TIOL-1011-CESTAT-BANG as affirmed by Karnataka High Court will apply in full force - imposition of penalties not in order - appeal allowed to the extent it contests the penalties: CESTAT [para 6, 7]


Jsw Steel Ltd Vs CCE (Dated: July 21, 2015) ST - Refund - 41/2007-ST - Requiring the appellant to produce evidence as to payment of service tax by the service provider to the GOI is a non-starter and a curious finding - It is a common sense that no one will be allowed to enter the Mumbai port trust area and export without paying the changes/fees to port trust -

Refund claim in r/o ST paid on Port Services & CHA services is to be allowed as they are input services for export of manufactured goods - Appeals allowed with consequential relief: CESTAT [para 8, 9]



Lalit Dongre Vs CCE (Dated: August 07, 2015) ST - Appellants are in receipt of commission/facilitation for the sales which are derived on the basis of purchase made by distributors appointed by the appellant and further down the line - it cannot be denied that the arrangement is nothing but multilevel marketing scheme - ST Demand correctly confirmed under BAS: CESTAT [para 6.1, 6.2]



Pioneer Publicity Corporation Pvt Ltd Vs CST (Dated: July 30, 2015)

ST - When the allegation in the SCN is of undervaluation and demand of differential tax liability and question of re-classification was never charged, both the lower authorities have misdirected their findings to classify services under Advertising agency - since there is no dispute that the appellant has collected amounts as "display charges" from LIC and New India Assurance and failed to discharge ST liability by not showing in their ST returns, order confirming demand is upheld and appeal is rejected: CESTAT [para 8, 9]



Hardesh Ores Pvt Ltd Vs CCE (Dated: July 29, 2015) ST - Refund - It is seen that the appellant had worked out and discharged ST liability considering the amount recovered from their customers as cum-tax amount - if that be so, it would mean that the amount which has been billed by the appellant to their customers and paid by them includes ST liability and same has been passed on to the customers - appeal fails on the ground of unjust enrichment: CESTAT [para 8, 9]



CST Vs M/s Macmillan India Ltd (Dated: May 1, 2015)

Service Tax - Cenvat credit of service tax paid on Advertising, Security and Manpower Recruitment and Supply - Admissible - Amendment of Notification No. 05/2006 introducing words "in or in relation to” for the word 'in' - Cannot be restrictively interpreted to deny the benefit of refund under said Notification - Impugned order allowing benefit of refund suffers from no infirmity - Revenue appeal hence rejected. (Para 2)


Global Associates Vs CCE & ST (Dated: June 1, 2015)

Service Tax - Waiver of pre -deposit - Cargo handling services - Loading and unloading of ores from railway wagons through conveyors concentrate storage sheds - Chargeability of activity under Cargo Handling services is contentious and need detailed consideration - Appellant found to have collected nearly Rs.1.50 crores toward service tax but failed to deposit a single rupee with the government thus is liable at least to deposit the amount collected - The decision of Rajasthan High Court relied upon by appellant on point of limitation, has not ruled that in all the stay petitions filed prior to 06/08/2014, the amount of deposit should be limited to 10% - On facts, appellant directed to deposit Rs.1.05 crores to hear the appeal - Pre -deposit of determined amount ordered with balance due is waived. (Para 3)


CCE & ST Vs Intermedia Cable Communication Pvt Ltd (Dated: August 6, 2015) ST - Multi System Operator (MSO) - In the absence of any additional evidence of there being a larger subscriber base, the differential ST liability for the period January 2006 to September 2009 has to be held as being worked out based upon presumptions and assumptions - Adjudicating authority is correct in dropping proceedings - Appeal rejected to this extent, however for the period October 2005 to December 2005, Revenue appeal allowed in view of Tribunal decision in appellants own case reported as - 2014-TIOL-1659-CESTAT-MUM - interest payable but no penalty as major portion of demand set aside and as there could be confusion in the mind of the respondent: CESTAT [para 8, 9, 10]



M/s Airlift Container Line Vs CST (Dated: April 29, 2015) Service Tax - Air/Ocean freight agent - Freight charges collected toward transportation service post March 2010 - Held prima-facie not taxable under Customs House Agent (CHA) service - Pre-March 2010 period in question, appellant was merely identifying transporter and organizing freight transportation and absent evidence to show that no tax has been paid on the transportation activity, levy of tax especially in absence to show that appellant was a C & F agent of any of the customers of those transactions, is unjustified - For levy of service tax there is much more than freig ht element involved and logistical support involves many types of activities and not mere transportation - Prima-facie case made out by appellant for complete waiver - Pre-deposit waived. (Para 2)


M/s Acuprint Systems Vs CCE & ST (Dated: May 22, 2015) Service Tax - Cenvat Credit of service tax paid on transportation of employees being directly related to assessee's business - Allowed. (Para 2)

Service Tax - Outdoor catering service - Appellant already reversed proportionate credit attributable to the amount recovered from their employees for providing 'outdoor catering service' - Is entitled to credit of tax paid on said service. (Para 2)


Larsen And Toubro Ltd Vs CCE (Dated: July 17, 2015)

ST - Even if it is held that there was a service component in the form of supervision of erection and commissioning of the plant supplied, the said service was manifestly rendered free of cost and thus no service tax liability can arise in this case as the value of the goods supplied cannot be included in the assessable value even as per Notification No. 12/2003-ST as no Cenvat credit has been taken by the appellant in respect of such goods: CESTAT [para 6, 7]



M/s Mah India Vs CST (Dated: June 26, 2015)

ST - Certain services were utilized by assessee at their offices at Gurgaon and Hyderabad but credit thereof has been taken by them at their registered office at New Delhi - As per Stainless India Ltd. - 2014-TIOL-635-CESTAT -DEL , whereas there is no dispute regarding availment of Cenvat Credit by assessee in their other locations, assessee is entitled to take Cenvat Credit at their registered office - Appeal allowed: CESTAT


Megma Design Automation India Pvt Ltd Vs CST (Dated: May 13, 2015)

Service Tax - Input output services - Nexus - Held credit of service tax paid on Transport services, Air travel agent services, Business Support Services, Food coupons and catering services, Management Consultants, Management, Maintenance or Repair Services, Telecommunication Services, Renting immovable property services, Insurance Auxiliary Service, Business Auxiliary Service, Courier Services - Allowed - Appeal allowed with consequential relief - Matter remanded to the original authority for quantification of the refund claim and payment. (Para 3)

2015-TIOL-1836-CESTAT-HYD

M/s Zenith (Bangalore) Rollers Pvt Ltd Vs CCE (Dated: May 26, 2015)

Service Tax - Classification - Re-rubberization of old and worn out spindles for the printing industry by fresh coat of vulcanized rubber - Activity held classifiable as Business Auxiliary Services in the light of Zenith Rollers ratio and falls within the ambit of exemption Notification No.14/2004-ST dt. 10/09/2004 - Impugned orders denying benefit of Notification by classifying the said activity under Management, Maintenance or Repair (MMR) quashed and appeal allowed with no costs. (Para 4, 5)


Century Star Vs CST (Dated: May 13, 2015)

Service Tax - Transportation charges within the port from warehouse to wharf and vice versa during the years 2006-07 and 2007-08 - Allowed under GTA service - Post 2010, the Finance Act treated all services rendered within the port area as “port service” - Prior to 2010, services rendered within port are classified according to the category and nature of service - For the period in dispute, appellant was engaged in transportation within the port from warehouse to wharf and vice-versa - Held justified

in believing that services rendered covered under GTA service - Authorities below failed to show how inter carting work undertaken by the appellant amounted to rendering of steamer agent service - Since the appellant paid entire amount of tax along with interest prior to issue of show cause notice, without contesting issue of classification, held is entitled to the benefit waiver of penalty by invoking provisions of Section 80 - Appeal thus allowed confirming demand and interest. (Para 3)


M/s Windsor Machines Ltd Vs CCE & ST (Dated: June 9, 2015) ST - Canteen/catering services - Once the assessee had produced a CA's certificate from competent authority and claimed that no cost of food recovered from its employees, then the same cannot be brushed aside by Revenue on a presumption without taking any alternative opinion from an expert that such a cost has been recovered from its employees - No documentary evidence has been brought on record by Revenue that some portion of cost of food supplied by assessee is recovered from employees - Entire ST credit is admissible to assessee and order passed by First Appellate Authority is set aside: CESTAT

cestat ruling (service tax)

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